ICC judges get tough on Uhuru Kenyatta documents

International Criminal Court judges have directed the prosecution to use compulsory means to access President Uhuru Kenyatta’s financial records if Kenya refuses to cooperate.

In a ruling on July 29, the judges also unanimously endorsed the prosecution’s revised request which Attorney-General Githu Muigai contested during a status conference on July 9.

Prof Muigai argued at the conference that the prosecution’s request was not specific.

Prosecutor Fatou Bensouda received the bare minimum of the items she requested from the Kenyan authorities, with Prof Muigai citing legal and technical hurdles.

The AG said the government would “continue cooperating within the limitations placed by the law of Kenya and within the limitations placed by the administrative, managerial and other issues that affect this.”

Ms Bensouda was only able to obtain details of four vehicles Mr Kenyatta owned or regularly used between November 1, 2007 and April 1, 2008. These were obtained with his consent.

A letter by Lands Cabinet Secretary Charity Ngilu that was read in the Hague court said: “Doing the best with the resources and time available to us, we have not located any land, title or property registered under the name of Uhuru Muigai Kenyatta.”

But Prof Muigai seems to have lost the argument as Trial Chamber V (B) argued that the prosecution’s request was within the provisions of the Rome Statute.

The judges further said voluntary compliance, while welcome, was not satisfactory and other measures, including compulsory acquisition of the records, should be used to obtain them.

“The chamber also notes that the execution of cooperation provisions in Part 9 of the Statute is not conditioned on an accused’s consent. Moreover, Article 88 of the Statute obligates State Parties to ‘ensure that there are procedures available under their national law for all forms of cooperation’.”

CRIMES AGAINST HUMANITY

The decision goes further to explain the compulsory measures.

“Therefore, the chamber considers that additional steps, pursuant to ordinary domestic investigative channels — utilising compulsory measures where appropriate — ought to be undertaken in parallel and in a timely manner.”

President Kenyatta’s crimes against humanity trial is tentatively set for October 7.

Ahead of the start of the trial, the prosecution wants information on Mr Kenyatta’s assets, phone details, M-Pesa transactions and tax payments, foreign exchange transactions and companies or businesses he owned or had interests in between June 1, 2007 and December 15, 2010.