Peter Mwaura

3 September 2010

opinion

Nairobi — Kenya and the African Union have challenged the world with new jurisprudence on the applicability of international law over Sudanese President Omar al-Bashir's visit to Kenya. The legal thinking is grounded on the rules of conflict of laws.

The challenge should not come as a surprise to international law experts and jurists because there is no single body that creates international law. It is developed and agreed upon by those that make up the international community.

Sources of international law include, among other things, local custom, state practice (how states behave in practice), general principles of law, equity, and reason.

And international law must continue to evolve and must be applied, as the AU says, without "pretensions and double standards." Kenya and the AU, in their challenge to the world, are on pretty firm ground as they are using the same rules of legal reasoning used by Western jurists to settle conflict of laws.Conflict of laws occurs when two or more laws could apply to a situation.

In this case, there are two laws which are now in opposition to each other.

There is the Rome Treaty setting up the International Criminal Court, which obligates state parties to cooperate with the court. There is Constitutive Act of the AU, which obligates all AU members to comply with its decisions and policies.

Kenya is a member of both the ICC and the AU, and normally there is no conflict. A conflict has arisen because the ICC, which has indicted President al-Bashir on war crimes, crimes against humanity and genocide, has issued a warrant of arrest against him and obligates members of the ICC to arrest him.

The AU has appealed to the Security Council to defer the ICC proceedings against President al-Bashir for one year. The Union argues that arresting him would be counter-productive and would not advance peace in Darfur.

The Security Council has ignored the request. Consequently, the AU has passed a resolution obligating all its members to ignore the warrant of arrest.

Is the AU contravening international law? No, says the Union, it has adopted another law. If anything, it is a conflict of laws.And it has been resolved using the rules.

The rules have been developed to help decide which lawmaking body has the strongest interest in resolving a matter, and therefore which law applies. Leave aside the morality of inviting President al-Bashir to witness the 27 August promulgation of Kenya's new Constitution, notable for its protection of fundamental rights and human rights.

Kenya acted within international law using the rules of conflict of laws.When two laws are in opposition to each other, it becomes necessary to decide which law is to be obeyed.

Kenya chose the AU law, rightly so it might say. Darfur is an African problem. Sudan is Kenya's neighbour. As the AU said in its press release of August 29, Kenya has "an abiding interest in ensuring peace and stability in Sudan."

Peace, justice and reconciliation in Sudan can only be achieved through continuous engagement with the elected government of that country, the AU said.

Neighbouring countries do this as a matter of survival as they bear the brunt of instability or insecurity in neighbouring states, it went on to say. "Kenya as a member of IGAD and a guarantor to the peace process in Sudan, arising from the implementation of the Comprehensive Peace Agreement and the impending referendum in South Sudan, has a duty and obligation to continuously engage with President al-Bashir."

The AU argues that engagement with the elected leaders of Sudan is vitally and strategically essential and unavoidable for the countries of the region as well as the entire continent.

Because of their proximity to the problem, they are better able to understand and take into account the local realities and dynamics. The situation in Darfur is complex, says the AU.

It requires a fine balance between peace and justice and the AU "shall oppose any attempt to coerce African countries to undermine the common African position." And that is the new international law, for you, made in Africa.