, NAIROBI, Kenya, Nov 11 – The hearing of the petition filed by activist Walter Barasa against his handover to the International Criminal Court (ICC) will now be heard on December 4.
High Court Principal Judge Richard Mwongo adjourned the hearing on Monday following an application by Barasa’s counsel Kibe Mungai.
Mungai pleaded for the adjournment on the grounds that Barasa lost his mother on November 4 and has been in the process of planning for her burial scheduled for Thursday.
The Attorney-General’s office did not challenge the adjournment and neither did the three interested parties but Kioko Kamula, representing the Director of Public Prosecutions, challenged the application for adjournment for the reason that they would like to “dispose of the matter as soon as possible.”
While Mwongo was not eager to push the hearing as far forward as December 4, he was forced to as Kamula will be in the Hague from November 18 to 29 and so will Wilfred Nderitu who will be representing the victims of the 2008 Post-Election Violence in the case against Deputy President William Ruto and Joshua arap Sang at the ICC.
Mwongo also extended the deadline for the filing of submissions in the case giving interested parties Nderitu and Okiya Omtatah until Friday to submit theirs and Mungai until November 22 to make his.
The DPP’s office will then have three days to respond to Barasa’s submissions.
In its replying affidavit however, as sworn by Victor Mule, the DPP’s office contends that the Cabinet Secretary for Interior and National Co-ordination did not violate Barasa’s constitutional rights by handing over the ICC warrant of arrest for Barasa to the courts for enforcement.
“Under section 29 of the ICA (International Crimes Act) the Minister is only supposed to be satisfied that the request is supported by the information and documents required by Article 91 of the Rome Statute before notifying a Judge of the High Court that a request has been made and request the Judge to issue a warrant for arrest of the person whose arrest is sought,” the replying affidavit reads.
The DPP also contends that the ICC Rules of Evidence and Procedure will guard against any prejudice Barasa alleges he’ll be subjected to should he be tried at the Hague-based court.
The replying affidavit goes on to state that the affidavits filed by one Samuel Kimeli Kosgei and Simon Kipkolum Rotich, former prosecution witnesses in the case against Ruto and Sang, in support of Barasa have no bearing on the matter presently before Mwongo.
“As is evident from the supplementary affidavits, the deponents have numerous complaints against the Office of the Prosecutor (OTP) of the ICC which firstly have no bearing or relevance to the proceedings herein and secondly cannot be addressed by the High Court in the present proceedings,” the office of the DPP contends.
It also states that it is under no obligation at the present moment to supply Barasa with the documents supplied by OTP in support of Barasa’s arrest and surrender to the Hague-based court.
“Once proceedings are commenced against the petitioner in relation to the request from the ICC…The petitioner shall at that time be entitled to be furnished with the request and the supporting documents.”