Githu: ICC wants to freeze Uhuru’s assets

Prosecutor Fatou Bensouda’s request for President Uhuru Kenyatta’s property records is a ploy to “freeze and seize” his assets, according to the attorney-general.

Prof Githu Muigai accused the prosecution of using the revised request to go back to the suspended pre-trial chamber’s order for “identification; tracing and freezing or seizure” of property and assets of Francis Muthaura, Mr Kenyatta and Mohammed Hussein Ali of April 5, 2011 to pursue similar interests.

The pre-trial chamber had ordered the government then to identify the assets for eventual reparation to post-election violence victims in case of a conviction. However, the order was suspended by ‘Decision on Asset Freezing Request’ of July 8, 2014. 

“The decision demonstrates that there is no element of ‘necessity’ that can be read into the request for identification and provision of companies and corporate records in which Mr Uhuru Kenyatta has interests,” Mr Muigai told the trial chamber on August 18.

This comes as the government told the court it is unable to process a request by Prosecutor Fatou Bensouda for President Uhuru Kenyatta’s property and financial records with just over a month to the opening of his trial in The Hague.

REVISED REQUEST

The government maintains that the revised request by Ms Bensouda for the records lacks relevance, necessity and specificity.

Prof Muigai has urged the trial chamber to direct Ms Bensouda to further revise her request and state the relevance of each item to the case against President Kenyatta.

The President’s trial is set to open on October 7 for crimes against humanity, although the date is heavily dependent on the prosecution obtaining all the necessary evidence it needs to proceed.

“The Government of the Republic of Kenya respectfully requests that the chamber takes note of all the efforts of co-operation and good faith demonstrated by it; the insurmountable task the Prosecution has given to the Government of Kenya of implementing broad and ambiguous requests; and order that the Prosecution complies with the chamber’s requirements of specificity, relevance and necessity,” Prof Muigai stated in the filing.

In addition, the government informed the trial chamber that certain aspects of the prosecution’s request cannot be implemented without violating the national laws and procedures for co-operation under the Rome Statute.

As such, the AG asked that the judges direct the prosecution to revise its request.

Ms Bensouda is demanding records of companies and other corporate entities in which Mr Kenyatta had interest, land and real property in his name or in the name of his associates, income tax and value-added tax returns records and motor vehicles that were registered in his name, companies or associates.

RECORD OF BANK ACCOUNTS

The prosecution also wants records of bank accounts held by Mr Kenyatta and his associates, foreign exchange transaction records, telephone records “together with any financial details held by the service provider(s) and any financial information regarding the usage of M-Pesa mobile cash transfer system between June 1, 2007 and December 15, 2010” and security and intelligence information records from the National Intelligence Service relating to Mr Kenyatta’s activities before and after the 2007/08 post-election violence.

So far, the government has only supplied the prosecution with motor vehicle records, telephone numbers used by Mr Kenyatta during the period in question and bank records.

The rest of the items on the prosecution’s list, the government argues, are neither relevant nor necessary to the charges facing President Kenyatta of having sponsored retaliatory attacks against non-PNU supporters in the 2007/08 post-election violence. Prof Muigai also argues that Ms Bensouda should specify, by name, the companies and corporate entities about which she wants to hasten retrieval.

Prof Muigai’s submissions came as the lawyer for the victims Fergal Gaynor said he would not oppose further adjournment of the case if that would help in obtaining the necessary evidence.

“They (victims) continue to support the prosecutor’s ongoing efforts to secure co-operation from the Kenyan Government in order to gain access to all relevant evidence and witnesses in Kenya, even if that results in further delay,” he said.

Mr Gaynor also accused the government of offering limited cooperation “while deliberately obstructing evidence to vital witnesses and critically important documents.”