We complied with Bensouda request, says Attorney-General Githu Muigai

The government has supplied the International Criminal Court (ICC) with President Uhuru Kenyatta’s bank statements and now says it couldn’t have done more to comply with Prosecutor Fatou Bensouda’s request for telephone and property records as well.

Attorney-General Githu Muigai on August 29 told the court in a filing seen by the Sunday Nation that the government, “using its best endeavours,” has done its best to comply with the co-operation request.

(READ: State complies with ICC directive on Uhuru’s cash, property records)

LACK OF SPECIFICITY

The AG also maintained the government’s long-held argument that the prosecution’s request lacks specificity, relevance and necessity to be fully implemented.

(READ: Githu: ICC wants to freeze Uhuru’s assets)

“It is now clear from the foregoing that the Government of the Republic of Kenya, using its best endeavours, has provided the fullest possible responses to the further questions raised by the Prosecution in its letter of July 3, 2014, subject only to the lack of specificity, material disclosure by the Prosecution and the legal framework within which some of the information could be procured,” Mr Muigai concluded.

Prof Muigai listed the hurdles the government was facing in complying with the prosecution’s request given than it was not mandatory for telephone owners to register with network providers in 2007 as is the case today.

The filing came to light just hours after Ms Bensouda on September 5 asked the Trial Chamber to postpone the provisional trial date indefinitely from October 7.

(READ: ICC judges get tough on Uhuru documents)

In the notice, Ms Bensouda stated that the records her office has so far obtained from Kenya were but a fraction of what she had asked for, and some were irrelevant.

“The prosecution notes with regret that the full and effective compliance required of the GoK and anticipated by the Chamber has not materialised to date,” she said.

(READ: Uhuru case stalls as Bensouda runs short of evidence)

Regarding the request for company records, an internal memo from the Companies Registry stated, among other things, that the “primary data required for purposes of retrieving any details of registered companies is the name  of the company and “registration number of the company”.

“Thereby, the Companies Registrar could only provide details of a registered company by use of the name of the company or its registration number.”

The National Transport and Safety Authority also stated that it “had no mechanism in place by which it could identify any vehicle(s) regularly used by an individual or by corporate entities belonging” to or associated with any particular individual.”

Mr Muigai also transmitted to the prosecutor a similar response from the Communications Authority of Kenya, Safaricom and Airtel over Mr Kenyatta’s mobile numbers and mobile money transactions.

The mobile operators said that Kenya did not have a legal mechanism in place requiring registration of subscribers between June 1, 2007 and December 15, 2010, which is of interest to the prosecution.

In order to satisfy the prosecution’s request, the mobile operators are asking that Ms Bensouda provide them with Mobile Station International Subscriber Directory Number (MSISDN) — the unique number used for the international identification of mobile phone numbers — or exact mobile phone numbers that Mr Kenyatta used during the material time.

The National Intelligence Service (NIS) also said its predecessor, the National Security and Intelligence Service (NSIS), did not have Mr Kenyatta or any of his associates under watch at the time.

DETAILS OF PROPERTY

With regard to details of land owned by Mr Kenyatta, the ministry of Land asked Ms Bensouda for the Land Reference (LR) number; Inland Reference (IR) number or the Coast Registry (CR) number to enable a search.

Devoid of that, the ministry of Land wants the prosecutor to provide copies of the title certificate to the land or property to be searched, an identification document of the person or company seeking the search, personal identification number (PIN) issued by Kenya Revenue Authority and the registration map or deed plan of the property.

Similarly, the Central Bank of Kenya and the Kenya Revenue Authority also stated they were unable to obtain Mr Kenyatta’s foreign exchange transactions and income tax returns of his associates who are unknown.

But on Friday, the ICC prosecutor said the 73 documents submitted by the government were insufficient and as such, she requested an indefinite delay due to lack of evidence.

The trial against Mr Kenyatta was to begin on October 7.

President Kenyatta’s lawyers have until Wednesday to respond to Ms Bensouda’s submissions.