Walter Barasa’s bid to stop transfer to The Hague suffers jolt

Lawyer Kibe Muigai (left) and journalist Walter Barasa leave Milimani Law Courts in Nairobi, yesterday. [PHOTO: FIDELIS KABUNYI/STANDARD]

By WILFRED AYAGA

Journalist Walter Barasa’s bid to stop his transfer to The Hague to face criminal charges has suffered a severe jolt after the High Court threw out a petition he had filed challenging the constitutionality of the extradition proceedings against him.

The High Court yesterday dismissed all the grounds that Barasa’s lawyers had put forward seeking to save him from a possible ICC date on charges of interfering with witnesses in the ongoing cases against Deputy President William Ruto and Journalist Joshua arap Sang.

The court upheld that the International Criminal Act (ICA) under which the ICC has issued the arrest warrant against Barasa was consistent with the Kenyan Constitution and the journalist was therefore subject to its jurisdiction.

The court further upheld that lack of regulations in Kenyan law on the procedure that should have been followed in seeking the arrest warrant against Barasa did not invalidate the proceedings against him.

Justice Richard Mwongo said the Criminal Procedure Code (CPC) under Kenyan law mitigated against any such legislative lacuna.

“The CPC has provisions for a procedure for the issuance of a warrant, although the procedure involves a magistrate. I see nothing to prevent a High Court judge acting in accordance with the ICA playing the role of the magistrate under the CPC,” the court said.

The arrest warrant against Barasa was first tabled at the Kibera magistrate’s court before the matter ended up at the High Court.

14 days

The criminal proceedings against Barasa will, however, not commence immediately as the court granted him 14 days within which to appeal the judgement.

His lawyer Kibe Mungai rose to inform the court that Barasa’s rights would be violated if the hearing of the application were to commence immediately. He further said that his client was prepared to challenge the constitutionality of the proceedings against him at the Supreme Court. “Unless and until the Supreme Court has examined the constitutionality of section 4 of the ICA, the petitioner would be prejudiced by the proceedings against him,” Kibe told the court.

Barasa claims there are special circumstances in his case, including disagreements he had with the ICC prosecutorial officers prior to the issuance of the arrest warrant.

The court is yet to hear another application in which the journalist is challenging a ruling seeking to hear the extradition proceedings without the participation of his lawyers. A date for the hearing of the criminal application against Barasa will be agreed on by lawyers for all parties in the case.