International Criminal Court prosecutor Fatou Bensouda is demanding extensive details of properties and financial records relating to President Kenyatta.
She is seeking the information to bolster her case after a series of disappointments with some witnesses who have either withdrawn or been dropped.
The details are contained in confidential correspondence between officers of the Court and the Kenya government.
The correspondence took place between April 8 and 11 this year, just over a week after President Kenyatta had lost his bid to terminate the charges against him.
The Trial Chamber V(b) had also provided strict deadlines within which the Kenya government should submit to the prosecutor the information or risk the country being cited for non-cooperation with the ICC. Any failure could also influence the conditions under which President Kenyatta and Deputy President William Ruto will be tried during the hearing of their cases at The Hague.
A status conference has been set for July 9 “in order for the prosecution and the Kenyan government to provide an update to the chamber on the status of the execution of the Revised Request”.
The court’s push for Mr Kenyatta’s wealth, the correspondences point out, is to either support or contradict the assertion that Mr Kenyatta financed or provided material means for the 2008 post-election violence.
The first letter dated April 8 addressed to Interior and Coordination Cabinet Secretary Joseph ole Lenku wants Kenyan authorities to submit information on all the companies or businesses owned by Mr Kenyatta between June 1, 2007 and December 15, 2010.
The letter by the Head of Investigations Michel De Smedt wants details of such businesses even if the ownership is through third parties such as family members, political associates or business partners.
“The OTP requests the assistance of the competent authorities of the Republic of Kenya, pursuant to Articles 93(1)(i) and 93(1)(l) of the Rome Statute, to provide the information requested hereafter and transmit the relevant documents,” the letter states.
The government is required “to identify and provide copies (in an electronic format) of the records relating to companies, businesses, partnerships or trusts in which Uhuru Muigai Kenyatta had an ownership interest, directly or indirectly, whether as a shareholder, director, officer of the company, partner, trustee, beneficiary or otherwise, between June 1, 2007 and December 15, 2010,” the letter states.
The court also wants the government to identify all land or real property registered in Mr Kenyatta’s name either personally or through third parties which might have been transferred to any other person or entity between June 1, 2007 and December 15, 2010.
REPORT ON VEHICLES USED
In addition, the court wants to know details of all the vehicles Mr Kenyatta owns or regularly used between November 1, 2007 and April 1, 2008.
This means the Court is interested in all the vehicles Mr Kenyatta used in the last two months to the 2007 General Election and during the height of the post-election violence that rocked the country in early 2008.
Such information on vehicles, the letter says, should include usage of any cars belonging to companies associated with Mr Kenyatta during that period.
The letter, which is copied to Attorney General Githu Muigai and Kenya’s ambassador in Netherlands Rose Makena Muchiri, further seeks reports, in an electronic format, on payment of Income tax and Value Added Tax (VAT) by Mr Kenyatta and his companies between June 1, 2007 and December 15, 2010.
The prosecution also wants bank statements of current or saving accounts belonging to Mr Kenyatta “personally, or through third parties or by any corporate entities” associated with him six months before the 2007 elections and three years after the elections.
This information should include all transactions Mr Kenyatta may have done at foreign exchange institutions during the period.
That’s not all. Ms Bensouda also wants Kenyan authorities to provide her office with details of all those people Mr Kenyatta may have sent money via M-Pesa between June 1, 2007 and December 15, 2010.
“To identify all telephone numbers ascribed to, used by, or associated with Uhuru Muigai Kenyatta and provide copies of complete call data records including calls made and received, SMS or other messages sent and received together with financial details held by the service providers between June 1, 2007 and December 15, 2010.”
When done with money matters, Mr Smedt wants Mr Lenku to release any information held by security agencies and the National Intelligence Service on activities of Mr Kenyatta or companies associated with him six months before the 2007 General Election and three years later.
Upon receipt of the request for Mr Kenyatta’s wealth details, the judges had directed that the Kenya government notifies the prosecution, within two weeks of receiving the Revised Request, of any problems which may impede or prevent its execution.
The deadline lapses in two days. However, a legal contest lodged by Mr Muigai has put the order in jeopardy and could open a new battle front between the government and the court in coming days.
Mr Muigai wrote to the head of international cooperation section of the ICC Amady Ba on April 10 stating that so far, it seems “it has become difficult” to implement the order due to the complexity of the information needed about Mr Kenyatta’s wealth.
Mr Muigai faulted the “depth and breadth” of the ICC request.
He pointed out that the requested details went against an order by the Trial Chamber that required the prosecution to only seek information that remains of specific relevance to the charges.
The AG says Mr Smedt’s “Revised Request for Assistance” did not adhere to the principles of specificity, relevance and necessity as directed by the Trial Chamber.
The initial request on financial records of Mr Kenyatta had been made in April 2012. However, the current request, Mr Muigai contested, appeared to be an expansion of the clear parameters of the Trial Chamber’s direction on making of the Revised Request.
SPECIFIC INFORMATION
The AG asked the ICC to request specific information. However, Mr Muigai’s letter provoked an immediate reaction from the ICC the following day.
According to a letter from the office of the Director of Jurisdiction, Complementarity and Cooperation Division, Mr Phakiso Mochochoko, Ms Bensouda’s office was adamant that the request was in order and that the earlier request for financial records sought in 2012 was reasonable and proper.
Although the court’s request is directed to state organs, some of the information could be hard to come by without the input of Mr Kenyatta himself.
Even then, the court’s pressure on the government to provide the information is captured in its emphasis that the requested details should be transmitted as soon as they become available.
This could mean the court is not giving room for delays as it will not require all the information requested delivered together in lump sum.
The ICC pressure further touches on the need for the government to facilitate any domestic judicial requirement that would be needed to execute the request.
