Journalist Walter Barasa seeks to quash International Criminal Court arrest order

Lawyer Kibe Mungai makes a point after a court session. He represented Walter Barasa. [PHOTO: EVANS HABIL/STANDARD]

KENYA: Activist-cum-journalist Walter Barasa has moved to the High Court to block his arrest and surrender to the International Criminal Court (ICC) over alleged witness bribery.

Barasa said it was not proper for the government to commence proceedings under International Crimes Acts before notifying and furnishing him with the information and evidence upon which the ICC issued his warrant of arrest.

In an application filed by lawyer Kibe Mungai, Barasa argues that the procedure set out in the Act, in respect of Arrest and Surrender of Persons to the ICC, was fundamentally flawed and invalid under Kenya’s Constitution.

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“On August 27, 2010, the Constitution was promulgated as the supreme law. Article 2(4) of the Constitution provides that any law, including customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid,” submitted Mungai.

Barasa wants the Interior Cabinet Secretary, the Attorney General, Director of Public Prosecutions and Inspector General of Police enjoined in the suit to ensure he is tried before a competent court in the country for offences against administration of justice alleged by the ICC against him.

Mungai submitted that the action by the Interior Cabinet Secretary to invoke a section of the Act in respect to alleged offences against administration of justice has deprived the petitioner of the right to protection of law and fair hearing embodied in Section 18 of the Act, which provides that the trial shall be in Kenya before any court of competent jurisdiction.

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Kibe argues that the Sixth Schedule of the Constitution provides that all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

Calls for co-operation

The counsel submits the ICC was seeking the arrest and surrender of Barasa in a scheme to coerce and intimidate him to bear false testimony against Deputy President William Ruto and to cover up for the prosecutorial misconduct on the part of its investigators, which will be achieved by labelling the petitioner a suspect and at worst convicting him on trumped up charges.

Barasa is also asking the court to block his arrest and surrender to the ICC in view of the existing exceptional circumstances that makes it unjust and oppressive to have him tried at the ICC.

“A declaration be issued that the respondents are prohibited from instituting and/or maintaining proceedings affecting the petitioner under Part IV ICA, 2008, unless and until the first respondent makes the regulations provided for under Sections 172 and 174 of the said Act,” submitted Mungai.

In his application, Barasa states that on September 15, he was informed by an investigator with the ICC known as Paul Irani that a warrant of arrest had been issued against him by the court which would, however, not be enforced if he agreed to co-operate with him and implicate Ruto in the crimes against humanity before the ICC.

“In default of his co-operation he was threatened with arrest and prosecution for various offences against the administration of justice that would make him liable for imprisonment of up to five years” said Barasa.

Fabricated evidence

However, Mungai submitted that Barasa declined to submit to the threats and intimidation and he subsequently held a press conference at which he narrated his encounter with the ICC investigator.

“The ICC has apparently preferred charges against the petitioner in the wake of the petitioner’s refusal to co-operate with ICC’s investigators to implicate the deputy president in crimes against humanity using false testimony and fabricated evidence, which themselves are offences under the Rome Statute and the ICA, 2008,” said Mungai.

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ICC The Hague Constitution William Ruto