Why visiting president might be arrested during Uhuru's inauguration

If arrested, the president will be taken directly to the ICC at the Hague.

In the letter to the CS, through Nderitu & Partners advocates, which cited previous arrests, the ICJ has demanded that the South Sudan president who is said to be running for the seventh term in office be arrested.

“We have received information indicating that President Omar al Bashir is expected to be among the State guests due to attend the swearing in of Uhuru Kenyatta scheduled to take place on Tuesday,” reads the letter addressed to the duo.

It added: “We are concerned about his imminent travel to Kenya, and we have instructions from our client to formally lodge our client’s protest to his intended travel, and to request you to cause his arrest should he come to Kenya.”

The decision by ICJ to write to CS Matiang’i and AG Githu Muigai is a culmination of High Court judge Nicholas Mombija's judgement who ruled in 2012 that the Sudanese president was liable to an arrest “should he set foot in Kenya in future.”

“We request you as the State Officer in charge of Internal Security and Coordination of Government, and as principal adviser to the Government under Article 156(4)(a) of the Constitution, respectively, and as members of the Committee to the Assumption to the Office of President, to advise the President that President al Bashir’s invitation and subsequent presence on the territory of Kenya amounts to a breach of the Constitution, the International Crimes Act, and the Rome Statute of the International Criminal Court,” reads the letter.

The letter adds: “By way of background, a warrant for the arrest of President al Bashir was issued by the High Court of Kenya at Nairobi in High Court Miscellaneous Criminal Application No. 685 of 2010. We expect, by virtue of the fact that your respective offices were part of that litigation process, that both of you are aware of these factual circumstances.”

Omar Al Bashir is a Sudanese dictator whom the International Criminal Court (ICC) has tagged for arrest. He has been rarely leaving his country.

Already the Hague based ICC court issued two warrants for Bashir, one dating from March 2009 on five counts of crimes against humanity and two counts of war crimes, and one issued in July 2010, on three counts of genocide.

Bashir has continuously denied the charges, saying they are part of a Western conspiracy against him.

“Apart from cooperation with the ICC as a matter of treaty obligation, the Government of Kenya and its officers are bound by Article 2(6) of our Constitution which provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution,” the letter to CS Mataing'i concluded.

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