AG says no to ICC over Uhuru phone records
Kenya could be referred to the Assembly of State Parties for failing to honour its international obligations to provide evidence and cooperate in the ICC case against President Uhuru Kenyatta, charged with crimes against humanity in the 2007-08 post-election violence.
At the same time, it appears increasingly likely that President Uhuru’s case, scheduled to begin on October 7 at The Hague, could again be put off.
The prosecution is seeking a raft of financial, communications and other records that it says could link Kenyatta with the violence in which 1,500 people were killed and more than 500,000 displaced.
Attorney General Githu Muigai, who initially had agreed to hand over telephone numbers used by or linked with Uhuru, has changed his mind and now refuses to turn over that requested information, according to documents filed with the court.
The deal to hand over the call data records — complete with financial transactions made through M-Pesa — was sealed after a two-day consultation in London between ICC Prosecutor Fatou Bensouda and AG Muigai.
“The parties agreed on the implementation of three of the eight items on the revised (ICC) request, that is, provision of bank, telephone and motor vehicle records,” the AG has said, describing the London meeting on May 20-21.
However, in a later communication, Githu insisted that the request could not be implemented because “Kenya did not have in place a regime for registration of mobile phone service subscribers” at the height of the post-election violence.
Bensouda is seeking Uhuru’s financial records to prove that he bankrolled the 2007-08 bloodshed.
The Government’s Chief Legal Advisor revealed, however, that it has now provided the ICC with information about the President’s bank accounts, as well as bank statements.
He also said that he has gave Bensouda records of motor vehicles registered to the President, covering a three-month period surrounding the post-election violence.
The Government has also sent the Prosecution records relating to Uhuru’s income tax returns for December 2007, as well as January and February 2008.
But Bensouda, who seeks wide-ranging financial records to rejuvenate her case, is dissatisfied with the information, even as Uhuru’s trial date approaches.
She wants an extensive list of documents, including real estate and other property belonging to the President, either directly or through third parties, and transferred between June 1, 2007, and December 15, 2010.
Bensouda, the former Gambian Attorney General and Justice Minister, also wants records relating to companies, businesses, partnerships and trusts in which Uhuru has an ownership interest, directly or indirectly.
Three weeks ago, the ICC Judges asked the Kenyan Government to provide the records by all means available, including compulsion.
The Chamber headed by Japanese Judge Kuniko Ozaki has threatened to refer Kenya to the Court’s 122 signatory states known as the Assembly of State Parties, if it declines to cooperate.
The Assembly of State Parties is the ICC’s legislature or “General Assembly,” charged with management and oversight, including noncompliance with Court requests.
Neither the ICC nor the Assembly of State Parties has effective enforcement powers.
This week, victims’ lawyer Fergal Gaynor implied a possible further adjournment due to the standoff but asked the Judges to to take robust action to “deal with deliberate obstruction of evidence by the Kenyan State.”
“Victims continue to support the Prosecutor’s ongoing efforts to secure cooperation from the Kenyan government in order to gain access to all relevant evidence and witnesses in Kenya, even if it results in further delay,” Gaynor said.
But Githu insists that the difficulty in complying with Bensouda’s requests, which span around three years, is that they are ambiguous.
“The Government of the Republic of Kenya submits that the scope of investigations and assistance the Prosecution requests for at this time, when the trial of the case is drawing nigh, is too broad and unspecific and has not been demonstrated to be relevant to the case,” the AG stated in his filing.
He said, for example, that Kenya does not have the mechanism of determining “corporate entities associated with Uhuru” which Bensouda is also probing.
The AG has also insisted that Bensouda has to provide land reference numbers to enable the State to carry out a search on land registered to Uhuru.
“In Kenya land is registered by reference to a land reference number specific to each land district. In the absence of a land reference number, it is almost impossible to determine the content of each land file, as the same are maintained manually,”
