NAIROBI (Reuters) - A Kenyan appeal court refused on Tuesday to set aside a ruling ordering the government to arrest Sudan’s president if he visits, a decision likely to worsen relations between Nairobi and Khartoum.
Kenya’s government has scrambled to contain the fallout from the High Court’s ruling earlier this month, which said the state must arrest Omar al-Bashir on a warrant issued by the International Criminal Court (ICC) if he sets foot in Kenya.
Nairobi is keen to keep its friends in the region at a time when its troops are fighting in neighbouring Somalia, and also has its own tricky issues with the ICC, which is deciding whether to try Kenyans over violence after a 2007 election.
The Kenyan foreign minister has called the High Court’s order an error in judgment, visited the Sudanese leader in Khartoum and vowed to appeal the ruling.
The government sought to have the order to arrest Bashir shelved pending its appeal, but Tuesday’s decision means the High Court order remains in place until the appeal itself is heard.
“We are not convinced the reasons given by the deputy solicitor general are sufficient to grant a stay. The application for interim stay is refused,” Justice Emmanuel Okubasu told reporters.
Bashir gave Kenya a two week ultimatum to take steps to overturn the ruling and threatened punitive measures if Nairobi failed to comply. That deadline expired late last week.
Kenya’s High Court ruling came more than a year after Kenya failed to arrest Bashir during a visit, sparking criticism by the ICC and the West.
Although Nairobi has repeatedly said it would cooperate fully with the ICC, the High Court ruling took the government by surprise at a time it awaits a decision by The Hague-based tribunal on whether it will try six high-profile Kenyans suspected of masterminding violence after a 2007 election.
The government’s aggressive move against the court decision may be an indication of how it would react should its own ICC suspects, two of whom are presidential contenders, be issued with arrest warrants by The Hague-based court.
The showdown between the government and courts is also seen as a test of whether the judiciary will be able to maintain its independence and shake off decades of political interference.
A Kenyan government spokesman declined to comment and said he was waiting for an explanation of the ruling from the Attorney General’s office. The justice minister, who was against the government’s appeal, was not immediately available for comment.
Kenya, which is hoping to secure the backing of regional neighbours after it sent troops into Somalia to pursue Islamist rebels, has tried to avoid an escalation in tension with Khartoum, with which it shares important trade ties.
Bashir had threatened trade cuts, stopping flights to Kenya from going over Sudanese airspace - a route generally used for Europe-bound flights - as well as the expulsion of Kenyan nationals from Sudan.
Kenya has come under persistent pressure at home and abroad to arrest Bashir. As an ICC member state, Kenya is obliged by treaty to cooperate with the court and its arrest warrants. But the African Union has said its member states will respect immunity for Bashir.
The dispute has also put strains on Kenya’s ruling coalition, but has not boiled over because former foes President Mwai Kibaki and Prime Minister Raila Odinga have remained silent on the issue.