Protestors demanding the arrest of Sudan’s President Omar al-Bashir who was in Kenya to witness the promulgation of the new constitution on August 27. Photo/AFP.

President Kibaki and Prime Minister Raila Odinga submitted conflicting testimonies in the case that led to an arrest warrant being issued against Sudan’s President Omar al-Bashir, illustrating how conflicts within government can undermine the country’s standing in the region. (Read: Kibaki urged to invite Sudan's Bashir)
The judgment by High Court Judge Nicholas Ombija has triggered one of the biggest diplomatic spats in the country’s history with Sudan threatening a series of sanctions in protest.
The government’s case was not helped by written submissions given by the International Commission of Jurists-Kenya chapter which demonstrated to the judge that the coalition was divided on the al-Bashir question.
ICJ had gone to court after reports emerged that Kenya had invited the Sudanese president to a regional meeting in Nairobi to discuss the January 9 self-determination referendum in the South.
The petitioner, ICJ executive director George Kegoro, wrote two letters to the President and office of the Prime Minister over the matter and filed a case in court seeking orders compelling the state to arrest al-Bashir if he ever sets foot in Kenya.
Dismiss case
The State counsel representing the government told the court that the case should be dismissed because the Foreign ministry had indicated that the contentious conference would be held in Addis Ababa.
The office of the Prime Minister made a similar observation but went further to dissociate itself from the position taken by Foreign Affairs ministry and, by extension, the President on al-Bashir’s visit to Kenya for the promulgation of the Constitution.
“The Applicant on 19th October 2010 wrote two letters,” the judgment reads in part. “One, to His Excellency the President and another, to the Right Honourable the Prime Minister of Kenya, Raila Amolo Odinga, raising concerns over the possibility of a second visit by President Omar Ahmad Hassan al-Bashir calling on the two principals to take their international and domestic obligations seriously. Copies of the two letters are exhibited and marked “GK 9” and “GK 10” respectively.
On 9th November 2010, the applicant received a response from the Prime Minister’s office exhibited and marked as “GK 11” indicating that the Intergovernmental Authority on Development meeting had been moved from Nairobi to Addis Ababa.
“The said letter also pointed out that the presence of President Omar Ahmad Hassan al-Bashir in Kenyan’s territory on 27th August, 2010 was not a matter of mutual agreement within the Grand Coalition.”
The evident divisions on the matter strengthened the ICJ’s case, and the petitioner asked the judge to take note of the fact it was difficult to understand the official government policy on matters relating to the International Criminal Court (ICC).
“It was the applicant’s last and final position, that the disjointed approach in responding to requests from the International Criminal Court is a testimony of the different interests that are at play in the Grand Coalition Government when it comes to issues touching on the Rome Statute,” said Mr Justice Ombija. “Hence the applicant’s interest in prosecuting this application in line with its objectives and mandate.”
The divisions in government over a series of issues, especially those involving external affairs, are viewed as weakening Kenya’s hand in handling foreign policy matters in the region.
Uganda’s President Yoweri Museveni, in particular, has been known to tell visiting Kenyan delegations that he does not understand Kenya’s government policy and often looks for party and ethnic positions on various issues.