Fatou Bensouda demands untenable, Githu Muigai tells ICC judges

International Criminal Court Prosecutor Fatou Bensouda addresses journalists at the Serena Hotel during her mission in Kenya. [PHOTO:EVANS HABIL/STANDARD]

Kenya: Just weeks before the start of the ICC trial against President Uhuru Kenyatta, Attorney General Githu Muigai has turned the tables on Prosecutor Fatou Bensouda.

Muigai has written to the court demanding that Bensouda modifies her requests to obtain various materials needed to tie the case and make it stand ahead of the October 7 trial date.

In the application made earlier this week, Muigai said the prosecution has been engaging the Kenyan Government in a “wild-goose chase” in its attempt to tie its case.

He said requests to provide intelligence reports, telephone records, foreign exchange transaction records, bank account records, motor vehicle records, income and VAT tax records, land, real property, companies and corporate entities records in respect of Uhuru is a tall order.

The AG said the requests are not specific, necessary or relevant according to the standards set by the judges earlier in the year and reminded Bensouda of trial judges concern that the case is not tight.

“The chamber showed concern that after almost five years of investigations and the case nearing trial, the prosecution had not yet presented evidence that would be able to prove its case beyond reasonable doubt,” the AG said.

Githu said Bensouda had failed the judges by refusing to comply with the requirements that the requests she makes be specific, relevant and necessary. He said out of the eight requests submitted, the government had only managed to satisfy Bensouda on two.

On request to provide her with records of companies or corporate entities which Uhuru had direct or indirect interest between 2007 and 2010, Muigai said it’s untenable and unnecessary.

“It is impractical for the prosecution to expect a company search to be done using the name of an individual,” he said.

Githu wants Bensouda to provide a list of companies and their registration numbers to enable the Government to identify them and obtain their records.

On the request to identify land and and real property registered to Uhuru or associates and which was transferred to other persons between 2007 and 2010, Muigai said the request is vague. He said Kenya needs specific land reference numbers to undertake searches.

He said Bensouda's demand to receive income and VAT tax records of corporate entities associated with him is “unreasonable, unspecific and incapable of fulfillment.” Uhuru’s individual records have however been submitted but Bensouda responded by saying what was given is not what she had sought.

“If the request had been specific and provided relevance and necessity of the information sought, the Government of Kenya would not have expended time on now what appears to have been a wild goose chase,” he said. Muigai has submitted records of  Uhuru’s vehicles at the material times. Last month, Bensouda however demanded records of vehicles belonging to Uhuru’s “corporate entities.” Muigai said this request is incapable of compliance for want of specifity.

Githu turned the heat on Bensouda on the request for Uhuru's telephone records. He told the judges although he had undertaken to provide them, he has since learned that the request was not made in good faith as both the prosecution and defence had faced off over the issue.