Saturday, July 5, 2014
PHOTO | AFP ICC prosecutor
Fatou Bensouda (left) with Phakiso Mochochoko, the Head of Jurisdiction
Complementarity and Cooperation Division. A status conference on the
charges facing President Uhuru Kenyatta will be held on Wednesday in The
Hague.
AFP
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.
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