Uhuru’s fate at ICC now linked to his cash records

By FELIX OLICK

Nairobi, Kenya: The Kenya government’s official submissions at The Hague Thursday regarding a demand for President Uhuru Kenyatta’s financial transaction records may hold the key to the closure of his case at the International Criminal Court.

On Thursday, Attorney General Githu Muigai will seek to convince the ICC bench why the Government of Kenya has declined to comply with the Prosecution request to release Uhuru’s financial records.

He is expected to argue that the Banking Act prohibits the Central Bank of Kenya from publishing information that discloses financial affairs of any person unless the consent of that person has been secured in writing.

Prof Muigai will also argue that the Prosecution request is untenable as it violates the Rome Statute, Rules of Procedure and Evidence and disregards the International Crimes Act.

“The prosecution’s request for such information in full awareness of the conditions under which it may be sought and the process preceding it and with the knowledge that this would be in breach of Article 93 of the Statute and hence illegal, is malicious and an attempt to subvert the process of justice by whatever means possible,” said the AG in an earlier submission, pointing to his line of argument tomorrow.

Prof Muigai will also dwell on the role of the President vis-a-vis other constitutional bodies concerning the issue of co-operation and also outline the doctrine of separation of powers and independence of various organs of government.

But Bensouda argues that there is no domestic law that deters the government from acting on the request. “Despite the GoK’s suggestion that information in the records requested cannot be provided without violating the rights of the concerned persons, legal avenues do exist under Kenyan law, likely involving judicial oversight from a domestic court,” she says.

However, Bensouda has insisted that withdrawing the charges “would reward the accused, who heads a Government that has obstructed the court’s work, and who is in a position to ensure that the GoK compiles with its treaty obligations.” 

“The parties, the Legal Representative for Victims and a representative of the Kenya Government, are invited to attend. The discussion will, in principle, take place in public session,” the three-judge Bench said as they scheduled tomorrow’s meeting.

Decide fate

After taking oral submission from the parties and participants, the three ICC judges — Kuniko Ozaki, Robert Fremr and Geoffrey Henderson — will then decide on the fate of President Uhuru Kenyatta’s case.

The arguments in court are precipitated by the admission by ICC prosecutors that efforts at seeking additional evidence against the President have yielded nothing, and even suggested access to Uhuru’s financial records may not be sufficient.

But to keep the case alive, the prosecution wants the ICC judges to find the Kenya government guilty of obstructing its work by failing to turn over Uhuru’s financial transaction records.

ICC Prosecutor Fatou Bensouda says Uhuru’s financial transactions, during the 2007-2008 election-related violence, are central to a key allegation that he bankrolled the bloodshed.

But pressed by the judges, Prosecution Counsel Benjamin Gumbert admitted that even the President’s financial records might be insufficient to meet the high evidentiary standard required for trial.

“We do not know what is contained within those financial records. We do not know whether it might yield evidence which might enable us to say our case is strong enough to bring before the court,” Gumbert told the court.

Last week, Gumbert admitted they had exhausted all investigative avenues and come to the conclusion that “the only stones left unturned in Uhuru’s case are now pebbles”, and that there is possibility the financial records might not yield much.

The prosecutors are nonetheless clutching to this last straw to push the case to trial as the Uhuru defence seeks termination of the case.

They want the case adjourned indefinitely until the Government submits the financial records.

It is in light of this that the Kenya government’s justification for not turning over the financial records is critical to the decision by the judges.

On Friday Prof Muigai has another date with The Hague judges regarding the case against deputy President William Ruto and radio journalist Joshua arap Sang.

This follows a request by Bensouda to the Judges to ask the Kenya government to compel some seven witnesses to testify.

Yesterday, Ruto’s lead Counsel Karim Khan said they don’t want witnesses to withdraw but should instead come forward and say the truth.

The British lawyer said that witnesses who want to pull out of the process should confess before the ICC judges instead of doing so through swearing affidavits before Kenyan lawyers.

“We don’t want witnesses to withdraw. They should come forward and tell the truth. Those who want to pull out of the process should not do so through affidavits to lawyers here in Kenya but to Judges at the ICC,” he stated.

Khan is in Kenya together with Shyamala Alegendra who is the head of investigations in the Ruto case.

Khan castigated the prosecution for what he termed as flawed investigations that will not unmask perpetrators of the bloodshed that almost brought Kenya to its knees.

“What the Office of the Prosecutor did was flawed, faulty and negligent investigations,” Khan told The Standard in an interview yesterday. “We as the defence sympathise with Victims because they won’t know the truth. It’s only the innocent people that have been charged,” Khan said.