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Submissions by Walter Osapir Barasa

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Submission by Barasa's lawyers in the Court of Appeal of Kenya seeking orders overturning the decison of the High Court to hand him over to the International Criminal Court for prosecution.
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  REPUBLIC OF KENYA IN COURT OF APPEAL AT NAIROBICIVIL APPEAL NO. 121 OF 2014BETWEEN WALTER O. BARASA APPELLANTVERSUSTHE CABINET SECRETARY MINISTRY OF INTERIORAND NATIONAL CO-ORDINATION 1 ST  RESPONDENTHON. ATTORNEY GENERAL 2 ND  RESPONDENTTHE DIRECTOR OF PUBLIC PROSECUTIONS 3 RD  RESPONDENTTHE INSPECTOR GENERAL OF POLICE 4 TH  RESPONDENTWILFRED NGUNJIRI NDERITU 5 TH  RESPONDENTOKIYA OKOITI OMTATAH 6 TH  RESPONDENTREV. JOHN MBUGUA 7 TH  RESPONDENT (Appeal  from the Ruling, Order and Directions of the High Court of Kenya at Nairobi made by the Honourable Justice R. M. Mwongo on 18th day of October, 2013 in Nairobi Constitutional Petition No.488 of 2013  ) BETWEENWALTER O. BARASA PETITIONERANDTHE CABINET SECRETARY MINISTRY OF INTERIORAND NATIONAL CO-ORDINATION 1 ST  RESPONDENTHON. ATTORNEY GENERAL 2 ND  RESPONDENTTHE DIRECTOR OF PUBLIC PROSECUTIONS 3 RD  RESPONDENTTHE INSPECTOR GENERAL OF POLICE 4 TH  RESPONDENTANDWILFRED NGUNJIRI NDERITU 1 ST  INTERESTED PARTYOKIYA OKOITI OMTATAH 2 ND  INTERESTED PARTYREV. JOHN MBUGUA 3 RD  INTERESTED PARTY   APPELLANT’S SUBMISSIONS  A static system of justice cannot be efficient. Benjamin Disraeli said change isinevitable. In a progressive country change is constant. Justice is a living,moving force. The role of the Judiciary is to keep the law marching in time withthe trumpets of progress. We do not want to have a wilted legal system in thiscountry. We want a legal system for the common will. 1   Justice C. B. Madan Your Honours, Those memorable words of Justice C. B. Madan in the case of Murai vs Wainaina No. 4[1982] KLR 38  best express the Appellant’s quest for justice since he learnt that the ICChad issued a warrant for his arrest.Pursuant to the indictment of the Appellant by the International Criminal Court (ICC)for the alleged offences against the administration of justice, the First Respondentapplied for a Warrant of Arrest and the same was granted by the Principal Judge Mr. Justice Richard Mwongo on 16 th May, 2014 after ex-parte criminal proceedings ordered by the learned Judge on 18th October, 2013. I.INTRODUCTION The Appellant – Walter Osapiri Barasa – has appealed against the Ruling, Directionsand Order of the High Court made on 18th October, 2013. The said Ruling anddirections were precipitated by the following series of events:-i)On 15 th  September, 2013 the Appellant met an Investigator of the InternationalCriminal Court known as Paul Irani at Topelli Restaurant near Nairobi Hospitalin Nairobi who informed me that the ICC had on 2 nd  August, 2013 issued awarrant for his arrest for various offences against administration of justice.However, Mr. Irani informed the Appellant that if he agreed to co-operate withthe ICC by implicating – through testimony – His Excellency Deputy PresidentWilliam Ruto in respect of the crimes against humanity charges he is currentlyfacing before the ICC, the said Warrant of Arrest would be withdrawn and hewould serve as an ICC witness with due privileges and protection.ii)The Appellant refused the offer to testify against the Deputy President Ruto inexchange for the withdrawal of the ICC Arrest Warrant and non-prosecution forthe alleged offences against administration of justice. The said Investigatoraccompanied by a Caucasian-looking colleague threatened to arrest theAppellant but they were probably dissuaded from doing because of thepossibility that such an arrest would cause an unusual spectacle in a public place. 2  iii)In the wake of the Appellant’s refusal to co-operate with the ICC on Monday 30 th September, 2013 the ICC Prosecutor Fatou Bensouda announced at The Haguethat ICC had indeed issued a warrant of arrest against him on 2 nd  August, 2013and had even made an unsuccessful attempt to arrest him. She further statedthat the warrant for the Appellant’s arrest and supporting documents had beenforwarded to the relevant Kenyan authorities and the co-operation of the KenyanGovernment was expected.iv)By a letter dated 4 th  October, 2013 the Cabinet Secretary, Ministry of Interior andNational Co-ordination – the First Respondent – wrote the Hon. Mr. JusticeRichard Mwongo, the Principal Judge, High Court of Kenya to transmit an ArrestWarrant issued by the International Criminal Court in the case of Prosecution vs.Walter Osapiri Barasa . The said letter, inter-alia, requested the Honourable Judge to consider the issuance of the warrant for the Appellant’s arrest under theLaw of Kenya. v)On 8th October, 2013 the Appellant filed Constitutional Petition No. 488 of 2013in the High Court of Nairobi seeking inter-alia the following objectives:-a)To challenge the constitutionality of the procedure set out in Part IV of theInternational Criminal Act, 2008 in respect of Arrest and Surrender ofPersons to the ICC. b)Seeking a finding that under the Constitution and Section 9 – 19 of theICA he is entitled to be tried before a competent Court in Kenya in respectof alleged offences against administration of justice.c)An order of certiorari to quash the decision of the cabinet Secretaryrequesting the Principal Judge to issue a warrant for the arrest of theAppellant pursuant to Section 29 of the ICA.d)A finding that the Respondents are prohibited from instituting and/ormaintaining proceedings against the Appellant under Part IV of the ICA 3  unless and until the First Respondent makes the Regulations provided forunder Sections 172 and 174 of the said Act.vi)Contemporaneously with the filing of the Petition, on 8th October, 2013 theAppellant filed an application seeking, inter-alia, the following orders:- a) THAT  pending hearing and determination of this Petition the Honourable courtbe pleased to order a stay of the First Respondent’s request for the arrest of thePetitioner/Applicant and further proceedings by the First Respondent pursuant toSection 29(1) of the International Crimes Act, 2008 presented to the Judiciary onOctober 7, 2013.b) THAT  pending hearing and determination of this Petition the Honorable Courtbe pleased to prohibit the Respondents jointly or severally from further action onthe Request of the International Criminal Court for the arrest and surrender of thePetitioner/Applicant to the ICC. vii)On 9th October, 2013 the Appellant filed an application seeking, inter-alia, thefollowing reliefs:- a) THAT the Honourable Court be pleased to order the First Respondent to furnishthe Petitioner/Applicant with copies of the Warrant of Arrest issued against himby the International Criminal Court and all the documents in support thereof.b) THAT  pending hearing and determination of this Application the HonourableCourt be pleased to grant an order of stay of the decision of the First Respondentrequesting the issuance of a warrant for arrest of the Applicant contained in theletter dated 4 th  October, 2013 and for a stay of any proceedings premised on theFirst Respondent’s said Request. viii)On 10th October, 2013 the parties herein appeared before the Hon. Mr. JusticeG. V. Odunga for the hearing of the Appellant’s two applicationsaforementioned. Before the Appellant’s advocates could present the same, acontroversy arose as to whether the case should proceed before Justice Odungain view of the letter dated 4th October, 2013 addressed to the Principal Judge. 4
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