Kenya’s Attorney General has told the International Criminal Court (ICC) he cannot provide it with the financial records of President Uhuru Muigai Kenyatta without a court order and Kenyatta’s consent.
Prosecution trial lawyer Benjamin Gumpert told Trial Chamber V(b) on Thursday that this is a new position Attorney General Githu Muigai has taken because in earlier correspondence he had said he had passed on the prosecution’s request to the responsible government offices and the information would take some time to compile.
Muigai told the court that a request from the ICC Prosecutor was not enough for the Kenyan government to give financial records of any individual to the ICC. He said that, under Kenyan law, such records could only be provided if both Trial Chamber V(b) and the High Court in Kenya gave orders to that effect because the law protected individual privacy.
Muigai explained that this is why the government had not acted on the prosecution’s request for the financial records of Kenyatta in its case against the Kenyan leader. He was speaking during a status conference Trial Chamber V(b) judges had called to seek clarifications and additional submissions on a November 29 application the prosecution had made asking the court to find that the Kenyan government had not fulfilled its obligations under the Rome Statute and cooperated with the court.
“When two lawyers disagree on how the law should be interpreted, it is not an act of non-cooperation,” Muigai told the court.
“This request was made 22 months ago,” Gumpert said. “There has not been compliance in any shape or form. The reasons that are now advanced have come very very late in the day.”
Presiding Judge Kuniko Ozaki asked Gumpert whether the prosecution could have made its application earlier.
“Looking back with hindsight, it would have been better if we had,” Gumpert said. He sought to explain that the delay in filing the application was because the Kenyan government never indicated that there was an obstacle in its correspondence on the issue.
“Its frequent response was, to use a term, the cheque is in the post,” Gumpert said.
Judge Ozaki also asked Muigai whether he had asked Kenyatta for his consent to release his financial records to the prosecution as the Attorney General had said was required under law. Muigai said he had never done so.
Judge Geoffrey Henderson asked Muigai who was ultimately responsible for ensuring the Kenyan government complied with its obligations to the ICC. The judge asked Muigai to answer the question with reference to several sub-articles of Article 132 of the Kenyan constitution that outlines the functions of the president. He referred to sub-article five that states, “The President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.”
Muigai said that the president fulfilled his duties when he appointed the relevant cabinet secretaries who are responsible for ensuring on a day to day basis that Kenya complied with its international obligations.
“The President of the Republic of Kenya is not and has never been and cannot be responsible for the compliance of the Republic of Kenya with any request,” Muigai told the court.
Muigai’s appearance in court on Thursday was the first time an Attorney General of a member state of the ICC had addressed a trial chamber.