Court to rule on Barasa’s warrant of arrest application Tuesday

By Isaiah Lucheli

NAIROBI, KENYA: Journalist Walter Barasa will know his fate on Tuesday  when the high court rules on his application seeking to stop his arrest and surrender to the International Criminal Court (ICC).

High court Principal Judge Richard Mwongo will Tuesday morning give his verdict on the petition following the conclusion of submissions by Barasa, the Attorney General (AG), The Director of Public Prosecution and Lawyer Wilfred Nderitu.

Barasa had told the court that it was not proper for the government to commence proceedings under International Crimes Acts (ICA) before notifying and furnishing him with the information and evidence upon which the ICC issued his arrest warrant. 

In an application filed by lawyer Kibe Mungai, Barasa had argued that the procedure set out in the ICA, in respect of Arrest and Surrender of Persons to the ICC was fundamentally flawed and invalid under the country’s constitution.

Mungai submitted that the action by the Interior Cabinet secretary to invoke section of the ICA in respect to alleged offenses against the administration of justice had deprived and stripped Barasa of the right to protection of law and fair hearing embodied in Section 18 of the ICA, which provides that the trial shall be in Kenya before any court of competent jurisdiction.

He added that the judges in the country had sworn to protect the constitution and argued that any legal provision or statute that was in contention with the constitution was null and void.

“If there is a clash between the Rome Statute and the Kenyan constitution it would be treason for a Kenyan Judge to disregard the constitution in favour of the statute,” submitted Mungai.

Mungai added that the ICC had clearly manifested that the accused did not have a right to public trial and the International court had already taken the stand that Barasa had committed crimes against the administration of justice.

“The attempt by the ICC investigators to kidnap Barasa and the use of a warrant of arrest to threaten and intimidate him into testifying against the deputy president, dis entitles the ICC from having the right of trying Barasa. This will be against his rights as enshrined in the constitution,” said Mungai.

On his part Lawyer Wilfred Nderitu who has been representing witnesses at The Hague in the case facing Deputy President argued that the application by Barasa to be furnished with the details leading to the release of the arrest warrant would jeopardize the on-going case.