Barasa in court to stop his trial arrest warrant

Wanted journalist Walter Barasa has filed an urgent application to stop his arrest and handing over to the International Criminal Court.

Mr Barasa wants the court to stop the Interior Ministry Cabinet Secretary Joseph Ole Lenku’s request for his arrest presented to the Chief Justice on Monday, arguing that the move will expose him to grave injustice and oppression.

He is also seeking orders compelling Inspector General David Kimaiyo to provide him with necessary security to protect him from arrest by the investigators or ICC agents in Kenya. The petition was filed on his behalf by lawyer Kibe Mungai who argued that Mr Barasa would not face a fair trial if handed over to the ICC as requested.

“In the circumstances of this case, the Cabinet Secretary and the Attorney General have unlawfully failed to consider that under International Criminal Act, they were obliged to refuse the ICC’s request for the exceptional circumstances that would make it oppressive to surrender the petitioner to the ICC,” said Mungai.

Mr Kibe submitted that the decision of the minister to forward to the CJ the request for arrest was a violation of the Constitution by infringing on Mr Barasa’s rights to the rule of law and good governance.

In any event, Mr Kibe argued, Mr Barasa cannot be tried at the ICC or anywhere outside the country for offences which are punishable by the local courts.

“The decision and action to invoke Section 29 of the ICC Act in respect of the alleged committal by Mr Barasa of offences against the administration of justice that can be tried in Kenya has deprived and stripped him of the right to protection of law and fair hearing,” said Mungai.

He added that the minister and the AG have contravened the law in presenting the ICC request for Mr Barasa’s arrest and surrender even before they have furnished him with a copy of the warrant for his arrest and the supporting documents released by the ICC.

REFUSED OFFER

The application was supported by an affidavit by Mr Barasa who swore that the ICC wanted him for refusing to cooperate with them in implicating Deputy President William Ruto and journalist Joshua Arap Sang in the crimes against humanity charges facing them at the Hague.

According to Mr Barasa, he met an ICC investigator known as Paul Irani at Topelli Restaurant near Nairobi Hospital in Nairobi on September 15 who informed him that the ICC had on August 2 issued a warrant for his arrest for various offences against administration of justice.

“However, Mr Irani informed me that if I agreed to co-operate with the ICC by implicating through testimony Mr Ruto in respect of the crimes against humanity charges he is currently facing before the ICC, the said Warrant of Arrest would be withdrawn and I would serve as an ICC witness with due privileges and protection,” said Barasa.

He swore that he refused the offer after which the investigator accompanied by a Caucasian colleague threatened to arrest him but were dissuaded to do so because of the possibility that would cause an unusual spectacle in a public place.

He added that it was only after he refused that ICC prosecutor Fatou Bensouda issued the warrants on September 30.

He reiterated that the warrants were unconstitutional and that the government has no mandate of arresting or handing him over to the ICC.

“There is no absolute duty upon the government of Kenya to arrest and surrender me to the ICC as the request of the ICC must be considered and determined in accordance with the Constitution of Kenya and the International Criminal Act, 2008,” swore Barasa.

He added that between October 2 and 4, one of his lawyers Mr Nick Kaufman and the Office of The Prosecution (OTP) exchanged correspondence in respect of his plea for disclosure of information and documents on the basis of which the request for his arrest was based, but none was provided.

He said that his lawyer again wrote to the OTP but by the time the minister presented the request to the CJ on Monday, the ICC had not responded to the grievances he raised.

Mr Barasa also wants the Director of Public Prosecution enjoined in the suit to help determine if it is just to arrest and extradite him to The Hague.

He further stated that the ICC is seeking his arrest through a scheme to coerce and intimidate him to bear false testimony against Mr Ruto and to cover-up for the prosecution’s misconduct on the part of its investigators.

“In view of the foregoing, I cannot face a fair trial before the ICC and it would be unjust and oppressive to surrender me to the ICC or for Kenya to give the ICC the assistance it has requested,” swore Barasa.

He added that since the National Assembly and the Senate have passed resolutions to withdraw Kenya’s membership of the ICC Treaty, it was unjust for the minister to invoke Section 29 of the ICC Act when there is a high likelihood that the ICC Treaty will be repealed.