Justice George Odunga said he will make the decision after analysing submissions from both Barasa’s lawyer and the government which took close to one-and-a-half hours on Thursday.
Through his lawyer Kibe Mungai, Barasa argued that if he is extradited, his fundamental rights would be violated.
“Section 30 of the International Crimes Act reads that after receiving a request under Section 9, the judge may issue a warrant in the prescribed form. The judge shall also give reasons or refusal to issue a warrant so that your lordship, the petitioner’s goose is not yet cooked. He still has his day in court,” he said.
Barasa urged the court to stay his extradition proceedings and commence his trial in Kenya to enable him clear his name.
“If he must be tried by anything in accordance to the Laws of Kenya, that trial must be conducted in Kenya. My lord we are urging the court as you consider the issue to ensure that Mr Barasa is not subjected to a procedural absurdity in which nobody is pointing out clearly that this will be justified under this particular provision of the law,” he said.
He suggested that the matter before the court be referred to the Principal Judge or the Chief Justice to hear them.
Mungai stated that the action by Interior Secretary Joseph ole Lenku to hand over the case to the Judiciary is subject to be challenged in court and pointed out that to avoid a dilemma, his actions should be looked into it.
The ICC Victims Representative Wilfred Nderitu who also wanted to be enjoined to the case however objected and said that the letter by the minister was in order and proceedings should be undertaken according to the laws of Kenya.
“My submission is that there are proceedings – even though they are before the ICC in terms of the argument – that Kenya as a State Party is under an obligation to cooperate with the ICC and implement the work of the ICC. It matters not whether those proceedings were undertaken locally or not,” he stated.
Nderitu explained that in any event, the Rome Statute is part of Kenya’s law with constitutional significance and in the event that there is inconsistency, the ICC rules will prevail.
“Here we are not talking about any infringement of the right to a fair trial. There would be proceedings that would be undertaken and that is provided for under the International Crimes Act and under the Rome Statute which would determine whether or not the petitioner should be surrendered to the court and at that time, he will have his full rights to a fair proceeding,” he said.
The Kenyan Government has said it can only arrest and send him to The Hague once a determination is made by the court as required by law.
Inspector General of Police David Kimaiyo was instructed to accord him maximum security to ensure he is not ‘kidnapped’ and taken to The Hague.
ICC Prosecutor Fatou Bensouda has accused him of bribing or attempting to bribe witnesses testifying in the case against Deputy President William Ruto.
The Kenyan government has said it can only arrest and send him to The Hague once a determination is made by the court as required by law.