Walter Barasa @ ICC: Reality Dawns

[MOON Ki]

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The man finally realizes that the court takes interfering with witnesses so seriously that he could easily be the only person left to be sorted out at the end of all this, with his "protectors" in the "clear" and abandoning him.    The court in the last year has made it quite clear that the time has come to send a strong signal on tinkering with witnesses; so one wonders what he and his lawyer have been thinking all along.

At any rate, after public statements and Kenyan-courts cases, in which he gave  all sorts of reasons as to why he "cannot" and "must" not end up at the Hague, he has suddenly changed tune: he is ready to appear "with or without conditions".   As he puts it, all he needs to be on his way is to the arrest warrant to be replaced with summons.

http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/ICC-0109-0113/court-records/fop/defence/Pages/31.aspx

Would the court be agreeable to such a "replacement"?  Why knows.   In the judges' shoes, I would simply say, "If you are ready to appear, then just hop onto a plane and appear". 

Barasa could be thinking of singing and cutting a deal.   If so, we could well see another Yebei-style  "incident".     At any rate, his application gives some hint as to what is on his mind, deal-wise or when he is finally dealt with:

[RV Pundit]

He should fly himself to ICC and apply to be released while on trial.  Judges don't entertain arguments over explicit orders.

I haven't read much about how he was involved but it would seem he was OTP intermediary turned enemy. If his argument is that his attempted but didn't succeed in actual transfer of money; then that is admission of guilty and he should be ready to start his 5 yr max jail term.

[Kim Jong-Un's Pajama Pants]

I have never said that Walter Osapiri Barasa is the smartest cookie in the jar.  If he expects to be let out of Kenya to go to the Hague, even if the ICC grants his request, he is even dumber than I thought.

[MOON Ki]

I have never said that Walter Osapiri Barasa is the smartest cookie in the jar.  If he expects to be let out of Kenya to go to the Hague, even if the ICC grants his request, he is even dumber than I thought.

There is the possibility that it is in fact his masters who have (with a new-and-improved offer), told him to go, but just to be sure that he doesn't sing the entire tune.  It is clear that the judges take a very dim of the obstruction, and it must be clear to all that the Barasa case sticks out like a sore thumb, both by being in the middle of this and the fact that they can't get a hold of him.   If Barasa were to point in another direction, he would take a lot of heat off Ruto.

There is also the fact of Osuji being sly again and sending a veiled message to the Mutunga's lot who have been sitting on the case: he notes that of the three branches of government, the executive and legislature have clearly shown that they wish to thwart the case.   The implicit question: what about the third?   The Kenyan court could well wake up and send him over, and he might as well pre-empt that.

[RV Pundit]

Meanwhile Sang and Ruto raises 11 appeleable issues. This drama is not about to end.

[MOON Ki]

Meanwhile Sang and Ruto raises 11 appeleable issues. This drama is not about to end.

Some of them seem contrived, and they might not be allowed to appeal on those.  Whatever is allowed, they have a very good chance on winning on the grounds that the stuff is not "testimony"; on that one, Osuji has already given them a very good argument to use. 

The problem for them is that Osuji has given them a double-edged. If the stuff gets thrown out by the Appeals Chamber, then the Trial Chamber simply turns around and admits it as material they need to determine the truth, which is what Osuji would have.   And that won't be appealable.   In fact, it gets worse for them: there was one case where the majority thought the OTP had not made a good enough argument; but according to Osuji even that witnesses statements can (and should) be admitted via this other path.

[RV Pundit]

I think nobody has a problem with Osuji reasoning. I think the statements are admissible as far as they are provide "background" on the oral testimony by the witness who recanted but then testified under judge orders. So the parts and parcel where both defense and prosecution canvassed issues around; are useful; the parts where prosecution choose not to pursue; are useless;

Any other ruling..would entail..calling the recanted witnesses back...and to be cross-examine on those issues....that prosecution didn't think wise to re-ask! They should have ask them same questions just for sake of introducing those testimonies as part of evidence...even if they witnesses recanted each and every part.

It something else if witnesses are dead...or have completely NOT appeared before court after being intimidated...then prosecution can ask for this big favour!

This seem like a difficult rule to enforce...despite the ASP best effort to deal with witness interference...you risk ending up with kangaroo court..where defense cannot confront evidence.

The problem for them is that Osuji has given them a double-edged. If the stuff gets thrown out by the Appeals Chamber, then the Trial Chamber simply turns around and admits it as material they need to determine the truth, which is what Osuji would have.   And that won't be appealable.   In fact, it gets worse for them: there was one case where the majority thought the OTP had not made a good enough argument; but according to Osuji even that witnesses statements can (and should) be admitted via this other path.

[MOON Ki]

In the judges' shoes, I would simply say, "If you are ready to appear, then just hop onto a plane and appear". 

Court to Barasa, in a decision that sets a record for brevity: "Come over whenever you are ready.  Once we have you under lock and key, we can talk".

Also, should he genuinely wish to appear before the Court as he maintains, Walter Osapiri Barasa, who is not currently in detention in Kenya, may travel to the seat of the Court to voluntarily appear, as envisaged in article 60(1) of the Statute. In accordance with the warrant of the arrest issued against him, he will then be detained unless and until any interim release is granted.

http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/ICC-0109-0113/court-records/chambers/ptcII/Pages/35.aspx

[RV Pundit]

Look like two more will appear Philip Kipkoech and Laywer Paul Gicheru...who were arrested with sealed warrants. Now what is the process for taking to ICC.

[Kim Jong-Un's Pajama Pants]

In the judges' shoes, I would simply say, "If you are ready to appear, then just hop onto a plane and appear". 

Court to Barasa, in a decision that sets a record for brevity: "Come over whenever you are ready.  Once we have you under lock and key, we can talk".

Also, should he genuinely wish to appear before the Court as he maintains, Walter Osapiri Barasa, who is not currently in detention in Kenya, may travel to the seat of the Court to voluntarily appear, as envisaged in article 60(1) of the Statute. In accordance with the warrant of the arrest issued against him, he will then be detained unless and until any interim release is granted.

http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200109/related%20cases/ICC-0109-0113/court-records/chambers/ptcII/Pages/35.aspx

My hunch is Baraza wants to go over.  And be locked up.  He knows, or should know, that going over and being day scholar is playing with fire.

vooke will disagree, but it's a no brainer to me, that involvement of the nature Baraza is accused of comes with risks more dire than serving a stint in a Hague jail.  I wish Yebei was alive so we can ask if he has a different opinion.

[Kadudu]

The guys thought ICC is Mutunga's "Koti bandia".
ICC has a long memory unlike Kenya's Kibera court. See the The International Criminal Tribunal for the former Yugoslavia (ICTY) still chasing guys after 20 years.

Look like two more will appear Philip Kipkoech and Laywer Paul Gicheru...who were arrested with sealed warrants. Now what is the process for taking to ICC.