The government has complied with an ICC directive and partially furnished Chief Prosecutor, Fatou Bensouda with records of property and financial records associated with President Uhuru Kenyatta ahead of the status conference on Wednesday.
Ms Bensouda confirmed to the Trial Chamber V (b) on June 30 that she had received some of the records she requires for the case.
“Following an agreement reached between the Office of the Prosecutor (OTP) and the Government of Kenya at a meeting in May 2014, the OTP has received a quantity of material from the GoK.
The OTP is currently analysing the said material, and assessing it for disclosure, and expects to conclude and summarise that analysis in time for the Status Conference hearing scheduled for July 9, 2014 (Wednesday),” Ms Bensouda informed the Trial Chamber on June 30.
The meeting between Attorney-General Githu Muigai and the OTP took place on May 21-22 at an undisclosed location. Ms Bensouda added: “The OTP and the GoK agreed that, following the provision of this material, they would consider further their positions with regard to the remainder of the material requested.”
The items Ms Bensouda’s office has so far received were filed with the chamber ex-parte, meaning only the judges and government authorities are allowed access to them, according to the “Prosecution update on the status of co-operation between the Office of the Prosecutor and the Government of Kenya due on 30 June”.
“The reason is that the Annex contains details of inquiries made by the OTP and of materials recently provided by the GoK,” Ms Bensouda said in the filing.
Prof Muigai is expected in The Hague on Wednesday to update the chamber on the status of cooperation with the prosecution during the status conference.
The status conference is scheduled for Wednesday “in order for the prosecution and the Kenyan government to provide an update to the chamber on the status of the execution of the Revised Request, any consultations, and any other relevant issues.”
President Kenyatta’s trial is tentatively set to begin on October 7.
Ms Bensouda wants extensive records concerning Mr Kenyatta, including his assets, phone details, M-Pesa transactions and value added tax information as she attempts to prove he financed the post-election violence that happened in 2007-2008.
The records Ms Bensouda is demanding, some of which she has now received, will determine whether she proceeds with the charges against President Kenyatta after a series of disappointments with some witnesses who have either withdrawn or have been dropped.
Among the records Ms Bensouda is demanding are information on all the companies or businesses owned by President Kenyatta between June 1, 2007 and December 15, 2010, according to a letter addressed to Interior and Coordination Cabinet Secretary Joseph ole Lenku on April 8.
The letter that was signed off by the Head of Investigations Michel De Smedt also listed details of such businesses even if ownership is through third parties such as family members, political associates or business partners.
“The OTP requests the assistance of the competent authorities of the Republic of Kenya, pursuant to Articles 93(1)(i) and 93(1)(l) of the Rome Statute, to provide the information requested hereafter and transmit the relevant documents,” the letter states.
Ms Bensouda had requested the government’s assistance in identifying and providing copies in an electronic format of “records relating to companies, businesses, partnerships or trusts in which Uhuru Kenyatta had an ownership interest, directly or indirectly, whether as a shareholder, director, officer of the company, partner, trustee, beneficiary or otherwise, between June 1, 2007 and December 15, 2010”.
The prosecution also asked Kenyan authorities to furnish it with details of all land or real property registered in President Kenyatta’s name either personally or through third parties which might have been transferred to any other person or entity between June 1, 2007 and December 15, 2010.
Other items Ms Bensouda wants are details of all the vehicles President Kenyatta owns or regularly used between November 1, 2007 and April 1, 2008 that belong to companies associated with him during that period, as well as reports, in an electronic format, on payment of Income Tax and Value Added Tax (VAT) by Mr Kenyatta and his companies between June 1, 2007 and December 15, 2010.
Ms Bensouda also asked for bank statements of current or saving accounts belonging to Mr Kenyatta “personally, or through third parties or by any corporate entities” associated with him six months before the 2007 elections and three years after the elections.
This information, the letter stated, should include all transactions Mr Kenyatta may have done at foreign exchange institutions during the period.
Furthermore, the ICC wanted details of all the people Mr Kenyatta might have sent money via M-Pesa between June 1, 2007 and December 15, 2010.
“To identify all telephone numbers ascribed to, used by, or associated with Uhuru Muigai Kenyatta and provide copies of complete call data records including calls made and received, SMS or other messages sent and received together with financial details held by the service providers between June 1, 2007 and December 15, 2010.”
Mr de Smedt also asked Mr Lenku to release any information held by security agencies and the National Intelligence Services (NIS) on activities of Mr Kenyatta or companies associated with him six months before the 2007 General Election and three years later.
Though Mr Githu had protested on April 10 that “it has become difficult” to implement the order due to the complexity of the information sought, it appears the meeting of May 21 and 22 thawed relations.
The Trial Chamber V(b) had given strict timelines for the prosecution and the government representatives to consult and update each other on the progress of implementing the request, failing which, the judges had cautioned, Kenya risked being cited for non-cooperation with the ICC.
The judges had also told the government that the failure to observe the timelines could alter the conditions under which President Kenyatta and Deputy President William Ruto will be tried during the hearing of their cases at The Hague.
At the moment, Mr Ruto is only required in The Hague for the first five days after a long recess or as the chamber may decide. The ICC had also agreed to alternate the trials of Mr Kenyatta and Mr Ruto so that they cannot be at The Hague at the same time.
This was to enable them carry on with their State functions. But with the warning by the judges on non-observance of the timelines, such conditions could change to perhaps include issuance of warrants of arrest.