The government of Kenya and the International Criminal Court (ICC) prosecution have disagreed on the scope and dates of documents that the prosecution has requested in the trial of President Uhuru Muigai Kenyatta.
Trial lawyer Benjamin Gumpert informed the court on Wednesday that Kenya had provided it with documents in five out of the eight categories of records it had requested from the government. Attorney General Githu Muigai told the court that in some cases the government was unable to provide the prosecution with the documents it had asked for because the prosecution had failed to identify which companies or third parties it wanted documents of.
Gumpert and Muigai made these submissions during a status conference called by Trial Chamber V(b). The purpose of the status conference was to provide the chamber with an update on the progress of an order it had given to the prosecution and the Kenyan government to ensure outstanding requests for documents are acted on. Trial Chamber V(b) made the order in March after the prosecution asked the court to report Kenya to the ICC’s membership for not cooperating with it by failing to comply with prosecution requests for information.
As part of that order, the prosecution sent the Kenyan government a revised request on April 8, 2014. In the revised request, the prosecution asked for eight categories of documents. Those categories are: company records; land ownership and transfers; tax returns; vehicle registration; bank records; foreign exchange records; telephone records; and intelligence records.
In February, Gumpert had argued that the documents could either bolster the prosecution’s case against Kenyatta or diminish it, so it was important the prosecution receive them to make such an assessment. Kenyatta is facing five counts of crimes against humanity for his alleged role in the violence that followed the December 2007 presidential election in Kenya. His trial is scheduled for October.
On Wednesday, Gumpert told the court the prosecution had received information of the vehicles registered to Kenyatta, summaries of Kenyatta’s tax returns between 1992 and 2012, and his bank statements covering the period December 2007 and February 2008. He also said the prosecution received a letter from the Lands Cabinet Secretary Charity Ngilu stating that her officers had searched land records and did not find any title registered to Kenyatta. Gumpert further said the prosecution received a letter from the National Intelligence Service stating that Kenyatta was not “a target” between December 2007 and February 2008, so there was no information on him in their records covering that period.
Gumpert informed the court the Kenyan government did not provide any information about companies Kenyatta had shares in or served as an officer in. He also said the prosecution did not receive any foreign exchange transactions records or telephone records. Gumpert informed the court that part of the prosecution’s revised request related to companies and associates of Kenyatta, and the government had not provided any documents on them.
He further explained that the prosecution had asked for land ownership and transfers records of companies and associates of Kenyatta. He elaborated that this applied to those companies and individuals’ tax returns, vehicle registration, bank records, and foreign exchange transactions records. He said the request also covered intelligence records on associates of Kenyatta.
Muigai informed the court that where the information concerned Kenyatta and it was within the power of the government to get it, the government had complied. He gave the example of the Lands Cabinet Secretary’s letter. He said though the lands registration records are in shambles and the ministry is undergoing changes, the Lands Cabinet Secretary had still been able to provide information in relation to property registered in Kenyatta’s name.
Muigai further explained that the companies’ registry in Kenya was archaic before 2009 and without names to work with or registration numbers, it was impossible to provide the prosecution with the information it had requested. Gumpert countered that such information could be found in Kenyatta’s actual income tax returns, if he received dividends from companies he owned, and this could be the route to get the names of companies he owned. Muigai responded by saying the income tax returns were in the custody of an autonomous body, the Kenya Revenue Authority, which could not compelled on a simple government directive to produce such returns.
Muigai also informed the court that the prosecution’s revised request was in parts not specific nor was it clear whether the information it was seeking was relevant to its case. He said because of this the government was unable to fully answer the request.
One issue that seemed to be in contention was the prosecution’s request for documents covering the period June 2007 to December 2010. In a joint submission filed on Tuesday by the Kenyan government and the prosecution, the government considered the period as “unreasonably long” and believed that the period covering the charges against Kenyatta is all that is needed. On Wednesday, Gumpert elaborated that in the case of bank records, it was important for the prosecution to compare the records covering the post-election violence period with other times in order to determine whether there were any unusual transactions. Kenyatta’s lawyer, Steven Kay, argued on Wednesday that the bank records they had provided showed that there had not been any withdrawals amounting to the millions that Kenyatta is alleged to have paid out in cash to finance the violence he is charged with committing.
In Tuesday’s joint submission, the government committed to provide the prosecution with supplementary information it had requested by August 15. The government, however, added a caveat that the information requested should meet the criteria of relevance and specificity. The government also committed to arrange a meeting between bank officials and the prosecution so that the officials can show and explain the checks, transfer instructions, and other documents referred to in Kenyatta’s bank records already provided to the prosecution. The joint submission was filed on the order of the trial chamber.
The government and the prosecution met the judges of Trial Chamber V(b) earlier in the day Wednesday to brief them in detail about the progress they had made since the judges’ March decision. That meeting was closed to the public as well as lawyers for Kenyatta and the victims.
In the afternoon, all parties were called in for the status conference, which lasted only two hours but became so heated that Presiding Judge Kuniko Ozaki had to caution all concerned to be careful with how they phrase their submissions. Judge Ozaki began the public proceedings by asking Gumpert to go through the eight categories of documents one by one and then asking Muigai to respond to Gumpert’s summary of what the prosecution had received. Kay made observations in each case and the victims’ lawyer, Fergal Gaynor, also made some observations.
After the categories were concluded, Judge Ozaki invited further submissions or observations. Kay argued that the revised request to the government is designed to shift the blame to the government for the weak case the prosecution has.
“What I am concerned with is that we have been going through this process when we have reached a stage of there being no evidence and it seems the court is unwilling to grasp this issue and dismiss this case,” Kay said.
In his observations, Gaynor referred to an ongoing corruption case that recently involved Switzerland asking for and receiving information from the government of Kenya without any delay because Kenyatta ordered it so.
“The entire episode undermines the Attorney General’s argument of the distance of Kenyatta in the ICC process. It shows where there is political will, evidence can be very swiftly identified and provided,” Gaynor said.
At the end of the conference Judge Ozaki ordered both the government and prosecution to prepare written submissions on the issue of specificity and relevance of documents. She asked the prosecution to file their submission by close of business on Friday. The government’s deadline is next Wednesday. She also said the government and prosecution should continue consulting and negotiating on the revised request as they make the written submissions.