Barasa Opens Second Challenge against ICC Arrest Warrant

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.

6 Comments

  1. Have we lost our independence and subject ourselves to Kangaroo courts in foreign lands?Osuji should shut up, we are not his slaves.What does it benefit him to convict our leaders falsely.We stand independent and those underatting us are doom to fail.

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  2. With the way the Africa continent case his being handled by ICC so far, it seems there are interested parties behind the scene who are pulling strings. May be that is why the case involving Kenyan leaders is done by fellow Africans – Judge Osuji and Prosecutor Bensuda. When will Africa countries wake up and be truly independent. Stop being used by those who are not even members (of ICC) to fight your kinsfolk.

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  3. We really need to seek true justice, the one thing I know no one planned the 2007/8 violence. Thus ICC should ask for the reason for the violence n the who paticipated .

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  4. I hope in Africa and more especially in Kenya many elections are mered by violence during campaigns and after poll results whether legitimate or illegitimate.So how did these gentlemen incite? No No please! They ought to be freed.

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  5. Kalenjins were armed to their teeth. They were trained to fight using armunition. They were also incited by someone, as investigations shows/points out. If that wasnt the case, why did Ruto/Sang boys in Gicheru and Barasa bribe witnesses? The fact still remains that dangerously armed Kalenjins killed people and to make it worse not only men but pregnant women, children, the disable and the elderly. In some cases, burning them alive. This deeds took place in the Rift Valley and on Western borders. When you were doing this, you thought it was just and fair and your murdereous men were true warriors. You assumed that, you were above the law and untouchable, which is true but only in Kenya. And most of all you forgot that there is a God up there, who answers prayers, WHO ONLY IS THE GIVER AND TAKER OF LIFE, who defends widows and ophans, who loves all people equally. Peoples cries came before God, and He has Ruto& Sang, just as He did strike Saul on his way to Damascus saying, “Saul, Saul why are you persecuting me.” Paul did not literaly persecute God, but His people/christians. So the day has come, that Ruto/Sang have been exermined and found wanted. That blood that has stained their hands through those demonic murders, will hound them, the murderers, and their defenders. Those facing justice at the Hague and those still enjoying freedom in our beloved nation. ALWAYS REMEMBER THAT, THERE IS A POWER SO STRONG THAT MAKES THE RULERS OF THIS WORLD TO TREMBLE. Gods Power!!!!

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  6. Barasa needs to be arrested and face the consequences of his action. Did not think first before accepting a pay off to carry out the works of bribery. You are a traitor to your people and you should serve time for your participation in this bribery scandal, and therefore perverting the cause of justice. You should have thought about it in the first place. You should therefore be arrested if not surrender to Interpol, and be extradited to the Hague to answer your part in this mass murders and cover up. Be man enough and stop winging like a baby Mr Barasa, for your time has come…!

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