Journalist Walter Barasa, who is being sought by the International Criminal Court over allegations of witness tampering in the case against Deputy President William Ruto moved to court yesterday to block his arrest and surrender to the Hague based court.
In an urgent application, Barasa said the procedure set out in the International Crimes Act in respect of arrest and surrender of persons to the ICC was fundamentally flawed and invalid under the Kenyan constitution. The case will be heard today.
The Eldoret based journalist who is represented by Kibe Mungai stated that the decision by the Interior Secretary Joseph Ole Lenku to notify the High Court of the ICC's request and subsequently ask the court to issue a warrant for his arrest contravened the constitution.
He argues that whereas Article 10 of the constitution mandates the Cabinet Secretary to uphold and enforce national values and principles of governance including rule of law, human rights, and accountability, the warrant of arrest against him violated the legal safeguards guaranteed in the constitution
According to Barasa, he has a legitimate right to be tried in Kenya before a competent court for any offences alleged by the ICC.
Barasa wants the court to bar ole Lenku from conducting proceedings for his arrest and surrender to the international court unless and until the Director of Public Prosecutions has made the decision under Section 19(2) on whether the existing exceptional circumstances make it unjust or oppressive to surrender him to the ICC for prosecution.
Barasa wants all supporting documents in order for the DPP to determine whether under section 19(2) of the International Crimes Act, the existing exceptional circumstances make it unjust or oppressive to arrest and surrender him to the ICC.
Barasa says the minister has violated his rights under article 35 of the constitution in denying him "information received from the ICC which he is entitled to for the exercise and/or protection of his rights to protection of law, human dignity, liberty and fair trial enshrined in articles 27, 28, 29 and 50 of the constitution".
He wants the High Court to compel the minister and Attorney General Githu Muigai to furnish to the DPP Keriako Tobiko with a copy of the request of the ICC for his arrest and also give him a copy.
"Section 7(1) of the sixth schedule of the constitution of Kenya, 2010 provides, inter-alia, that all law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the constitution. The International Crimes Act, 2008 is one of the statutes subject to the said section 7 of the sixth schedule of the constitution" he says.
"The ICC has apparently preferred charges against the petitioner in the wake of the petitioner's refusal to co-operate with ICC's investigators to implicate his Excellency Deputy President William Ruto with crimes against humanity using false testimony and fabricated evidence which themselves are offences under the Rome statute and the ICC," Mungai said yesterday.
The lawyer claimed that it was only after Barasa refused to co-operate with the ICC that he was threatened with arrest and prosecution for various offences against the administration of justice that would make him liable for imprisonment for up to five years.
Kibe wants the court to issue a declaration that the respondents have violated his fundamental rights and freedoms enshrined in articles 27, 28, 29, 35, 47 and 50 of the constitution by commencing proceedings before notifying and furnishing him with the information and evidence upon which theICC seeks his arrest and surrender.
Also sought is a declaration that the respondents must refuse the request for arrest and surrender of Barasa to the ICC.