Barasa case to test Kenya co-operation with ICC

Kethi D Kilonzo

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The benefits of co-operation with the ICC are now manifesting.

The Pre-Trial Chamber of the ICC issued an arrest warrant against Walter Osapiri Barasa on suspicion of committing offences against the administration of justice including corruptly influencing or attempting to corruptly influence ICC witnesses. The ICC stated that it was necessary to arrest him to ensure his appearance at trial, so that he does not obstruct or endanger the investigation or the proceedings, and to prevent him from continuing with the commission of the crime.

This is the first case before the ICC where a suspect is charged with an offence against the administration of justice.

ICC sent a request for assistance to the Government of Kenya for the arrest and surrender of Walter Barasa. The Rome Statute and our law require that the minister in charge presents the request by ICC to the High Court for an arrest warrant to issue. This has been done. A constitutional challenge to the request by ICC has been filed by Walter Barasa’s advocates and awaits the ruling of the High court.

If the High Court issues a warrant of arrest, and Barasa is presented before it, the court can admit him to bail. He is not entitled to bail as of right.

Before admitting him to bail the High Court must liaise with the ICC for recommendations on the conditions for such bail.

Before issuing any warrants of arrest and detention, the High Court will satisfy itself that he is the person whose name appears in the warrant, the process for his arrest has been proper and that his right to remain silent amongst other rights have been respected. He has a right of appeal from the decision of the High Court.

The High Court cannot question whether the ICC has properly issued the arrest warrant. Its powers are limited to determining whether the warrant applies to Walter Barasa, whether he has been arrested using a proper process and whether his rights have been respected. If he is arrested and detained by the High Court, the Attorney General can refuse to surrender him to the ICC after giving reasons to the High Court. The AG can also postpone his surrender to the ICC.

These legal avenues that protect the rights of Barasa, and any other person subject of the ICC, would not be available if the country was not a party to the Rome Statute. There is a misconception that once the country repeals the International Crimes Act and pulls out of the Rome Statute Kenyans will not be subject to international criminal laws or the ICC. The Rome Statute was enacted to ensure that serious crimes of concern to the international community do not go unpunished and to ensure their effective prosecution. It created a permanent international criminal court (the ICC) and gave it jurisdiction over such crimes.

This jurisdiction is not exercised over states. It is exercised over individuals with criminal liability. There is no time limit to its jurisdiction. Once an investigation is opened and charges preferred they can only terminate with conviction and sentence, acquittal, or death of the individual. If Kenya pulls out of the ICC, this will not cripple the court from exercising its jurisdiction over the Kenyan cases or any other serious crimes committed in future by any individual. If there is non-co-operation by Kenya in any respect after the pullout, the ICC will seek the help of the UN Security Council.

For the time being, if Kenya fails to comply with the request for the arrest and surrender of Barasa for reasons other than those provided under the Rome Statute and our law, the ICC can make a finding to that effect and forward it to the UN General Assembly. At a time when lawyers holding high public office are openly encouraging the President not to appear we are keenly watching the reaction of the Judiciary and the Executive to the request by ICC.

The writer is an Advocate of the High Court of Kenya