The Hague has invited the government to respond to claims by the Prosecutor Fatou Bensouda it was hiding the assets of President Uhuru Kenyatta.
Coming less than two months before the trial date for President Kenyatta, ICC Judges Kuniko Ozaki, Robert Fremr and Chile Eboe-Osuji said they would make a ruling on the matter after reading Kenya’s submissions.
The Trial Chamber judges in charge of the case facing the President said they would decide whether to forward the issues raised by Ms Bensouda to the Assembly of State Parties about the government’s failure to co-operate with investigations.
“The chamber may make a finding on non-compliance and refer the matter to the Assembly where a state party fails to comply with a request for co-operation by the court,” they observed.
They, however, stated: “The chamber therefore considers it appropriate to invite observations from the Kenyan government on the application.”
Attorney-General Githu Muigai was given until January 8 to file the observations on the issues of refusing to co-operate with the prosecutor.
Ms Bensouda, in her application a week ago, had informed the judges that despite all the requests she has submitted to the government regarding the details of the financial status of President Kenyatta, she had not received any positive response.
Luckily for her, the government waived the secrecy of the communications, allowing her to make them public.
The Prosecution submits that it has taken all possible measures to secure the Kenyan government’s compliance with the records request, and that the Kenyan government has failed to fulfil such request,” Ms Bensouda said in her application.
The trial of the President for crimes against humanity charges have been scheduled to begin on February 5.
She added: “ It (Prosecution) also submits that the Kenyan government has waived confidentiality for the communications related to the records request.”
Ms Bensouda wanted the judges to rule that Kenya has failed to comply and then refer the matter to the Assembly of State Parties for a decision on non compliance.
She claimed that the government’s reluctance to provide financial records of the accused may affect the case in which President Kenyatta is accused of financing perpetrators of the 2008 post-poll violence.
“These records are relevant to critical issues in this case, and may shed light on the scope of the accused’s conduct, including the allegation that he financed the crimes with which he is charged,” she said.
The Prosecutor argues that her office has made “repeated” requests to the government to produce the financial records, but Kenya has either been ambiguous in its responses or simply stone-walled the process.
“For 19 months, the OTP’s repeated requests have been met with obfuscation and intransigence.
The net effect of the GoK’s (Government of Kenya) inaction has been to limit the body of evidence available to the Chamber, hindering its fact-finding function and ability to determine the truth,” she said.
She argued that she pushed for the same before then President Kibaki.
In one of the responses, Kenya is said to have told her that any financial records of individuals must be accompanied with a court order to “fulfil this request”, but remained ambiguous on the parts that required such an order.
The prosecutor filed a complaint before the court in May.
Kenya, however, responded that the information would take longer because it “must be collated from various sources within and outside the government” and that consent must be obtained from relevant individuals.-nation.co.ke
