Former Kenyan journalist Walter Osapiri Barasa has opened a second challenge against an International Criminal Court (ICC) arrest warrant issued in connection with bribery allegations involving witnesses in the case against Deputy President William Samoei Ruto and another former journalist, Joshua arap Sang.
In an application filed on Friday, Barasa is asking Pre-Trial Chamber II to revoke the arrest warrant against him because, among other reasons, if he is detained by the ICC he is likely to be in detention longer than any possible sentence he may get if convicted. Barasa, through his lawyer Nicholas Kaufman, has asked the pre-trial chamber to issue him a summons instead of an arrest warrant. He has pledged to honour such summons because he does not have an “international network of supporters,” nor is he wealthy.
This application is the first time Barasa is challenging at the ICC the pre-trial chamber’s arrest warrant first issued under seal on August 2, 2013. The chamber unsealed the warrant in October 2, 2013. Barasa already has filed a separate challenge to the arrest warrant in the Kenyan courts. That case is at the Court of Appeal, which suspended the warrant until the main suit is heard.
Kenya is a member of the ICC and has made provisions of the Rome Statute, the founding law of the ICC, part of the country’s domestic law. It is these provisions that the Office of the Director of Public Prosecutions sought to effect through the Kenyan courts.
At the ICC, Kaufman has challenged the pre-trial chamber’s arrest warrant using Rule 117(3) of the ICC’s Rules of Procedure and Evidence. Rule 117 is concerned with arrest warrants issued by a pre-trial chamber. The sub-section being invoked in Barasa’s case allows a suspect to challenge an arrest warrant issued by a pre-trial chamber.
Kaufman has also challenged the reasons for issuing an arrest warrant covered in Article 58(1) of the Rome Statute. He has argued that his client cannot obstruct or endanger investigations or court proceedings, which is one of the provisions in Article 58(1) for issuing an arrest warrant. Kaufman has also argued his client is not an ongoing threat, which is another provision in Article 58(1). Kaufman has stated in the application that the prosecution is about to wind up its case and therefore they can no longer justify calling for Barasa’s arrest on the basis that there are still attempts to corrupt witnesses as the prosecution had claimed in 2013.
“In light of all the aforementioned, the learned Pre-Trial Chamber is respectfully requested to revoke the warrant for the arrest of the Suspect and to substitute in its place a summons to appear, with or without conditions, pursuant to Article 58(7) of the Rome Statute,” said Kaufman.
“The Suspect reiterates his readiness to cooperate with the ICC at the shortest notice while stressing that such cooperation is fully achievable without his pre-trial detention,” Kaufman added.
Barasa appointed Kaufman as his lawyer in September 2013, a decision Kaufman informed the registry about in a September 20, 2013 email. Last week’s application is the first one filed by Kaufman since the arrest warrant for Barasa was made public in October 2013.
Kaufman previously represented another Kenyan in a separate matter before the ICC. On September 28, 2012 he filed an application asking the then Trial Chamber V to rule on the legality of Dennis Itumbi’s arrest six months earlier. In the application, Kaufman argued that Itumbi’s arrest was due to the proceedings in the Kenya cases at the ICC and he wanted the chamber to find that the arrest was unlawful.
In its November 19, 2012 decision on the matter, Trial Chamber V concluded that the application was a preliminary step towards Itumbi demanding compensation if the chamber found he had been unlawfully arrested. The chamber rejected the application because it did not find his arrest in Kenya could be attributed to the prosecution or any other organ of the court. Itumbi now works as the Director for Digital Media in the Presidential Strategic Communications Unit.