Nairobi — The International Criminal Court (ICC) now says ex-journalist Walter Barasa cannot escape arrest and extradition since the principal of complementarity does not apply in his case.
Complementarity is a situation where a State party can be asked to initiate investigations and prosecution so that the ICC does not necessarily intervene.
According to the Office of the Prosecutor, the court has done its job and carried out investigations under article 70 of the Rome statute and it is up to the Kenyan government to co-operate fully and effectively.
"The warrant of arrest against Mr Barasa for allegedly corruptly interfering or attempting to corruptly interfere with prosecution witnesses was issued by judges at the request of the OTP," a statement from the office said.
ICC spokesman Fadi El Abdallah said that under the Rome Statute, the principle of complementarity does not apply to proceedings under Article 70.
"Under the Rome System, the principle of complementarity does not apply to proceedings under Article 70 (as per Rule 163 and Rule 165). Article 70(4) and Rule 162 makes it clear that the court may ask a State party to prosecute, but it is the International criminal Court's discretion because it has primacy over Article 70 offences." he said in the statement.
Barasa is wanted by the ICC for alleged interference with prosecution witnesses.
A warrant for his arrest was unsealed on October, 2, 2013 in which ICC Judge Cuno Tarfusser asked the Kenyan Government to arrest Barasa and hand him over to the ICC.
However Attorney General Githu Muigai said procedurally, the matter had to be taken to the Kenyan courts to determine if Barasa should be handed over to ICC or not.
The matter is still before the High Court.
The lawyer of the former journalist Kibe Mungai further wrote to the ICC asking for full disclosure of the circumstances surrounding the arrest warrant.
He alleged that ICC was planning to take him into custody through the back door.
Barasa is alleged to have bribed witnesses with between Sh1million and Sh1.5million for them to withdraw their evidence in the case against Deputy President William Ruto.
Among the witnesses who were allegedly offered bribes is P0536 - who was the first to testify against Ruto and his co accused Joshua arap Sang.
The ICC indicated that the witness was offered Sh1.4 million to recant her evidence while another P0336 was offered between Sh1 million and Sh1.5 million to pull out.
Barasa is also accused of organising a meeting where another witness, identified as P0256, could be bribed in order to withdraw her evidence.
The Attorney General pledged that once the court determines that he committed the crimes, the government will hand him over to the ICC.