Kenyan Court of Appeal Suspends Arrest Warrant Against Barasa

Today, Kenya’s second highest court has suspended an International Criminal Court (ICC) arrest warrant against Walter Osapiri Barasa to allow his appeal against a High Court ruling on the matter to be heard and determined.

A three-man bench of the Court of Appeal made the ruling after Barasa’s lawyer, Kibe Mungai, applied for such an order. On May 14, Principal High Court Judge Richard Mwongo ordered that an arrest warrant be issued against Barasa on the basis of an application by the Director of Public Prosecutions (DPP). The DPP made the application after Kenya received the ICC arrest warrant against Barasa.

The ICC issued an arrest warrant against Barasa in August last year on charges of bribing or attempting to bribe three prosecution witnesses in the trial against Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang. The arrest warrant against Barasa was first issued under seal but was later made public in October.

Soon after the arrest warrant was made public, Barasa challenged it in the Kenyan High Court. The ICC is dependent on the police of countries that are signatories to the Rome Statute to enforce arrest warrants because it does not have its own police service. The Rome Statute, which is the guiding law of the ICC, requires that warrants and other court orders be executed following the local legal provisions of member states.

In Kenya’s case, much of the Rome Statute has been adopted as domestic law under the International Crimes Act. It is under this law, and the Kenyan constitution, that Barasa is challenging the arrest warrant issued against him.

Court of Appeal Judge Patrick Kiage said the court had directed the registry to set a date for hearing the appeal after 28 days have lapsed. Judge Kiage said Barasa’s appeal would be heard on a priority basis. The judge read out the ruling on behalf of the three-man panel of the Court of Appeal handling the case. It is led by Presiding Judge William Ouko. Judges Kiage and Kathurima M’inoti are its other members.

Judge Kiage said the court also directed Barasa’s legal team to file the appeal and supporting authorities within 10 days from Thursday. He said the respondents will then have 10 days to file their submissions once they have been served with Barasa’s appeal. The respondents are the Cabinet Secretary for Interior and National Coordination, the Attorney General, the Director of Public Prosecutions, the Inspector General of Police, Wilfred Ngunjiri Nderitu, Okiya Okoiti Omtatah, and Rev. John Mbugua. Nderitu is the lawyer for the victims in the ICC trial of Ruto and Sang.

When asked for their submissions on the ordering suspending the arrest warrant, none of the respondents challenged the suspension. Nderitu and Deputy Director of Public Prosecutions Kioko Kamula, however, did ask the court to set two conditions when suspending the arrest warrant. They asked the court to order Barasa to remain in Kenya for the duration of the case and that he also sign a recognizance that he will follow whatever orders the court issues. In response, Mungai said Barasa would have been in court on Thursday, but flights from Eldoret were full and prevented him from travelling to Nairobi. In their ruling Thursday, the Court of Appeal judges were silent on the conditions requested by Nderitu and Kamula.

There are two separate but related cases in Kenya’s court system concerning the ICC arrest warrant against Barasa. One case involves Barasa’s challenge to the ICC arrest warrant, arguing his constitutional rights will be violated if the warrant is executed. The second case involves an application by the Director of Public Prosecutions asking the High Court to issue an arrest warrant against Barasa following a request from the ICC that was received by the Cabinet Secretary for Interior Joseph Ole Lenku.

The first case began when Barasa filed a 10-point petition dated October 8, 2013 challenging the ICC action. On October 11, High Court Judge George Odunga ordered Kenyan police to protect Barasa from arrest until the petition is heard and determined. Judge Odunga said that the hearing of the petition would be handled by Judge Mwongo.

On October 18, Judge Mwongo issued a ruling that covered both Barasa’s petition and the Director of Public Prosecution’s application. In the ruling, he set the hearing of the petition for the end of October.

Judge Mwongo also noted that the International Crimes Act gave the Cabinet Secretary responsible the power to write regulations on, for instance, the procedure to be followed when dealing with a request from the ICC. The judge observed that the Cabinet Secretary had not made such regulations. Judge Mwongo, however, referred to constitutional provisions allowing a court case to proceed without being hindered by procedural technicalities or the absence of rules. On this basis the judge ruled that the Director of Public Prosecutions could file a criminal application requesting the court to issue an arrest warrant.

On Thursday, Barasa’s lawyer said that this October 18 ruling was the reason for the appeal because he believed the judge erred in law. Mungai explained that in his view the October 18 ruling allowed the judge to hear only one party – the Director of Public Prosecutions – when considering the ICC request for an arrest warrant. Mungai argued this was wrong. In response to a question from Presiding Judge William Ouko, Mungai clarified that he was not appealing Judge Mwongo’s January 31 judgement on the petition because that judgement was based in part on the October 18 ruling.

The second separate, but related, case is the application for the High Court to consider and allow the ICC request for an arrest warrant to be issued against Barasa. On October 9, Cabinet Secretary Ole Lenku wrote to Judge Mwongo forwarding the ICC arrest warrant that had been sent to him on September 23. Following the October 18 ruling, the Director of Public Prosecutions filed with the High Court an October 25 criminal application requesting an arrest warrant. Attached to this application was an affidavit sworn by Ole Lenku.

However, Judge Mwongo did not make any decision on the application for an arrest warrant until after he had issued his judgement on Barasa’s petition. In brief, the judge dismissed Barasa’s petition because he was of the view the ICC had jurisdiction over the case against Barasa, and Barasa’s rights were protected as the arrest warrant was only the preliminary stage of a case. Even after his judgement on Barasa’s petition, the judge did not make a decision on the DPP’s application until after an order suspending any arrest warrant against Barasa lapsed on March 19. On May 14, Judge Mwongo eventually ordered an arrest warrant be issued against Barasa.

This has now been suspended by the Court of Appeal’s ruling today.