What is a Kenyan Foreign Minister doing with a Fugitive?

Those who were present at the last 14th ASP * in The Hague probably would recognize the photo of Madam Amina Mohamed, the Kenyan Foreign Affairs Cabinet Secretary, who headed a large delegation to the weeklong ASP meetings late November 2015. On December 21, 2015, she was featured in a photograph sitting along with President Omer Al-Bashir in Sudan’s presidential palace. The photo raises a question: what the senior Kenyan official is doing in Khartoum meeting with President Omer Al-Bashir, a fugitive of International Law, wanted for war crimes, crimes against humanity, and genocide committed in the Darfur region of Sudan?!

The news article in Sudan Tribune associated with the photo noted that Madam Secretary jointly chaired Sudan-Kenya ministerial committee meetings in Sudan. According to Sudan Foreign Minister Ibrahim Ghandour the meetings were successful and fruitful and the two countries (Kenya & Sudan) agreed to confront the International Criminal Court (ICC). The plausible answer then to the question above is that Kenya is campaigning and leading a fight against the ICC. Thus, it is not surprising that Kenyan diplomats are ready to sit down with thugs like Al-Bashir in order to undermine international justice. The trouble is that Kenya tries to portray itself as a democracy that respect the rule of law, peace and security, but every time Kenyan diplomats talk about issues of international justice they unmask the true Kenyan government policy that has little value for those concepts. What we are talking about is not just the level of arrogance and pretentious behavior that usually accompanies Kenyan politicians when they address these issues at home or abroad, but the bizarre governmental policy openly aimed at protecting impunity in Africa.

In recent months Kenyan ruling party of President Uhuru Kenyatta preoccupied itself with a campaign against the ICC. Prior to Madam Secretary’s ostentatious show in The Hague, the Majority Leader of the Kenyan National Assembly, Mr. Aden Duale, said that “we are signatories to the Rome Statute by will and will walk out any time we want.” On November 26, 2015, Reuters reported:  “Kenya ready to leave ICC over Rule 68 application in William Ruto case.” Such statements about withdrawing from the ICC have become commonplace by Kenyan politicians ever since the ICC indictment of both President Uhuru Kenyatta and his Deputy William Ruto on charges of crimes against humanity back in 2011.

As to Madam Secretary’s meetings in Sudan, no one knows in details what transpired between Amina and Al-Bashir at their close-door meeting. But one would hope that Madam Secretary did not mislead Al-Bashir by telling him that the Kenyan delegation was successful in their bid to defend Deputy President William Ruto in The Hague and that Kenya will help to lobby successfully for withdrawal of Al-Bashir’s case as well. Most importantly, Secretary Amina should know better that when she left The Hague she left behind a diplomatic embarrassment, not a success. And despite her country’s numerous attempts to rally African countries to pull out from the ICC, only Uganda had supported the effort. Sudan could add nothing to the effort since Sudan is not a party to the Rome Statute.

Instead of mesmerizing Al-Bashir about Kenya’s international political clout and offering Al-Bashir a false protective blanket of impunity, the Government of Kenya would do better by being on the good side of history and ensuring that African victims everywhere are protected under the law, nationally or internationally.

Since the ICC indicted President Al-Bashir on charges of war crimes and crimes against humanity in 2009, and then on charge of genocide in 2010, instead of doing something to spare the lives of innocent civilians in Darfur, Al-Bashir has further released brutality on the people of the Nuba Mountains and the Blue Nile State. Does Madam Secretary feel any moral responsibility to take the opportunity and ask Al-Bashir about the fate of Sudanese victims?

In fact, we want to know if Kenyan diplomats can tell us whether the Kenyan justice system has tried any suspects of crimes against humanity in Kenya, and whether Sudan’s justice system has charged one individual from among the number of genocide suspects in Darfur. Who owes a duty of care and justice to Sudanese and Kenyan victims of mass atrocities? No Sudanese or Kenyan politician will dare to contemplate an answer.

It is now clear that Kenya is very much interested in ensuring that the ICC drops the criminal case against Deputy President William Ruto. Al-Bashir has long wished the ICC would dropped the case against him. Neither Kenya nor Sudan appear to care at all about justice for the victims of atrocity crimes in their countries.

Al-Bashir probably asked Madam Secretary about how President Kenyatta managed to get his case drop by the ICC. By answering that question, Madam Secretary must have been obliged to give a hint:  that it is helpful to have witnesses who recant their testimonies, or die, or disappear.  Al-Bashir will get the clue.

When Madam Amina affirmed to Al-Bashir that they will join forces to confront the ICC, she missed the point. And the point being that the United Nations Security Council has the power to refer to the ICC a situation in any country that may constitute a threat to international peace and security regardless of a country being party to the Rome Statute. Perhaps, Madam Amina did not notice that Sudan is not a party to the Rome Statute; yet Al-Bashir was indicted by the ICC as a result of UN Security Council referral. To achieve their political goals, both Kenya and Sudan should take their confrontation to the UN Security Council instead of scapegoating the ICC. Or better yet, team-up and pull out of UN membership altogether. Al-Bashir cannot even defend himself at the ICC let alone share Kenya’s threats about withdrawing. It will be interesting to witness Kenya making ‘history’ by becoming the first country ever to withdraw from the ICC.

Let there be no misunderstanding about prosecution of international crimes such as genocide, war crimes and crimes against humanity.  It happened at Nuremberg, in Tokyo, at the Yugoslav Tribunal (ICTY), and the Rwandan Tribunal (ICTR).  Justice will certainly be served at the ICC in The Hague. Humanity made great progress in the area of international justice and will move forward in spite of retrograde forces such as those at work in Sudan and Kenya. Notwithstanding the challenges and set-backs the ICC is facing, international response to serious atrocity crimes will stay its course.


14th ASP* – 14th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC), The Hague, from 18-26 November 2015.

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