Procedure of handing over a suspect to ICC

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.