Wednesday, October 9, 2013

Walter Barasa suffers first blow in his bid to stop arrest

 

 

Mr Walter Barasa. PHOTO /FILE NATION MEDIA GROUP

In Summary

• Justice Odunga ruled that although Mr Barasa’s application raised serious issues, it touched on a request that had already been made to the High Court

By PAUL OGEMBA
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Journalist Walter Barasa on Wednesday failed in his first attempt to stop his arrest and hand-over to the ICC to face charges of interfering with witnesses.

He, however, got a temporary reprieve after Mr Justice George Odunga directed Inspector-General David Kimaiyo to accord him security until Thursday, when his petition challenging the ICC warrant of arrest will be heard.

Justice Odunga ruled that although Mr Barasa’s application raised serious issues, it touched on a request that had already been made to the High Court, and which needed to be properly argued before a decision is made.

“The request for arrest has already been made to the principal judge of this court and the issue of determination at the preliminary stage will be whether a judge can stop proceedings which are before another judge of concurrent jurisdiction,” he said.

Justice Odunga also certified the application as urgent, and directed Mr Barasa’s lawyer Kibe Mungai to serve the Interior Cabinet Secretary, the Attorney-General, the Director of Public Prosecutions and Me Kimaiyo with the application for inter-parties hearing on Thursday.

CONSTITUTIONAL PROVISIONS

In his application seeking to stop execution of the ICC arrest warrant, Mr Mungai argued that Interior Cabinet Secretary Joseph ole Lenku and Attorney-General Githu Muigai had begun the process of arresting Mr Barasa without following provisions of the Constitution.

He complained that the two had made a request to the presiding judge of the High Court without informing Mr Barasa the contents of the warrant or the charges facing him.

“The move violated his rights to a fair hearing by failing to give him a chance to meaningfully participate in the proceedings,” he said.
He submitted that it was unlawful for Mr Lenku and Prof Muigai to present the request to the court without involving the Director of Public Prosecutions, who has the power to deal with criminal prosecutions.

He said Mr Barasa’s case entailed exceptional circumstances, which would make it unjust to surrender him to the ICC.

“Mr Barasa is being persecuted... on account of his refusal to become a witness in crimes against humanity cases facing Deputy President William Ruto at the Hague. He cannot therefore receive a fair hearing at the ICC given his fall-out with the ICC prosecution office,” he said.