Attorney General & 2 others v Kenya Section of International Commission of Jurists (Civil Appeal 105 of 2012 & Criminal Appeal 274 of 2011 (Consolidated)) [2018] KECA 790 (KLR)

Sections 28, 29, 32 and 33 of the International Crimes Act and Articles 59, 89 and 92 of the Rome Statute must be read together. Article 59 places the duty to arrest on a State Party which has received a request from the ICC. The provisional warrant contemplated by section 32 presupposes an ICC request transmitted through the Minister or Attorney-General. No such request was shown to have been made to the Government of Kenya as the channel for the provisional arrest; a citizen cannot substitute the ICC as the source of the request.

Section 33(1) requires the applicant to report the issuance of the warrant to the Minister, showing the applicant and the Minister are different persons. The drafters allowed any entity or person, including the ODPP, to apply to the High Court for a provisional warrant, precisely to cater for the situation where the Minister may ignore or neglect to act on an ICC request. The High Court Judge therefore did not err in finding the respondent had standing on public-interest grounds, although the warrant itself failed for want of jurisdiction and urgency.

Section 32 of the International Crimes Act and Article 92 of the Rome Statute permit a provisional warrant only in urgent cases where the person is in Kenya or may come to Kenya. The application was presented on 18th November 2010 after the Summit had been moved; the Judge reserved ruling and delivered it on 28th November 2011, nearly a year later. By then the urgency which was the foundation of the application had dissipated and the warrant was stale. However, the appeal as a whole was not moot because the Court's delineation of Kenya's obligations has practical effect.

Article 27 of the Rome Statute renders official capacity irrelevant, and States Parties consent to waive immunity by ratification. Article 98(1) ordinarily protects third-State Head-of-State immunity unless waived, and the Court agreed with the ICC Pre-Trial Chamber and the South African Supreme Court of Appeal that sitting heads of State normally enjoy immunity. However, acts amounting to international crimes are not sovereign acts; jus cogens norms override immunity, and the Security Council referral under Chapter VII, Article 25 and Article 103 of the UN Charter invoked a special regime that removed Al Bashir's immunity in respect of the Darfur situation.

By ratifying the Rome Statute in 2005 and enacting the International Crimes Act in 2008, Kenya bound itself under section 3 of the Act to comply with and implement the Rome Statute, whose provisions have the force of law in Kenya. Kenya received the warrants and requests for cooperation yet invited President Al Bashir to the Constitution promulgation on 27th August 2010 and failed to arrest him. The Court also found the appeal was not moot since the warrants remain outstanding and can still be executed unless rescinded by the ICC.