Complex task for judges at President Uhuru Kenyatta’s status conference

What you need to know:

  • The judges will consider whether there is any evidence of interference with the prosecutor’s investigations, and what, if yes, needs to be done.
  • The President on Friday requested to be allowed to skip the status conference on October 8.

The International Criminal Court judges in the case against President Uhuru Kenyatta will be grappling with complex issues at the upcoming status conferences which could determine the future of the case.

Attorney-General Githu Muigai will also be in The Hague on October 7 for the first day of the status conference “to discuss the status of cooperation between the prosecution and the Kenyan Government”.

The decision on President Kenyatta’s request notwithstanding, Judges Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson will consider whether there is any evidence of interference with the prosecutor’s investigations, and what, if yes, needs to be done.

The President on Friday requested to be allowed to skip the status conference on October 8 meant to deliberate on the cooperation issues that Prosecutor Fatou Bensouda has raised.

President Kenyatta also asked that the status conference be postponed if the judges deem it necessary that he has to be present.

Even then, he wants to be allowed to attend by video link to allow him “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the court.”

The prosecution and the Legal Representative for Victims Fergal Gaynor have accused the government of failing in its obligations under the Rome Statute to hand over President Kenyatta’s financial and property records.

Ms Bensouda, in her observations of September 5, informed the trial judges that the requested records have not been provided to the fullest extent.

For instance, the government has not provided the company and land registry records at all.

Similarly, the prosecution said President Kenyatta’s and his associates’ records of vehicle registration, bank, foreign exchange, telephone and tax returns so far provided were not the ones requested or were just a portion of what she was looking for.

GOVERNMENT INACTION

“The prosecution notes with regret that the full and effective compliance required of the Government of Kenya by the Chamber has not materialised to date,” Ms Bensouda said in a confidential ex-parte document that has since been reclassified as public.

Mr Gaynor added that the alleged government’s inaction speaks for itself. 

“The victims … understand that the Government of Kenya continues to withhold access to critically important documentary evidence and to vital witnesses. If the evidence requested were harmless or exculpatory, it would have been provided to the court years ago,” said Mr Gaynor.

Mr Ndung’u Wainaina of the International Centre of Policy and Conflict says that comments of the former International Criminal Court prosecutor Louis Moreno Ocampo that he will make Kenya an example to the rest of the world were done in the context that Kenya was going to fully cooperate with the court.

“He also hoped that the mid-level perpetrators would be prosecuted in a local tribunal. That cooperation, unfortunately, has not happened,” said Mr Wainaina.

On the other hand, Prof Muigai has told the trial chamber judges that the prosecution’s request for the records lacks specificity, necessity and relevance.

“The Government of the Republic of Kenya, using its best endeavours, has provided the fullest possible responses to the questions raised by the prosecution,” Mr Muigai said in an August 29 update to the Trial Chamber.