Lawyers Say Kenya Must Comply With ICC Arrest Warrant

Experts in international law insist Kenya has no choice but to surrender a journalist wanted by the International Criminal Court (ICC), despite hints from officials that the national judiciary will make the final decision on whether he should be sent to The Hague.

On October 2, an ICC judge unsealed an arrest warrant against Walter Barasa, who is accused of bribing and attempting to corruptly influence witnesses in the case against Kenyan deputy president William Ruto.

Following repeated allegations by ICC prosecutors that the Kenyan government is not cooperating with its investigations in the country, the Office of the Prosecutor (OTP) called on officials there to deliver Barasa to The Hague.

“Sending this warrant to Kenya now is an opportunity for the Kenyan government to demonstrate the cooperation that they say they have been giving to the ICC,” the Prosecutor Fatou Bensouda said on October 2. “This is an opportune moment to arrest Barasa and surrender him to the court.”

Ruto, who is charged together with former journalist, Joshua Arap Sang, is currently on trial at the ICC for orchestrating attacks in Kenya’s Rift Valley region in the aftermath of a disputed presidential election in December 2007.

Both men face charges of murder, persecution and population displacement. The wave of violence from December 2007 to early 2008 left 1,100 people dead and forced 650,000 others from their homes.

The warrant against Barasa was issued confidentially on August 2. Prior to making the warrant public, the ICC tried unsuccessfully to have Barasa arrested in an unspecified third country.

Shortly after being informed of the ICC warrant on October 2, Attorney General Githu Muigai issued a statement that the Kenyan judiciary would rule on whether Barasa could and should be arrested.

“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,” Muigai said in a statement. “During the judicial consideration of the legality of the warrant, the subject is entitled to make representations to the court. The final determination on the enforceability of the warrant is therefore a judicial one.”

Legal experts responded by pointing out that the Kenyan state is legally obliged to arrest Barasa and hand him over to the ICC.

Alex Whiting, a professor of international law at Harvard University in the United States, said the Kenyan judiciary had a “very limited role” to play.

“Their main function is to ensure that the person who is arrested is in fact the person sought in the arrest warrant,” Whiting told IWPR. “They are also permitted to consider the issue of detention, but other than that, there is no other issue to consider.

“If the attorney general is suggesting that it goes beyond that, and the suspect has a right to be heard on other matters with respect to the charges or evidence or his responsibility, that is just not right.”

Whiting said that under Kenya’s legal obligations as a member of the ICC, its judiciary has no say on the legality or merits of this arrest warrant.

“They are simply obliged to surrender the person to the ICC,” he said. “The judiciary has no discretion or judgement about whether the charges should be brought, about the evidence in the case, or anything like that.”

Prosecutors accuse Barasa of bribing or attempting to bribe three protected witnesses referred to as P-0336, P-0536 and P-0256.

They say they have evidence that he offered to pay one of the three between one million and 1.5 million Kenyan shillings (11,600-17,000 US dollars), not to testify on behalf of the prosecution.

Prosecutors say he offered another witness and her husband a total of 1.4 million shillings (16,300 dollars) to withdraw her evidence.

Since the warrant was made public, Barasa’s lawyer, Nicholas Kaufman, has travelled to Kenya to meet his client, who denies the charges against him.

The lawyer said that Muigai was following the proper procedures.

“What the attorney general has said is absolutely correct,” Kaufman told IWPR. “We will first of all apprise ourselves of how the Kenyan authorities intend to act with respect to the demand made of them by the International Criminal Court. I should add that no submissions have yet been made in court on behalf of Mr Barasa.

“We still await the Kenyan authorities’ decision with respect to how they propose to deal with the demand from The Hague,” he added.

According to the ICC’s founding treaty, the Rome Statute, the conditions for cooperating with the ICC when it charges a national with offences against the administration of justice are “governed by the domestic laws of the requested state”.

The relevant procedures are outlined in Kenya’s own International Crimes Act.

According to Misa Zgonec-Rozej, an associate fellow in international law at Chatham House in London, the act also provides a limited role for Kenya’s judiciary.

“This procedure does not seem to authorise a domestic judge to consider the merits of the ICC arrest,” Zgonec-Rozej told IWPR.

According to the International Crimes Act, a request from the ICC to arrest a suspect can only be refused if there are “exceptional circumstances that would make it unjust or oppressive to surrender the person or give the assistance requested”.

But Zgonec-Rozej was doubtful that any such issue could be raised concerning the warrant against Barasa. “It does not seem that such exceptional circumstances exist in Barasa's case,” she said.

This is the first time that the ICC has issued an arrest warrant against someone for interfering with the administration of justice.

The court itself is insisting that Kenya must comply with the arrest warrant, although staff there would not discuss Muigai’s comments or the domestic procedures for handing the suspect over to The Hague.

“Kenya, as a state party to the Rome Statute, has the obligation to cooperate with the ICC including for the implementation of the arrest warrant and his surrender to the ICC,” the court’s spokesman, Fadi El Abdalla, told IWPR.

Felix Olick is a reporter for ReportingKenya.net and The Standard newspaper in Nairobi. Simon Jennings is IWPR’s Africa Editor.

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