Countdown to extradition of Barasa to ICC starts


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Chief Justice Willy Mutunga to appoint a judge to preside Walter Barasa extradition: The countdown to possible extradition of Walter Barasa to The Hague, for allegedly dissuading witnesses from testifying against Deputy President William Ruto, formally starts on Monday.

“We can finally confirm that that the original copies of the warrant of arrest from the ICC are here with us. They have formally been received by the office of the Interior Cabinet Secretary,” Attorney General, Prof Githu Muigai, told The Standard On Sunday.

“The necessary transitory instruments have now been prepared and are ready for submission before the Judiciary on Monday,” he said.

Procedurally, after handing over the submissions and all the relevant attached paperwork, Chief Justice Dr Willy Mutunga will appoint a judge to preside over the matter.

Remain united

Ideally, Barasa’s case will be the first in the country’s history to come up before the International Crimes Division (ICD) of the High Court of Kenya, which was officially launched in April this year. The ICD was set up in accordance with the International Crimes Act for Kenya, Act No 16 of 2008. The Act domesticated the Rome Statute, which defines and incorporates into Kenyan law, the crimes of genocide, war crimes and crimes against humanity.

Although the ICC Prosecutor Fatou Bensouda issued a warrant of arrest for 41-year-old Barasa, a former journalist, Government has seemed to drag its feet on the same.

Even before Bensouda went public on the case, Barasa held a press conference a week earlier defending himself against claims of bribing prosecution witnesses.

In fact the Government initially denied receiving such an arrest warrant from the ICC. However, a couple of days after Bensouda went public about the matter, the Attorney General explained that Barasa would have to first undergo clear procedures as set out under international law.

“The procedure for enforcing any warrant issued by the ICC against any individual in Kenya is subject to the very clear procedure set out under the International Crimes Act 2010. These procedures require the minister in charge of the interior upon receipt of the formal warrant of arrest to present the said warrant to the Judiciary for enforcement,” Prof Muigai explained.

But Bensouda wants Barasa arrested and airlifted immediately: “We expect the Kenyan Government to arrest and surrender Barasa to ICC without delay. I believe that sending this warrant to Kenya is an opportunity to demonstrate it is co-operation, which they say they have given to the ICC. It is an opportune moment for them to arrest Barasa and surrender him to the court,” she said.

Either because ICC officials had not familiarised themselves with the relevant Kenyan laws, The Standard On Sunday has since established that the arrest warrant papers had been handed to the Kenyan Embassy officials in the Netherlands, instead of directing the same to the Interior Cabinet Secretary, as per constitutional dictates. This may have caused delay of receipt of the said papers fromICC.

“I want to confirm, yet again, that the Attorney General and Director of Public Prosecution will fully co-operate with the local courts and ICC in accordance with our Constitution to ensure the process is expedited accordingly,” assured Githu.

Owing to the long procedural process, it is not clear when Barasa will next board an aeroplane bound for The Hague. All this is at the discretion of a local judge, who has to study ICC application documents and give appropriate directions. One such direction might be an order that Barasa personally appear before his or her court for hearing and determination.

According to Section 30, subsections (1) and (2) of the International Crimes Act 2008, upon receiving a warrant of arrest request “supported by the information and documents required by article 91 of the Rome Statute”, if the judge is satisfied on the basis of information presented to him, he shall act accordingly.

“The Judge shall give reasons for the issue or refusal to issue a warrant under subsection (1),” states the Act.

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