Perhaps as a confirmation of the stern warning recently issued by Judge Chile Eboe-Osuji that serious action will be taken against anyone found to be interfering with witnesses in the Kenyan case at the ICC, the court issued a warrant of arrest for Kenyan journalist Walter Barasa on Wednesday.
Barasa is accused of being criminally responsible under Article 25(3)(a) of the Rome Statute as a direct perpetrator for the crime of corruptly influencing three prosecution witnesses by inducing them with millions of shillings so as not to testify against Deputy President William Ruto.
As the dust settles on the issuance of the warrant and in view of the fact that Parliament recently passed a motion aimed at pulling Kenya out of the Rome Statute, speculation is rife that the Kenyan government may or may not comply with the warrant. Matters are further complicated by the fact that in applying for the warrant, ICC Chief Prosecutor Fatou Bensouda pointed an accusing finger at a "circle of officials" within the Kenyan administration for working in cahoots with Barasa to dissuade witnesses from testifying in the Kenyan cases at the ICC.
Suffice it to point out that the issuance of a warrant of arrest and its subsequent execution is a matter of law. Consequently it is to the relevant laws that one should resort in an attempt to decipher the ICC warrant and its implications. Speculations not grounded in clear provisions of the law are immaterial.
In this case the relevant laws are the Rome Statute, which establishes the ICC, the constitution and the International Crimes Act.
By virtue of Article 2(6) of the Kenyan constitution, the Rome Statute which Kenya has ratified is part and parcel of our laws. The Kenyan government is therefore obligated to comply with lawful rulings or directives issued by the ICC save in exceptional circumstances provided for in the Rome Statute and the International Crimes Act.
But most critical to the execution of the warrant issued against Barasa is the International Crimes Act. This is the Act that lays down the procedure to be followed in executing the warrant. Section 29 of of the Act stipulates that, once a request for surrender is received from the ICC, the relevant minister, who is presently the Attorney General, if satisfied that the request is supported by the relevant information required by the Rome Statute, has to notify a judge of the High Court in writing that a request has been made and ask the judge to issue a local warrant of arrest for the person whose surrender is sought.
In conveying the notice to the judge, the AG is enjoined to furnish the judge with a copy of the request and supporting documents.
On receiving and interrogating the request and the supporting documents, the Judge may or may not issue a warrant. The Judge will issue the warrant if satisfied that the person against whom the warrant is sought is or is suspected to be in Kenya and that there are reasonable grounds to believe that a request for surrender has indeed been issued against the person in question. Alternatively, on considering the request and supporting documents, the judge may refuse to issue a warrant. The judge is, however, obligated to give reasons for the issuance or refusal to issue a warrant. Once the said person is arrested, he is taken before the high court to determine eligibility for surrender to the ICC. If in the opinion of the High Court, the person was properly arrested and is indeed the person against whom the ICC warrant was issued, he is eligible for surrender.
It is worthy of note that in proceedings to determine eligibility for surrender, the accused is not permitted to adduce evidence or defend himself against the accusations levelled against him. On determining that the said person is eligible for surrender, the High Court will issue a warrant for his detention and send a copy of the warrant of detention to the AG. The matter is then left in the hands of the AG to surrender the accused to the ICC. This is the procedure that will have to be followed in the Barasa case.
It therefore follows that the law enjoins the Kenyan government to surrender Barasa to the ICC. Whether the government is or is not willing to execute the warrant issued against Barasa is a different matter altogether. If the government goes ahead and surrenders him to the ICC, it will have acted in accordance with the law and cannot be faulted.
A showdown with the ICC is, however, looming in the event that the government refuses to arrest and hand over Barasa to the court. If this will be the case, the court, in line with Article 87(7) of the Rome Statute, will make a finding to the effect that Kenya has refused to cooperate and thereafter refer the matter to the Assembly of State Parties.
What happens thereafter is entirely within the discretion of the state parties.
As to what becomes of the warrant and its execution, only time will tell.
Thursday, 3 October 2013
Wednesday, 2 October 2013
We all have a role to play in curbing terrorism
Two weeks have elapsed since the fateful Westgate terrorist attack that threw the country into mourning. Many Kenyans are still reeling from the unfortunate ramifications of the attack. Besides the many innocent lives that were brutally cut short and the survivors still nursing injuries, some families remain in the dark as to the whereabouts of their loved ones who are said to have been at the mall when the terrorists struck.My heart goes out to such.
Reactions to the attack have been varied. Whilst one school of thought has faulted the government for failing to deploy the expertise and facilities at its disposal to avert the attack another school of thought has absolved the government of any blame terming the attack as something that could have taken place even in the most advanced countries such as the US, the UK among others. Both groups have a point and cannot just be dismissed at a whim.
Be that as it may, there is no denying that we have been badly hit and as we count our losses and chart the way forward, trading blame is the least of what we need. Top on the list of what should preoccupy us is the measures that should be taken to stave off such attacks in the future. Admittedly, whatever measures we take may not completely obliterate the possibility of such attacks in the future but we can at least do something.Resigning to fate is not the way to go.
One key area to begin with is undertaking a thorough overhaul of our security and defence institutions. Much of what is amiss in our security system cannot be blamed on the new Jubilee regime. Jubilee will, however, be to blame if it fails to move with speed and correct what is wrong with our security institutions. Information doing rounds is to the effect that the approach adopted by our security forces in confronting the terrorists was characterised by much confusion.
Kenyans have learned with a sense of disbelief that officers from the General Service Unit, Recce squad, had at the initial stages of the attack brought the attackers under control and were on the verge of mollifying them. But when members of the Kenya Defence Forces arrived at the scene, a scuffle pitying the GSU against KDF ensued, affording the terrorists time to regroup and launch more attacks on civilians and security officers. It is even rumoured that some of the security officers who lost their lives in the fight were mowed down by their compatriots following disagreements on how to go about battling the terrorists.
To avoid such undesirable eventualities, the government should swiftly come up with a national security strategic plan. This will bring about establishment of a special anti-terrorism squad whose principal responsibility would be to combat terrorist activities. With the help of countries like Israel and the US which have been highly successful in truncating terrorist activities, members of this squad should be afforded the best training ever. This is the only squad that should be deployed whenever there is a terrorist attack unless circumstances demand otherwise.
It has also been argued that, haunted by unemployment and an inability to make ends meet, many Kenyan youth are being lured into terrorist groups such as the al Shabaab with promises of financial gain. This cannot be gainsaid in view of the burgeoning number of educated but unemployed youth. On joining these terror groups and being indoctrinated, these youth end up radicalised and are send back home to unleash terror such as was witnessed at the Westgate Shopping Mall. Urgent measures must be put in place to curb this trend of Kenyan youth joining terror groups.
Calls for the government to create more job opportunities are in order and should be encouraged. But the responsibility of improving the lot of Kenyan youth cannot just be left to the government alone. Other players such as churches, mosques, schools among others have a role to play in moulding the youth into responsible adults. Parents, churches, mosques and schools should take it upon themselves to inculcate in the youth values that will cushion them from corrupting influence. In the Holy Bible, precisely the book of Proverbs 22:6, it written that, train up a child in the way he should go and when he is old, he will not depart from it.
It also bears noting that a terrorist attack executed with the precision witnessed at Westgate takes quite a while to plan. This is why claims that the terrorists had rented a shop at the mall and had been strategising for a whole year are not far-fetched. It should, nonetheless, not be lost to us that the planning takes place in our midst and some of the people involved are our neighbours, brothers and sisters. Rather than wait until it is too late and start to heap blame on the government, Kenyans must readily share information about suspicious activities and people with the government. The government should in turn act forthwith on receiving such information.
Before letting out property to anyone, full disclosure of who they are, what they do, where they come from, their intention in leasing the property and other relevant information should be sought. We all have a role to play in curbing terrorism.
Reactions to the attack have been varied. Whilst one school of thought has faulted the government for failing to deploy the expertise and facilities at its disposal to avert the attack another school of thought has absolved the government of any blame terming the attack as something that could have taken place even in the most advanced countries such as the US, the UK among others. Both groups have a point and cannot just be dismissed at a whim.
Be that as it may, there is no denying that we have been badly hit and as we count our losses and chart the way forward, trading blame is the least of what we need. Top on the list of what should preoccupy us is the measures that should be taken to stave off such attacks in the future. Admittedly, whatever measures we take may not completely obliterate the possibility of such attacks in the future but we can at least do something.Resigning to fate is not the way to go.
One key area to begin with is undertaking a thorough overhaul of our security and defence institutions. Much of what is amiss in our security system cannot be blamed on the new Jubilee regime. Jubilee will, however, be to blame if it fails to move with speed and correct what is wrong with our security institutions. Information doing rounds is to the effect that the approach adopted by our security forces in confronting the terrorists was characterised by much confusion.
Kenyans have learned with a sense of disbelief that officers from the General Service Unit, Recce squad, had at the initial stages of the attack brought the attackers under control and were on the verge of mollifying them. But when members of the Kenya Defence Forces arrived at the scene, a scuffle pitying the GSU against KDF ensued, affording the terrorists time to regroup and launch more attacks on civilians and security officers. It is even rumoured that some of the security officers who lost their lives in the fight were mowed down by their compatriots following disagreements on how to go about battling the terrorists.
To avoid such undesirable eventualities, the government should swiftly come up with a national security strategic plan. This will bring about establishment of a special anti-terrorism squad whose principal responsibility would be to combat terrorist activities. With the help of countries like Israel and the US which have been highly successful in truncating terrorist activities, members of this squad should be afforded the best training ever. This is the only squad that should be deployed whenever there is a terrorist attack unless circumstances demand otherwise.
It has also been argued that, haunted by unemployment and an inability to make ends meet, many Kenyan youth are being lured into terrorist groups such as the al Shabaab with promises of financial gain. This cannot be gainsaid in view of the burgeoning number of educated but unemployed youth. On joining these terror groups and being indoctrinated, these youth end up radicalised and are send back home to unleash terror such as was witnessed at the Westgate Shopping Mall. Urgent measures must be put in place to curb this trend of Kenyan youth joining terror groups.
Calls for the government to create more job opportunities are in order and should be encouraged. But the responsibility of improving the lot of Kenyan youth cannot just be left to the government alone. Other players such as churches, mosques, schools among others have a role to play in moulding the youth into responsible adults. Parents, churches, mosques and schools should take it upon themselves to inculcate in the youth values that will cushion them from corrupting influence. In the Holy Bible, precisely the book of Proverbs 22:6, it written that, train up a child in the way he should go and when he is old, he will not depart from it.
It also bears noting that a terrorist attack executed with the precision witnessed at Westgate takes quite a while to plan. This is why claims that the terrorists had rented a shop at the mall and had been strategising for a whole year are not far-fetched. It should, nonetheless, not be lost to us that the planning takes place in our midst and some of the people involved are our neighbours, brothers and sisters. Rather than wait until it is too late and start to heap blame on the government, Kenyans must readily share information about suspicious activities and people with the government. The government should in turn act forthwith on receiving such information.
Before letting out property to anyone, full disclosure of who they are, what they do, where they come from, their intention in leasing the property and other relevant information should be sought. We all have a role to play in curbing terrorism.
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