, NAIROBI, Kenya, Jan 14 – The much awaited ruling on the arrest and extradition of activist Walter Barasa has been pushed to January 31 pending an ex-parte hearing of an application by Interior Cabinet Secretary Joseph ole Lenku.
In the hearing scheduled for Monday next week before High Court judge Richard Mwongo, the AG will present his arguments on the warrant issued by the International Criminal Court (ICC).
“Accordingly and in light of the foregoing, I direct as follows; that the aforesaid criminal application No 488 of 2013, filed by the Cabinet Secretary concerning the notice and request for arrest of Barasa shall be formally heard before me ex-parte on 20th January, 2014 or on such a date as shall be agreed with counsel for the 3rd respondent/applicant when I shall hear the said Counsel pursuant to Section 30 of the International Crimes Act 2008,” Justice Mwongo directed.
While welcoming the ruling, Barasa through his lawyer Kibe Mungai however expressed reservations on what he termed as the “one-sided nature of the hearing” stating that his client needed to express his views.
“Barasa has indicated to the court that he may be filing an application either before the High Court or Court of Appeal to challenge the directions for any proceedings to be carried out in his absence,” the lawyer stated.
Mungai argued that Kenyan courts have the capacity to try Barasa and stated that the Kenyan cases in The Hague are unconstitutional since the crimes were committed when Kenya was not a member of the Rome Statute.
“In the second petition, he is basically challenging the issue concerning the validity of an ICC warrant based on the fact that according to Barasa, the Rome Statute did not apply in Kenya in the year 2007/2008 when the offences were allegedly committed by his Excellency the President, his deputy and Joshua arap Sang,” he stated.
Barasa is accused of seeking to influence three prosecution witnesses to withdraw from the case facing Deputy President William Ruto and Sang.
He had told the court that it was not proper for the government to commence proceedings under the International Crimes Act before notifying and furnishing him with the information and evidence upon which the ICC issued his arrest warrant.
In an application filed by his lawyer, he argued that the procedure set out in the Act, 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 sections of the law 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.
In the meantime, Justice Mwongo further directed that Barasa’s petition challenging Kenya’s continued cooperation with the ICC be brought before Justice Isaac Lenaola to determine on whether the Chief Justice should form a five judge bench to determine the matter.