Wrangles evidenced recently between Kenyan Judiciary and the executive over the ruling that Sudanese strong man, Omar Bashir, be apprehended shall he visit Kenya, left many analysts flabbergasted. One judge, Ncholas Ombija, made a historical ruling when ordered the Minister for Internal Security to see to it that when Bashir sets foot on Kenyan soil, he be apprehended and handed over to The Hague to face the music. We used to read about such rulings made by European judges, famous ones being those that were made by Spanish Judge Fernando Andreu, and French judge Jean-Louis Bruguière, who in April 2008 and November 2006 respectively, indicted Rwandan President, Paul Kagame. When these two justices indicted Kagame, many people wrongly thought that this was a venue for only European judges. Now that Ombija has open Pandora’s Box for our bigwigs, who will be safe?

More on Kenyan justice, this historical ruling did not augur well with the executive. When cornered the vulture cries wolf. Deputy Minister for Foreign Affairs was quotes as saying that the government would not abide by the ruling of its own court. What a dangerous stance? The Minister went on saying that Kenya will abide by the position that was taken by AU opposing the indictment of Bashir. How can a free country endanger its freedom for the sake of an individual who is not its citizen? Legally and logically, the constitution of Kenya is above that of AU. Whatever Kenyans do, Kenya comes first. Even if we look at two international instruments playing in this fracas, why is Kenya upholding AU’s non-binding decision whilst it violates Roma Statutes that Kenya signed voluntarily? Why is it that Kenya wants to abuse its own new constitution before even it marks a year? Why doesn’t Kenya do like Uganda that distanced itself when Bashir was invited to a conference in Kampala. Uganda successfully avoided unnecessary legal and political wrangling.

Again, Kenya is a member of East African Community. Doesn’t it see that by doing what one of its counterparts avoided, it is offending the same counterpart? It is shocking and sad that the Minister does not get it that AU has lost its legitimacy so as to support illegitimate regimes, even when they have committed atrocities against their people as it is the case with Bashir. Many were shocked to hear such law-breaking and self-inculpatory words coming from the Minister. To add insult to injury, thereafter, the Minister for Foreign Affairs was dispatched to Khartoum to mend fences. If anything, though the government in Nairobi is still flexing its muscles, the dent… deep and humongous one… has already been made. Will it be wise for the government that came to power after vanguishing dictatorship to taint its image in the defence of a dictator just the same as the one it toppled? Isn’t this high order hypocrisy?

Will Kibaki uphold the constitution and serve the Kenyans that voted for him or trumple over it and serve Sudanese strong man, and for what reasons and gains? Chances are that the executive is waging a losing battle for its peril thanks to the fact that the justice made his decision based on the provisions of the new constitution. Therefore, whoever advises Kibaki should be wise to underscore the fact that, under the new constitution, nobody is above the law. If the executive is still thinking by using the past-frozen brain when the president was above the law and the executive above judiciary, needs to be told that things have long changed. Although Kibaki spoiled the party at the promulgation of new constitution by inviting Bashir, why should he add more salt to injuries? By then thanks to the euphoria Kenyans were in, he got away with it. Will he get away with it once again? The answer is nope. Logically, it doesn’t add up even make sense for Kibaki to dent his image siding with a stinking dictator indicted for committing genocide against his own peole. What transpired in 2008 seems to have not given a lesson to Kibaki and all those that think that they can take the hoi polloi for a ride.

Moreover, chief justice Dr. Willy Mutunga has already weighed in very heavily and categorically so to speak. Responding to rants that the executive were not thinking about complying with the ruling, Mutunga was quoted as thus: “The Judiciary and its officers shall not be intimidated to bend the law”. To make his message clear, Mutunga added that Kenya must choose between anarchy and the rule of the law. Suppose the executive stick on their guns, will the judiciary allow itself to be cowered or stiff its neck and therefore create a crisis especially at this time Kenya is at war with al-Shabaab? What is the right thing to do under such circumstances?

In essence, Kenya has nothing to lose by dumping Bashir. We all know that Kenya is a major economc and political player in South Sudan. Shall it keep on thinking it can serve two masters namely Bashir and South Sudan? It should not wonder when South Sudan decided to part ways with it. For the French sage has it that “les amis des mes sont mes amis”, namely the friends of my friends are my friends. What of the enemies of my friends? They are obvious my enemies.

In sum, let us face it: will the Kenyan executive seal ignore the truth and go on defending Bashir by violating its own constitution? What precedent does the executive make in the first place? What legacy is Kibaki making? It time to warn Kenya that doing Bashir’s laundry will leave it messy and stinky.

Nkwazi Mhango is a Tanzanian living in Canada. He writes regularly for “The African Executive” and also has a blog entitled “Free Thinking Unabii”. He is a regular contributor to AfroSpear.

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