JOURNALIST Walter Barasa yesterday lost the first stage of his bid to avoid extradition to the International Criminal Court to face charges of witness tampering.
High Court judge Richard Mwongo dismissed Barasa's application. Interior secretary Joseph Ole Lenku must now formally lodge extradition proceedings so that he can be handed over to the ICC.
Justice Mwongo held that the ICC arrest warrant against Barasa are special proceedings which do not entitle him to an opportunity to be heard in Kenya prior to his arrest. He said that the Rome Statute was ratified by Parliament and therefore forms part of Kenyan law.
"I find that this is not the right forum to vent the issues relating to appropriateness of the issuance of the arrest warrant. The petitioner's allegations are therefore premature at this stage," said Mwongo.
ICC judge Cuno Tarfusser issued an arrest warrant for Barasa on August 2 following a request by Chief Prosecutor Fatou Bensouda. He is accused of witness tampering in the case against Deputy President William Ruto and broadcaster Joshua Arap Sang.
Ole Lenku forwarded the ICC request to Chief Justice Dr Willy Mutunga who appointed Justice Mwongo to handle the issue.
But before Lenku's application was heard, Barasa filed an application challenging the constitutionality of the extradition proceedings. Through lawyer Kibe Mungai, he argued that his fundamental rights were violated by commencing proceedings before notifying him of the evidence upon which the ICC seeks his arrest.
He also argued that the alleged offences facing him in ICC can be tried locally.
Justice Mwongo ruled that both the Kenyan courts and the ICC have jurisdiction in the case, and that the ICC was not under any legal obligation to consult the government before seeking his arrest.
"There is no provision that a person at the pre stage is entitled to a hearing or to be provided with material that is to form basis of the charge. These rights are available to the petitioner after arrest," he said.
Justice Mwongo gave Barasa 14 days to lodge an appeal to challenge his ruling and to stop further extradition proceedings.
The judge ordered the state to provide Barasa with 24-hour protection until a determination is made on the application by the minister.
Justice George Odunga initially ordered for the protection after Barasa told him that he was afraid that ICC agents were planning to kidnap him and take him to Hague.