TO ARREST OR NOT TO ARREST-THAT IS THE QUESTION

Kenya’s Attorney General Githu Muigai faces a difficult decision over the application by the ICC to arrest a Kenyan journalist. Whatever option he settles on will have political and legal ramifications that am sure has his team of legal experts scratching their heads at Sheria House.

First it is a constitutional prerogative that the A.G to ensures all legal proceedings against Mr. Barasa be fair and that he is given notice of these proceedings and an opportunity to be heard before the government can whisk him away to The Hague.
Well that’s just the beginning.

Am not sure if ICC will be forthcoming in guaranteeing Mr. Barasa these rights, and by doing so would the court impede the prosecutor’s desire for privileged access to some witnesses identities?

Interior Cabinet Secretary Joseph Ole Lenku has forwarded the warrant of arrest against journalist Walter Barasa to the High Court for consideration. That action does not foretell the government’s willingness to cooperate with the court, but rather it is just a procedural requirement whose rules require;
-a hearing appropriate to the circumstances;
-lack of bias;
-evidence to support a decision; and
-inquiry into matters in dispute.

Now neither am I a lawyer nor am I privy to the intrigues that led to the issuing if these warrant of arrest. I only know what I’ve read in the news. I am however convinced that given our propensity to suck the legal system of every defensible footnote in an effort to evade justice, we shall soon be witnessing a battle royale at the High Court.

Questions abound: Will Attorney General Githu Muigai seek to enforce the warrant ? What will be The Kenyan Chief Justice’s role in this given the role of the Judiciary as an arbiter as well as an interpreter/enforcer of the law.
Who will be representing the ICC when the extradition order is challenged?

Will the ICC case stand the test of International Jurisprudence in observance of the principles natural justice?
Put simply, the principles of natural justice require a decision maker to give a person or organization who will be affected by the decision maker’s decision an opportunity to “have their say” about the case against them, which the decision maker must then take into account when making a decision. It also requires a decision maker making a decision not to have a personal interest in the outcome and to make a decision impartially.

First point, journalist Walter Barasa will have to be granted a chance to fight this international arrest warrant here in Kenya. And who will be prosecuting the case? Will it be attorney General or the ICC?

Evidently it is in the interest of Mr. William Ruto to distance himself from these proceedings and yet he can’t because they directly relate to ICC the prosecution claim that The V.P through proxies attempted to tamper with the prosecution’s witness.

And therefore as a government, will it want to send this journalist to The Hague or defy the warrant?

What perceptions are likely to be created by a recalcitrant Attorney General?

There are questions surrounding this catch-22 legal pickle that will sure lead to an impasse or a likely showdown between Githu and Bensouda.

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