The Kenyan Judiciary and Foreign Policy: The case of President Omar al-Bashir

In any state based on a constitution, there are certain basic values that are held in esteem. Among these is the separation of powers and checks and balances. Thus, in such states one often encounters three branches of government namely the executive, legislature and judiciary. Each branch with a specific task and given power to check the powers of the other two.

As relates foreign policy, the chief driver thereof is the executive. The executive is deemed to be the responsible arm of government that conducts foreign relations with other states. However it’s power is checked by the other branches of government and thus to attain the objectives it enunciates in its foreign policy there must be some sort of internal diplomacy.

The above brings into sharp focus the role of the judiciary, if any, in foreign policy execution. Without entering into the debate in this present entry, it is agreeable that the decisions of courts do have an impact on the execution of our foreign policy. I use the Bashir case as an example.

In 2011 the High Court of Kenya issued orders compelling the executive to arrest President Bashir if and when he sets foot on Kenyan soil. Recrimination was swift and clear. Khartoum recalled her ambassador and the executive was thrown into a diplomatic crisis. By that one decision the courts became an actor in the implementation of our foreign policy.

What did the decision mean for Kenya’s foreign policy? One is that Bashir became essentially persona non grata. He was no longer welcome in the country. The chief diplomat representing the government of Sudan was no longer welcome in Kenya. It therefore limits options of a summit bilateral diplomacy between Kenya and Sudan. This type of diplomacy is said to be the most effective as it cuts through bureaucracies and gets straight to the issues thus an advantageous option for Kenya.

In the same breath, the judgment bred suspicion. In the realm of international politics perception usually counts for everything. Human beings, according to Machiavelli, hardly looking beyond the surface make conclusions based on what they can see at first without so much as a second thought. Thus the government of Sudan must have perceived this as a message to Sudan that Kenya would cooperate with the ICC in Bashir’s arrest. Thus it was ready to sever ties with Kenya when it asked our ambassador to leave Khartoum within 72 hours and asked her ambassador to return home.

Results of severing of ties? Worst case scenario would be that Kenya would lose the lucrative trade balance tipped in her favour. According to estimates by the Export Promotion Council, Sudan’s imports from Kenya was at Ksh.12.75 billion in 2009. In contrast, her exports to Kenya was at Ksh.11.64 million. Clearly Kenya was gaining in this trade and would have lost it if Sudan would have effected the severing of ties.

Another implication would have been the possible expulsion/harassment of Kenyans living and working there. Without an embassy to report such cases, there lives would be very difficult to sustain and would necessitate them to come back home. This would create headache for the government in terms of settling the accounts on the investments that these Kenyans might have had in Sudan.

Therefore from a cost-benefit analysis, Kenya would stand to lose more from following international law in arresting Bashir than by ignoring it. I know it may sound very cruel since the man is accused of great atrocities. However, looking at the reality of international politics, many nations seldom adhere to international law principles if they cannot use it to justify their actions or the pursuit of their interests. This is called political realism.

Through the actions of deft diplomacy, there is a ceasefire of sorts. The Sudanese government has suspended its decision to expel our ambassador pending the outcome of the decision of the Court of Appeal. I am aware that there is an appeal that is sub judice and the executive through the office of the Attorney General is fighting hard to reverse the decision. It may very well be that Kenya-Sudan relations will be hinged on this decision.

However as far as the Kenyan judiciary goes, I am unable to see it relenting on its position in this matter. The new found independence and the rise of judicial activism has so much intoxicated those that call themselves reformers therein to such an extent that they would want to outdo each other on the strict interpretation and application of the law.  I do not see the Court of Appeal reversing the decision as it is.

In analyzing all this, one must also factor in the political implication of the Lamu Port-South Sudan Ethiopia Transport And Economic Development Corridor commonly known as LAPSSET. Since it provides South Sudan with an alternative facility to refine its oil, it means that it directly affects the interests of Sudan further fanning the perception that Kenya is a threat to its national interests. This further complicates matters for the executive in managing our relations with Sudan.

The executive must therefore work out its plans in the knowledge that today’s judiciary seeks above all to stamp its independence which may mean that its work would be more often than not more complicated. One question that resounds in these set of circumstances is whether the courts ought to consider matters of policy while making decisions on matters of law. One thing is for sure, if this decision is anything to go by, the answer is no.