How AG Githu frustrated ICC investigators in Uhuru case

DETAILS have emerged of how Attorney General Githu Muigai frustrated ICC investigators, leading to the court summoning President Uhuru Kenyatta to appear in person on October 8.

Confidential letters from the office of Prosecutor Fatou Bensouda to the AG which have now been forwarded to the ICC judges indicate that Githu declined to facilitate a meeting between investigators and top officials of the Cooperative Bank and the Commercial Bank of Africa.

Prosecutors believe the two banks could shed light on Uhuru’s financial transactions during the 2007-2008 post-election mayhem. “The Government of the Republic of Kenya kindly agreed to facilitate a meeting between OTP representatives and representatives of the Cooperative Bank of Kenya and Commercial Bank of Africa,” the confidential letter said.

“The requested meetings would enable OTP investigators to be guided by identified bank representatives through the bank statements that were provided to us and would allow the OTP to receive copies where necessary of underlying bank documents (cheque transfer instructions etc) that are referred to in the statement.”

According to the Prosecution, the meeting was planned to take place no later than August 8, 2014, and the failure to meet led them to request another adjournment to the October 7 trial date.

“As those dates were approaching, I inquired into the status of the matter. We received no response,” a second letter from Prosecution Director of the Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko, states.

These are part of the details Bensouda intends to use during the October 7 and 8 status conference to convince the judges that Kenya is not cooperating.

Uhuru has been ordered to attend the final status conference at The Hague, a ruling that has sparked political jitters across the Jubilee coalition.

In yet another confidential document that has now been reclassified as public, Bensouda maintained that it is curious that the entire government apparatus cannot produce a single record of Uhuru’s telephone numbers.

“The notion that the entire apparatus of the GoK cannot produce a single record of a telephone number which its current President may have been using when he was a Cabinet Minister at the relevant time is not to be taken seriously,” she states.

Earlier, it emerged that Githu had initially agreed to hand over the telephone data following a two-day consultation in London in May this year. However, in a later communication, the AG 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.

The three ICC judges, Kuniko Ozaki, Robert Fremr and Geoffrey Henderson, have threatened to refer Kenya to the Assembly of State Parties for non-compliance if the government declines to disclose the President’s financial records.

Bensouda wants an extensive list of documents spanning three years – including telephone numbers ascribed to, used by or associated with Uhuru – complete with call data records and financial transactions made through M-Pesa. But Githu insists that the difficulty in complying with Bensouda’s requests is that they are ambiguous.



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