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  • Statement on Kenya's New Constitution 23/09/2010


    1.  On 4 August 2010, the people of Kenya went to the polls to vote for a proposed new constitution. Kenyans came out in large numbers to exercise their democratic right to chart their country’s future. The exercise saw the proposed new constitution accepted by 67% out of the voter turnout of 77%. In accepting the new constitution, Kenyans ushered in a second Republic that offers a long-standing stability for the present and future generations of Kenyans. Kenyans are proud to be associated with the new Constitution, which is a product of extensive nationwide consultations with citizens at all levels. The civic education undertaken prior to the vote ensured that the outcome would be fully understood and owned by Kenyans. The new constitution is home grown and replaces the one Kenya adopted at independence.

    2.  Kenya’s foreign policy orientation includes good neighbourliness and peaceful co-existence, and to this end Kenya is aware that conflict in the region is an impediment to achieving this goal. Further, Kenya strives to promote peace in the Region being aware that it would in turn lead to prosperity and economic development both at the national and regional level. Kenya’s primary duty to itself and to its neighbours is peace and security at all costs because without these, nothing else would be achievable. Any policy of exclusionism would negate this duty.

    3.  Following the outcome of the Referendum, on 27 August 2010 H.E the President of the Republic of Kenya, Hon. Mwai Kibaki appended his signature on the constitution thereby confirming it as the new basic law of the land. The promulgation ceremony was a historic event for Kenya and was lauded both locally and internationally, with the International Community noting the positive example Kenya was in the region. To join Kenyans in marking the auspicious occasion, the Government invited all heads of states and governments of the neighbouring countries and countries in the region, including H.E.  Omar Al-Bashir, President of the Republic of the Sudan and Hon. Salva Kiir, President of the Government of Southern Sudan and the Vice President of the Republic of Sudan.

    4.  In extending the invitation to President Omar Al-Bashir and Vice President Salva Kiir, Kenya was desirous of taking advantage of the new momentum for peace in the sub-region to push forward the implementation of the Comprehensive Peace Agreement (CPA), which climaxes with the Referendum in January 2011. It is therefore necessary that Kenya maintain frequent interaction and engagement with both parties of the CPA. It should be noted that the CPA was signed in Kenya, and that Kenya is a guarantor thereof.

    5.  While in Kenya, President Omar Al-Bashir met with President Mwai Kibaki to review the progress on the implementation of the remaining agreed activities under the Comprehensive Peace Agreement. The Government of Kenya is happy to note the positive progress made, pursuant to the said discussions, which include the agreements reached in Khartoum on 29 August 2010 between the two parties on critical issues including: Holding the South Sudan Referendum on the date stipulated in the CPA, i.e. on 9 January 2011; Adoption of a number of measures to remove all the impediments facing the Referendum Commission; Formation of a joint political committee for the speedy demarcation of the North-South border before the Referendum; Call for regional partners and the international community to live up to their commitments and pledges to support the implementation of the remaining provisions of the CPA. Without engaging President Al-Bashir, as President Kibaki did, the progress made may not have been achieved.

    6.  The Government of Kenya therefore regrets the attempt of the pre-trial chamber of the International Criminal Court (ICC) to refer the matter of the presence of President Omar Al-Bashir in Kenya to the UN Security Council. The Government of Kenya also regrets Statements issued by some UN Security Council members regarding the presence of President Omar Al-Bashir in Kenya on 27 August 2010, and also the European Parliament resolution of 9 September 2010 titled  “Kenya: failure to arrest President Omar al-Bashir”.

    7.  Kenya supports multilateralism and fully subscribes to the charter of the United Nations and the African Union, seeking to work with like-minded states in the promotion of an international political and economic order. Article 23 (2) of the Constitutive Act of the African Union obligates all AU member states “to comply with the decisions and policies of the Union”. In this regard, Kenya is bound by the provision and therefore unable to violate or disregard its obligations thereto.

    8.  The African Union Commission, in support of President Al-Bashir’s presence in Kenya released a statement where it expressed grave concern at the statements attributed to some members of the UN Security Council as well as the decisions of the ICC Pre Trial Chamber informing the UN Security Council and the Assembly of the States Parties to the Rome Statute about President Omar Al-Bashir’s presence in Kenya on 27 August 2010. In the same statement, the African Union Commission drew attention to decisions adopted by the 13th Ordinary Session of the Assembly of Heads of State and Government wherein the Assembly “Decide[d] that in view of the fact that the request by the African Union has never been acted upon (by UN Security Council), the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar Al-Bashir of the Sudan”. This same decision was reiterated by the 15th Ordinary session of the Assembly in July 2010 in Kampala.

    9.  Attention is drawn to the Accra Declaration of the 6th Summit of ACP Heads of State and Government held in October 2008 in Accra, Ghana. The declaration “Note[d] the request for the indictment of General Omar Hassan Ahmed Al-Bashir, President of Sudan, on charges of genocide, crimes against humanity and war crimes in Darfur by the International Criminal Court (ICC), and reaffirm[ed] the call made by the African Union (AU) for the suspension of the ICC demarche to allow for political and diplomatic efforts to address the situation in Darfur”.

    10.  The ACP Committee of Ambassadors sitting in Brussels in a declaration issued following its 816th meeting held on 12 March 2009 expressed serious concern at the decision of the Pre Trial Chamber of the ICC to issue an arrest warrant against the President of the Republic of the Sudan as well as the grave consequences of that decision. It “reiterated its support for the Declaration of the 6th Summit of ACP Heads of States and Government held in Accra from 2 to 3 October 2008, and those of the AU Assemblies, particularly requesting the implementation of the provisions of Article 16 of the ICC Statutes which allows for the postponement of the said Decision in order to allow the political and diplomatic efforts to find a lasting solution to the Darfur”.

    11.  It is in the context of the foregoing and particularly in pursuit of regional peace, stability and, of essence, economic development that President Omar al-Bashir of the Sudan was invited to Kenya on the latter’s historic day.

    12.  Kenya reiterates its commitment to its international obligations including that to the International Criminal Court.

    14 SEPTEMBER 2010