ICC Suspect Won't be Extradited Soon – Lawyer

A lawyer who represents a Kenyan former journalist wanted by the International Criminal Court (ICC) on charges of interfering with its witnesses has told IWPR that his client will not be extradited to The Hague this year.

Following a March 19 ruling by a Kenyan High Court judge which opened the way for Walter Barasa’s arrest, his lawyer said there was still a long process ahead before he was sent to The Hague.

“Barasa will not leave Kenya this year,” Kibe Mungai said. “It will not happen.”

The ICC issued an arrest warrant for Barasa in August 2013 after prosecutors filed charges against him for bribing and attempting to bribe witnesses in the case against Kenya’s deputy president William Ruto. (See Lawyers Say Kenya Must Comply With ICC Arrest Warrant.)

Ruto went on trial alongside broadcaster Joshua Arap Sang in September. The warrant against Barasa was made public the following month, after a failed attempt to secure his arrest while he was abroad in an unspecified country.

Ruto and Sang are on trial at the ICC for their alleged role in electoral unrest that hit Kenya six years ago. More than 1,100 people were killed and 650,000 others were forced from their homes in violence that erupted following a disputed presidential election in December 2007.

Kenyan president Uhuru Kenyatta is also facing charges at the ICC, although his case has been postponed several times and is now scheduled for October.

In Kenya, interior minister Joseph Ole Lenku informed Chief Justice Willy Mutunga of the ICC arrest warrant on October 7. Lenku asked for a warrant for Barasa’s arrest to be issued locally under Kenya’s International Crimes Act of 2009.

Barasa’s lawyer, Mungai, then filed a petition at the High Court challenging Lenku’s application. He argued that the application for an arrest warrant was unlawful; that his client could not be handed over to the ICC to be tried for offences that fall under Kenya’s domestic law, namely the International Crimes Act which allows national courts to try crimes which come under the remit of the ICC.

Mungai also argued that his client should be furnished with all the ICC material that supported the request for his arrest.

At the end of January, Justice Richard Mwongo ruled that the High Court was unable to hear Mungai’s challenge to the interior minister’s request for an arrest warrant.

In denying the challenge, however, Justice Mwongo also ordered a stay in proceedings – including action on the arrest warrant – until such time as a hearing took place on Mungai’s appeal against the court’s decision.

On March 19, Mwongo reversed his earlier decision, effectively giving Lenku the green light to proceed with the application.

Mungai’s appeal against the judge’s January 31 decision denying his legal challenge has not yet been heard.

Barasa’s lawyer did not appear at the March 19 hearing, as he was representing another client in an appeal hearing. He had requested a further adjournment of proceedings until a date when he could be present, but Justice Mwongo did not grant one, opening the way for Lenku’s application.

The lawyer responded to the March 19 ruling by writing to Chief Justice Mutunga, asking him to intervene and halt all action on the Barasa arrest warrant until the appeal has been heard.

On March 20, he wrote to Mutunga informing him why he had been unable to attend court the previous day, adding, “In other courts such applications [for an adjournment] have been allowed as a matter of common sense.

“We hereby urge your Lordship to intervene in this matter to ensure that the [arrest and extradition process under the International Crimes Act] being challenged by our client do not commence within the next 14 days from today.”

Although Justice Mwongo gave the go-ahead to proceed with Lenku’s application, a source within the office of the Director of Public Prosecutions (DPP), another party to the proceedings, has told IWPR that it is yet to move forward on it.

When it does so, the application will be heard by the High Court, and Barasa will not be a party to the proceedings.

But if an arrest warrant is issued, the process will not end there.

If Barasa is arrested by the Kenyan authorities, he will have a legal right to challenge this in the High Court. If the court then rules that his arrest is lawful, he can appeal against that decision at the Court of Appeal.

It could be thus be many months before Barasa is extradited to The Hague.

“Whatever Lenku does under the Kenyan law there is still a long procedure [to arrest Barasa],” Mungai told IWPR. “We are just at the preliminary stage.”

Meanwhile, Mungai has lodged a separate legal challenge arguing that the ICC cases against Kenyatta, Ruto and Sang are illegal, and that by extension, the Hague court’s arrest warrant against his client contravenes Kenyan national law.

This case is to be heard by a separate bench of three judges on May 22. Mungai will argue that because Kenya did not incorporate ICC law into national legislation (in the shape of International Crimes Act), until 2009, the cases now before the ICC are invalid. He will argue that Kenyan citizens cannot be charged for offences which occurred in 2007 and 2008, as that was before the law came into force.

He will argue that the High Court should rule on whether the ICC arrest warrant is valid before it sanctions Barasa’s arrest and surrenders him to The Hague.

“The arrest warrant has been issued with regard to proceedings that are not valid,” Mungai told IWPR.

Bernard Momanyi is a reporter for ReportingKenya.net and News Editor at Capital FM in Nairobi. IWPR’s Africa Editor Simon Jennings also contributed to this report.

This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.