Private practice lawyer Bright Theu on Sunday argued Malawi should arrest Sudanese president Omar al-Bashir if he sets foot in the country.
The International Criminal Court (ICC) issued an arrest warrant for al-Bashir in March 2009 for alleged crimes against humanity and war crimes. The ICC also issued a further arrest warrant with three charges of genocide in Darfur in 2010.
The Sudanese leader has meanwhile been a bone of contention for the Malawi Government that is caught up in a controversy with the African Union (AU), which is responsible for inviting continental leaders for its summits. Malawi is hosting an AU summit this July. AU supports al-Bashirâ€™s attendance of continental meetings while Malawi, if it hosts al-Bashir, risks renewed economic sanctions by its partners, notably the US, UK and other European countries, that froze aid to Lilongwe on account of al-Bashir.
Theu, who is also Malawi Law Society (MLS) secretary, said the country has an obligation to arrest al-Bashir under the Rome Statutes of the ICC which Malawi ratified on September 19 2002.
Said Theu: â€œWe are part of an international law which we ratified. It would be uncivilised to default against an obligation under this law. We cannot come back and question the mandate of ICC by whatever means to default on our obligation.â€
Theu, who said MLS has not discussed the issue, was reacting to an article published in Nation on Sunday which quoted Sudanese Foreign Ministry spokesperson Obeid Morawah, arguing Malawi does not have the right to dictate who comes to the AU summit.
Said Morawah: â€œSince Sudan is a member of the AU, it has a right to attend the summit. The hosting country does not have the right to say who comes. This is according to the AU.â€
But Theu said the AUâ€™s policy not to arrest Heads of State has taken its membership on a coalition course with the international law. He said given a choice between the Roman Statutes and the AU, Malawi should respect the international law.
He, however, said that MLS has not yet discussed the matter and until it does, there is no mandate. But Theu said any institution can take the Ministry of Home Affairs to court to get an execution of the ICC warrant of arrest on al-Bashir.
President Joyce Banda, who is trying to tread carefully on the issue with the interest of the economy and the country in mind, on Friday told a news conference in Lilongwe she has written to AU to decide on al-Bashirâ€™s position. Banda expressed concern that his attendance would have huge implications on the countryâ€™s economy.
In clarifying on the matter on Sunday, the President said Malawi is not against Sudanâ€™s participation, but that it can send a delegation, not al-Bashir coming in person.
Banda said she has also consulted other African leaders in the region who have advised that Malawi should stay clear of al-Bashir.
Last year, Britain expressed disappointment that Malawi hosted al-Bashir at the Comesa conference in defiance of the ICC. Amnesty International also pressed Malawi to arrest al Bashir.
United Kingdomâ€™s Minister for Africa Henry Bellingham said the British government expected Malawi to stand by obligations under the Roman Statutes and as a United Nations member State.
He said all countries should cooperate with ICC investigations in accordance with UN Security Council Resolutions and legal obligations of the States.