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Court of AppealDismissedCivil Application No. NAI. 275 of 2011 (UR. 179/2011)· [2012] KECA 20 (KLR)

Attorney General & another v Kenyan Section of the International Commission of Jurists [2012] KECA 20 (KLR)

Court of Appeal of Kenya
17 February 2012
EOE.O. O'KubasuEGE.M. GithinjiJOJ.W. Onyango Otieno
1,467 words in judgment
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The bottom line

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Kenya's Court of Appeal cleared the way for government lawyers to challenge the Al Bashir arrest warrant ruling, holding such proceedings are neither criminal nor civil.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a preliminary objection raised by the respondent, the Kenyan Section of the International Commission of Jurists, against a Notice of Motion dated 6th December 2011 in which the Attorney General and the Minister of State for Provincial Administration and Internal Security sought stay of execution and stay of proceedings pending an intended appeal against a ruling of Ombija, J. of the High Court delivered on 28th November 2011. That ruling concerned a provisional warrant of arrest against President Omar Ahmed Hassan Al Bashir. The respondent objected that the application was incompetent because Rule 5(2)(b) of the Court of Appeal Rules does not apply in criminal proceedings, and that only the Director of Public Prosecutions could bring such proceedings after the constitutional changes to the offices of Attorney General and Director of Public Prosecutions. The court dismissed the objection. It held that the Attorney General was a proper party, having been named as a respondent by the applicant in the High Court and having responded to the summons, and being the principal legal adviser to the Government under Article 156(4) of the Constitution; the respondents were neither accused persons nor suspects. The court further held that the proceedings, concerning enforcement of an international warrant of arrest, were neither criminal nor civil, so the invocation of Rule 5(2)(b) was unobjectionable. The preliminary objection was dismissed, leaving the applicants' stay application to proceed. No costs order is recorded in the judgment.

Key legal issues

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01

Whether Rule 5(2)(b) of the Court of Appeal Rules applies to the proceedings giving rise to the intended appeal

Holding

The court held that the proceedings are neither criminal nor civil, so Rule 5(2)(b) could properly be invoked and the application was competent.

Reasoning

Counsel for the respondent argued that because the subject matter was a warrant of arrest, the proceedings were criminal and Rule 5(2)(b) had no application. The court rejected this, noting that the proceedings concerned enforcement of an ICC warrant of arrest against a sitting Head of State and that the respondents were neither accused persons nor suspects. Being neither criminal nor civil, the rule applied and the objection failed.

p. 4
02

Whether the Attorney General, rather than the Director of Public Prosecutions, was a proper party to the proceedings

Holding

The court held that the Attorney General was a proper party: it had been named as respondent by the High Court applicant and had responded, and it is the principal legal adviser to the Government under Article 156(4) of the Constitution.

Reasoning

The court found it incongruous that the applicants, who had themselves named the Attorney General as a respondent in the High Court and had responded to the summons, should now object to the Attorney General's participation. The respondents were neither accused persons nor suspects, and Article 156(4) makes the Attorney General the principal legal adviser to the Government and its representative in proceedings to which the national government is a party, other than criminal proceedings. Since the proceedings were not criminal, the objection failed.

p. 3

Legal principles established

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  • Where the High Court applicant itself named the Attorney General as a respondent and the Attorney General responded to the summons, the Attorney General cannot later object to its own participation; as principal legal adviser to the Government the Attorney General is a proper party to proceedings of this nature.
  • Proceedings for the enforcement of an ICC warrant of arrest are neither criminal nor civil, and accordingly an application under Rule 5(2)(b) of the Court of Appeal Rules may properly be brought in such proceedings.

Court orders

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  1. 1.The preliminary objection was dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 2(5)
  • Constitution of Kenya, 2010Article 2(6)
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 98
  • Constitution of Kenya, 2010Article 156(4)(a)(b)
  • Constitution of Kenya, 2010Article 258
  • International Crimes Actsections 29 and 32
  • Rome StatuteArticle 98
  • Vienna ConventionArticle 31
  • The Privileges and Immunities ActFirst Schedule
  • Court of Appeal RulesRules 5(2)(b) and 47
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Criminal Application No. 685 of 2010
Jurisdiction invoked
Rule 5(2)(b) and Rule 47 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General & another v Kenyan Section of the International Commission of Jurists [2012] KECA 20 (KLR)", Case Analysis (2012). Civil Application No. NAI. 275 of 2011 (UR. 179/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/20/eng@2012-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.