How anti-ICC bill could tilt trials and order to arrest Journalist Walter Barasa

Some of the MPs accompanying Deputy President William Ruto at The Hague. [PHOTO: PIUS CHERUIYOT/STANDARD]

By ALEX NDEGWA

A draft Bill that seeks to end Kenya’s membership of the International Criminal Court is ready, says National Assembly Majority Leader Aden Duale.

Mr Duale said the Bill would be fast-tracked for introduction in Parliament “by the third week of this month.” “I expect the AG to forward it latest Friday. We will publish it and reduce the publication period from 14 to four days,” he told The Standard Sunday.

However, Attorney General Githu Muigai Sunday said he had not received the bill, but indicated it may have been sent to the Chief Parliamentary Draftsman.

It was clear Jubilee leaders are working overdrive as the 30-day period within which they had said the bill would be brought to the House to end Kenya’s membership of the ICC lapsed at the weekend.

During an emergency session on September 5, the MPs had also pressed the government to urgently undertake measures to immediately withdraw from the Rome Statute that established the ICC.

MPs from the opposition Coalition for Reform and Democracy walked out of the House in protest but the motion was passed in Jubilee-controlled National Assembly and Senate.

The International Crimes Act, which the bill seeks to repeal, is the law that would guide the Kenyan courts in processing the warrant of arrest issued by the ICC last week against journalist Walter Barasa, who is accused of interfering with prosecution witnesses in the case against Deputy President William Ruto.

Muigai declined to discuss the apparent dilemma should the Act be repealed before the proceedings against Barasa are completed.

“I will not speculate because that issue hasn’t arisen yet,” he told The Standard.

Formal warrant

Duale downplayed fears of conflict, saying law-making was a lengthy process and predicted the Barasa issue would have been settled by the time the Act is repealed.

“I expect the AG to fast-track the Barasa matter before the bill is passed and assented to law,” he added.

Muigai had earlier explained the procedure for enforcing any warrant issued by the ICC against an individual in Kenya is subject “to the very clear procedure set out under the International Crimes Act, 2010”.

“These procedures require the minister in charge of the Interior, upon receipt of the formal warrant of arrest, to present the said warrant to the Judiciary for enforcement,” he said.

The AG added, “During the judicial consideration of the legality of the warrant, the subject is entitled to make representations to the court. The final determination on the enforceability of the warrant is, therefore, a judicial one.”

On Sunday, the AG said the government received the ICC arrest warrant and accompanying documents last Friday.

“The government has admitted the documents and they will be processed within the week,” Muigai said, alluding to court proceedings to sanction the transfer of Barasa to The Hague.

This week, Africa’s onslaught against the ICC goes a notch higher as African leaders meet at an extraordinary session of the African Union in Addis Ababa, Ethiopia, on Saturday to press for the referral of the Kenyan cases against President Uhuru Kenyatta, Mr Ruto and radio journalist Joshua Sang.

Kenya is expected to step up efforts to lobby Africa nations to pull out of the ICC during the assembly, whose agenda includes “discussion on the theme, Africa’s relationship with the ICC”.

Also up for consideration is a progress report on the implementation of the decision by the AU assembly of May on “International Jurisdiction, Justice and ICC.”

This refers to a resolution backing Kenya’s request for a referral of the ICC cases citing a reformed Judiciary and threats to peace and security.

No choice

The assembly had expressed concern “at the threat that the indictment of Uhuru and Ruto, the President and Deputy-President, may pose to the on-going efforts in the promotion of peace, national healing and reconciliation, as well as the rule of law and stability, not only in Kenya, but also in the region.”

Over the weekend sections of the media reported that experts in international law insisted Kenya has no choice but to surrender Barasa.

On October 2, an ICC judge issued an arrest warrant against Barasa, who is accused of bribing and attempting to corruptly influence witnesses in the case against Ruto.

Following repeated allegations by ICC prosecutors that the Government is not co-operating with its investigations in the country, the Office of the Prosecutor called on the government to immediately arrest Barasa and hand him over.