THE ICC judges have locked out Attorney General Githu Muigai from President Uhuru Kenyatta’s status conference today as prosecutors ask for sanctions on the Kenya Government.

The three-judge panel rejected the AG’s request to be allowed in The Hague courtroom as Uhuru faces the Chamber in person over his alleged involvement in the 2007/2008 post-election bloodshed.

Presiding Judge Kuniko Ozaki maintained today’s session will strictly involve Uhuru and his defence, the Prosecution as well as Victims’ lawyer Fergal Gaynor.

“Mr Attorney General, we have already made a decision,” the tough-talking judge said.

“Tomorrow’s status conference is only for the parties and legal representatives. No amicus.”

This now means that Muigai, who was involved in a dramatic legal duel with the Prosecution yesterday, will have to follow the proceedings from the public gallery – only peering at his boss through the soundproof, transparent, oneway glass.

The ICC prosecutors want the Kenyan Government sanctioned for failing to cooperate in the case against Kenyatta.

The dramatic legal duel took place as Uhuru arrived in The Hague and will today face the judges.

During the status conference yesterday, Prosecutor Benjamin Gumpert insisted that Kenya should be referred to the Court’s 122 signatory states – known collectively as the Assembly of State Parties – for declining to surrender crucial evidence.

Gumbert maintained that cooperation between the Prosecution and the Government had hit a dead end.

“The Kenyan Government is not going to give to us what we are asking for. That is why we are at a deadlock,” Gumpert told the judges. “We are reverting to our request for a finding of non-compliance on the part of the Kenyan Government”.

But Prof Muigai, who was at pains to explain the Government’s position, insisted that Kenya is “a sacrificial lamb”.

“We are being made sacrificial lambs about a matter that has nothing to do with the Republic,” Githu insisted. “What the prosecution has admitted to is that it never had the evidence in this case and now wants us to provide it.”

Githu maintained that Kenya is not in a position to provide additional financial records unless the Prosecution provides what he termed “actionable” requests.

“Is it your position that you cannot provide anything further?” Judge Ozaki asked.

“Yes, that is our our position,” the AG responded.

This now means that the ICC Judges are left with only two options – either to terminate the case or refer the matter to the ASP as requested by the Prosecution.

The Assembly of State Parties is the ICC’s legislature or ‘General Assembly’, charged with management and oversight, including noncompliance with Court requests. However, neither the ICC nor the ASP has effective enforcement powers.

In his submission to the Chamber, Muigai strongly denied accusations that Uhuru was obstructing access to evidence as the Kenyan head of state.

“I think I need to remind the Chamber that the cooperation of the Kenyan Government predates the election of Uhuru Kenyatta. The argument that the government is not cooperating with the ICC because Mr Kenyatta is the President is totally fallacious and baseless,” Githu insisted.

During the hearing, it emerged that the Prosecution had received telephone data suspected to be Uhuru’s which had only incoming calls but no outgoing calls.

The telephone calls made at the height of post-election violence had only five callers, with the Prosecution insisting that it is strange for the entire government apparatus to lack the information it wanted.

However, the AG said that there were no telephone numbers provided to Uhuru by the State as Deputy Prime Minister, emphasising that a specific number must be provided by government to make a search.

“Unless the Prosecution takes itself more seriously, we are put in a most embarrassing and difficult situation. There is no record of a telephone number that Mr Kenyatta was provided with as a Cabinet minister and I have no way of knowing the personal identification number of Uhuru Kenyatta until it is supplied to me,” he stated.

Githu had a difficult time explaining why he had failed to facilitate a meeting between Prosecution investigators and top officials of the Cooperative Bank and the Commercial Bank of Africa.

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


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