Nobody could quite believe the evidence of their eyes. Was that really Sudan’s President Omar al-Bashir? Surely not. Not on this day, our day. And if it was, obviously he would be arrested.

But our eyes were not lying. It was him, ruining our day, and he was not arrested. He was courteously escorted out of his car and onto the dais.

And President Mwai Kibaki proceeded to rub salt into the wound by recognising him first of all the presidents gathered.

The consternation was palpable among the diplomats, politicians and civil society members present. Ambassadors and high commissioners decided to boycott the state luncheon.

Politicians talked of a citizens’ arrest. Civil society contemplated trying to get court orders for his arrest – but all the judges were at the ceremony.

Statements of protest went out instead. And Bunge la Mwananchi held an impromptu demonstration, urging his arrest – for which two of its members were promptly arrested. So much for the new constitution and for the promise that it would end impunity.

What really happened? Was an invitation just sent to him as a formality, with nobody really expecting him to attend?

Did he decide, given that he no longer gets out and about that much, to attend at the last minute? Reason says he would not have made that decision lightly without being guaranteed that he would be able to return home.

The post-the-fact explanations from head of the civil service Francis Muthaura, who had led the planning for the promulgation, and Minister of Foreign Affairs Moses Wetangula, implied that, whether or not he had taken everybody by surprise, that guarantee had, in fact, been given.

They were unapologetic. Kenya’s security interests in the region supersede both international and domestic law, they said in effect. Unbelievable.

Let us be clear on this. Nobody denies that might is right within the international system. But having said that, the global South, including Africa, is engaged in the international system and working towards equity – whether we are talking about seats on the UN Security Council or voting rights in the international financial institutions or whatever.

And, more importantly, we Africans – when all else has failed, domestically and regionally – ourselves call on the international system.

We have helped shape international law – Africa was fully diplomatically engaged in the negotiations of the Rome Statute, in terms of expert input and advocacy by civil society.

The majority of African states are signatories to the Rome Statute – and nobody arm-twisted them into becoming so. Three of the now five situations before the ICC (International Criminal Court) were state referred.

So let us not now act like we are all helpless victims of the international system, without any agency whatsoever. We are not.

Finally, let us be clear about one fundamental truth. Pandering to injustice will never bring us peace and security – for ourselves or for our neighbours in Sudan.

Our government should apologise to us. It should apologise to the Sudanese, particularly the Darfuris.

It should then make clear, as other African states have done, regardless of the AU decision, that the Sudanese president will be arrested if he shows up here again.

And it should prepare for what it will inevitably have to address post the referendum in Sudan. The South wants to secede. It will.

The North is unlikely to let it go. Let us get ready for what that means instead of pussyfooting around a man who should be facing the full force of the law.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission.
* This article was first published by the East African.
* Please send comments to [email protected] or comment online at Pambazuka News.