ICC seeks embargo on Uhuru and Ruto assets

The International Criminal Court has formally written to the Kenya Government requesting it to stop suspects from transferring assets they own to third parties until the disposal of their cases at The Hague. (Read: Uhuru urges ICC to ignore statements)

The demand from the Office of the Registrar would effectively result in the State’s taking possession of all the assets that the ICC has tracked and identified as belonging to the six suspects in the Kenya case. The assets would then be held in trust until the court reaches a verdict.

The ICC wants the State to place caveats on all movable and immovable property the suspects possess to avoid transfers that could complicate efforts to seize it if a guilty verdict is rendered at the end of the process.

The request is understood to have caused considerable discomfort within the government with few officials being willing to act on it.

The letter was initially addressed to Internal Security minister George Saitoti. Mr Saitoti passed it on to former Attorney-General Amos Wako who in turn kept it in his pending tray until handing the matter over to the new Attorney-General Prof Githu Muigai.

Finance minister Uhuru Kenyatta, Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Public Service head Francis Muthaura, Postmaster General Hussein Ali and journalist Joshua arap Sang are facing charges that they bear the greatest responsibility for the 2008 post-election violence.

A decision whether to confirm charges for crimes against humanity against them must be made by January 19.

The Registrar’s office declined to respond to questions on the matter from the Sunday Nation.

Nor would Prof Muigai be drawn into discussing the request. “As a general principle it is our policy to cooperate with the court under the terms of the Rome Statute and the International Crimes Act which domesticated that statute,” he said. “That cooperation is offered under the framework of our own laws, and we are cooperating in many areas such as witness protection and facilitation of suspects to access information they may need to prepare their defence.”

Asked specifically about the letter touching on the assets, the AG said: “We have received several requests on the Kenya case and on cases involving other countries. These are dealt with on a case-by-case and request-by-request basis. I am not at liberty to discuss the nature of any specific request.”

The Rome Statute that created the ICC requires states to cooperate on a wide range of issues including the seizure of assets.

The provision on appropriation of assets is supposed to be activated in case the judges order that the property of those convicted should be sold to compensate victims at the end of the trial.

Article 93(1,k) says governments should help in the “identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties.”

The statute says that apart from imprisonment suspects may also be subject to fines for their crimes, and state parties must be ready to assist the court to secure the funds in case a fine is imposed.

Article 109 demands that “State Parties shall give effect to fines or forfeitures ordered by the Court… without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law …Property, or the proceeds of the sale of real property which is obtained by a State Party as a result of its enforcement of a judgment of the Court shall be transferred to the Court.”

A source in The Hague who follows the activities of the court told the Sunday Nation that it is normal procedure for the ICC to begin a process of tracking the assets of suspects under investigation to ensure that a judgment requiring forfeiture of property can be enforced.

The ICC ordered the property of Congolese warlord Jean-Pierre Bemba frozen pending the conclusion of his trial.

The source in The Hague said the proceeds of the sale of assets of convicted suspects are typically channelled either to restitution of suspects or to the Trust Fund for Victims, an independent organisation which works to aid victims of war crimes.

International Commission for Jurists-Kenya executive director George Kegoro said the logic in the demand for “preservation” of suspects’ assets was to avoid complications if the restitution stage is reached.

“The idea is that the suspects will not have access to the assets and that the assets are not allowed to dissipate. It is meant to ensure that moveables are not taken to a place where the state has no control or property transferred to third parties who are innocent and who will protest at attempts to seize property.”

Mr Kegoro said he would be surprised if the government agreed to enforce the request for caveats at this stage and said it was more likely such a demand would be taken seriously if the proceedings reach the trial stage.

According to a source who has seen the letter from the Registrar, the ICC has listed property they say the suspects own in Kenya and asked the government to confirm whether those assets belong to the suspects. They have also asked the State to “preserve” all the property listed.

Mr Kenyatta, who has interests in a variety of industries including banking, real estate, insurance and the dairy sectors tops the list in terms of the value of assets the ICC has listed.

Mr Kosgey is second on the list with property identified including vast holdings in land and tea plantations.

Mr Ruto is third with investments in insurance, land and real estate, among others. Property belonging to Mr Ali and Mr Muthaura is also listed. There are no assets identified with Mr Sang that the ICC has requested action on.

The ICC demand for seizure of assets has presented Kenyan authorities with a major challenge as the country heads into a highly charged election year.

Mr Kenyatta and Mr Ruto are contenders to succeed Mr Kibaki, while Mr Muthaura and Mr Ali have been pillars of his administration.

The government has cooperated in helping to protect witnesses and granting ICC staff diplomatic status while operating in the country.

But it has effectively stalled on a request by Chief Prosecutor Luis Moreno-Ocampo to interview provincial police chiefs in charge at the time of the violence.

The failure to gain access to them is said to have contributed to what some legal analysts say was a less than robust case presented by the prosecutor in The Hague.

The suspect’s lawyers ended their final submissions on Saturday, paving way for a 60-day period within which the judges must render a decision on one of the most high-profile cases involving Kenyans since independence.