The principle of separation of powers differentiates between the powers held and exercised by the legislature, the judiciary and the executive. The principle of separation of powers contains an element of independence of the three separate arms of government i.e. none can assume the competence or functions the other or interfere with another’s powers to the extent that power is rightly exercised.
This separation means that the judiciary should be able to work without interference from the executive or the legislature, and that judges should be able to judge cases independently, impartially and in accordance with the law. A judge should not be an instrument of politics, and a judge should not be political worker who executes decisions of the executive. A judge is subject only to the law, and the law should not be used to influence verdicts as the law is intended to be general and neutral. The Executive’s interference in the judicial ruling ordering the issuance of a warrant of arrest against Sudan’s President Omar al Bashir threatens to undermine both the principal of separation of powers and independence of the judiciary.
Earlier in the week High Court Justice Nicholas Ombija issued a warrant of arrest against the President of the Sudan Omar al Bashir stating “The order should be effected by the Attorney General and the Minister for Internal Security should he [the President of Sudan] ever set foot in Kenya.” The warrant was issued in response to an application filed by the International Commission for Jurists Kenya Chapter following President Omar al Bashir’s controversial visit to Kenya during the promulgation of the constitution on the August 27 last year. According to the Rome Statute and other international laws to which Kenya is signatory, Kenya was obligated to enforce or at least attempt to enforce the warrant of arrest issued by the International Criminal Court (ICC) against President Omar al Bashir.
The ruling was a bold one given Kenya’s cases at the ICC and the potential political, and diplomatic backlash. The ruling however showed an adherence to the law, independence of the judiciary and an end to the days when political and diplomatic expediency overrode the operation of the law.
The response to the ruling from both the Government of Kenya and the Sudanese Government has been swift. The Government of Sudan gave Kenya’s envoy to Sudan 72 hours to leave the country and recalled its ambassador to Kenya for consultations. Meanwhile in Kenya the Ministry of Foreign Affairs has gone into damage control mode. Dismissing the court order the Minister of the Foreign Affairs recently declared “We don’t support the ruling because you cannot arrest a sitting President of a neighbouring country regardless of the circumstances, it is an insensitive ruling.” The Minister has also said that the Ministry will appeal will appeal the court’s ruling.
However one wonders why the Ministry of Foreign Affairs would be the institution to appeal High Court’s ruling, couldn’t the Government of Sudan lodge an appeal through its Embassy here? And further what message is the Ministry of Foreign Affairs sending to the Judiciary with regard to making rulings that are neither politically or diplomatic expedient? The argument has also been made by the Ministry that the African Union (AU) and IGAD’s positions and resolutions on the ICC should be taken into account and cannot be ignored, however the counter argument is that a binding treaty whether international, regional, or continental takes precedence over a non-binding resolution or position.