Is there such a concept as absolute independence?

The Republic of Sudan and Kenya are embroiled in a bitter diplomatic row resulting from a recent high court ruling that ordered the Kenyan Government to arrest President Field Marshal Omar al-Bashir should he dare set foot in Nairobi. In retaliation, a furious Bashir gave Kenya an ultimatum of two weeks to either overturn the ruling or Khartoum imposes a raft of punitive measures against Kenya. The lined up sanctions Khartoum intends to unleash on Kenya, if passed, would undoubtedly cause serious pain to the Kenyan economy and possibly spur a new crisis within the region. The proposed menu of sanctions includes closing Sudan’s airspace to flights flying in and out of Kenya and yet the majority of flights coming from or destined to Europe overfly Sudan. Khartoum also promised to expel more than 1000 Kenyans living in Sudan and ban exports to this country should it fail to overturn the ruling in the next 2 weeks. Kenya exports mainly Tea and Coffee, with Tea alone fetching close to $200million annually. Sudan has also threatened to expel all Kenyan troops serving in the troubled region of Darfur on top of severing diplomatic ties. As this diplomatic explosion goes on, the debate especially within the Kenyan media is inclined more towards ridiculing the stand taken by Khartoum and standing by the independence of their judicial system. Indeed though this decision has been hailed as representing a break away from the past when judges would have never dared make pronouncements that rubbed the executive the wrong way, it has equally raised controversies in areas of inter-state relations and whether the executive needs veto power of such issues. We all know that international diplomacy binds nations to certain principles or agreements that they must stick to even if some may not necessarily make sense. Often time, the overriding goal of inter-State relations largely hinges on promotion or safeguarding what constitutes National interests. For any sane government, these interests are not interests that serve one arm of Government but are rather for the common good of any sovereign state. Therefore, much as the judiciary has to act independently to safeguard the rule of law, it must lso appreciate that certain binding common interests have to be protected. In circumstances where such interests are tampered with, then the survival of the judiciary or any other arm of the state is also threatened. This, therefore, calls for a common understanding or a collective approach to some sensitive issues that constitute strategic interests of any State, even if these interests were not necessarily in the best books of law. This is why we have never seen a US or UK court indicting one of their leaders for unleashing a wave of terror in Iraq or Afghanistan in the name of the war on terror. Therefore if the African Union has made a pronouncement that binds the entire continent (like the position taken on the case between Bashiir and ICC) and of which your government has appended to, why then would another arm see no value in respecting such a position and instead choose to set its own government on a head collision with another? Again, talking of interests and going by the Kenyan example, if Bashir was to cut off the tea imports from Kenya that bring into Kenyan coffers $200 million a year, who will suffer most? Certainly not the General in Khartoum. Why would anyone be so insensitive to the plight of the ordinary farmer likely to lose a portion of his/her household income by choosing such an insensitive decision? If hell broke loose and Bashir said no more Kenyan bound or take off planes should fly over its airspace. What would happen to Kenya’s aviation industry that has been its anchor for the status it enjoys today as a hub for the region? This leads me to another question, does the independence of an institution blind it from weighing the consequences of some decisions especially in circumstances when such decisions are sensitive and likely jeaopradise national interests? In other words what is the essence of issuing another arrest order for a man who is already indicted, knowingly well that such a move would ignite undue tensions? Yes, being independent is important but this independence should not blindfold us from making proper judgments on some issues that concern the common good of an entire nation. akaeus@yahoo.com on twitter @aasiimwe

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Is there such a concept as absolute independence?