The International Criminal Court (ICC) has ordered the Kenyan government to provide the prosecution with eight categories of records relating to President Uhuru Muigai Kenyatta unless there is a Kenyan law stopping it from doing so.
Trial Chamber V(b) made this decision on Tuesday after Kenya’s Attorney General Githu Muigai challenged Prosecutor Fatou Bensouda’s request. Muigai’s view is the request is a “fishing expedition” because it is neither specific nor relevant nor necessary to the case against Kenyatta.
The Kenyan president faces five counts of crimes against humanity for his alleged role in the violence that followed the December 2007 presidential poll in Kenya. Kenyatta was not a candidate in that election as he was supporting the incumbent at the time, Mwai Kibaki. Kenyatta’s trial is scheduled to begin on October 7.
In their unanimous decision, Presiding Judge Kuniko Ozaki and Judges Robert Fremr and Geoffrey Henderson said Muigai was wrong to argue that the Kenyan government could not accede to the prosecution’s request because of practical and administrative obstacles. They also said the Attorney General was wrong to question the need to provide the information when Kenyatta’s trial was about to start. The judges pointed out that the original request for the information was made in April 2012 and they were aware of the trial start date.
Trial Chamber V(b) made its decision after holding a day-long status conference on July 9 to discuss progress on the prosecution’s request and its March order to both the prosecution and Kenyan government to work out how best to respond to the request. The chamber also received written submissions from both Bensouda and Muigai on the question of whether the request was specific, relevant, and necessary as required under Part 9 of the Rome Statute. Part 9 details how requests by the court or the Office of the Prosecutor for various forms of cooperation can be made to states that are members of the ICC and how the states are expected to act on such requests.
The prosecution’s request in the Kenyatta case covers eight categories, which are: company records; land ownership and transfers; tax returns; vehicle registration; bank records; foreign exchange records; telephone records; and intelligence records. The prosecution has argued that the documents could either bolster its case against Kenyatta or diminish it but it was important they receive them to make such an assessment.
In its Tuesday decision, Trial Chamber V(b) said the prosecution was justified in requesting information for the period June 1, 2007 to December 15, 2010. During the status conference the Attorney General had argued that the prosecution only needed information for period covered by the charges, which is December 1, 2007 to February 28, 2008.
“In the Chamber’s view, investigative inquiries need not be confined merely to the immediate period of the violence. Such inquiries are also appropriately conducted with respect to any period during which it is reasonably surmised, having regard in particular to the existing evidence, that related preparatory or post-violence steps may have been undertaken by an accused,” the judges wrote.
The judges observed that the request for company records could be central to the prosecution’s case.
“As indicated during the status conference, the Chamber considers that, as a matter of principle, in investigations of this kind which involve allegations of payments and financing of crimes, inquiries may legitimately be conducted with respect to corporate or other entities in which an accused has a controlling interest, either as an owner or officer,” stated Trial Chamber V(b).
“It is noted that such information is not sought primarily for its own evidentiary value but rather to facilitate the subsequent requests for transactional records, including in respect of land transfers and bank account details,” the judges went on to state.
“In the Chamber’s view, it is a reasonable investigative premise that an accused with access to substantial resources may choose to act through various intermediary entities as this would, in particular, reduce the traceability of transactions intended to further a criminal purpose,” they concluded.
The judges accepted the Attorney General’s position that the Kenyan registry of companies was paper-based before 2009, making it difficult to search ownership. The chamber did, however, make suggestions on how to get around this.
“These could, for example, include more recent corporate filings that do exist in electronic form and which list directorships (some of which, it is presumed, might also have been held prior to the establishment of the electronic registration system and therefore can give an indication as to the directorships held during the relevant time period), any declarations of interests which public office holders may be required to make and, as suggested by the Prosecution, tax returns,” noted Trial Chamber V(b).
Judges Ozaki, Fremr, and Henderson also observed that most of the records the prosecution received had been volunteered by Kenyatta. During the July 9 status conference trial lawyer Benjamin 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. Gumpert also said that last year the prosecution had received records of some mobile numbers belonging to Kenyatta when the prosecution and Kenyatta’s legal team jointly hired an expert to analysis particular mobile phone records. Muigai and Kenyatta’s lawyer acknowledged during the July 9 status conference that Kenyatta had volunteered his bank statements and phone records.
“Nonetheless, the Chamber finds it appropriate to note that, in most cases, the voluntary disclosure of certain information by the accused would not be a satisfactory alternative to obtaining complete and comprehensive information as contained in official records,” the judges noted in their decision.
“Therefore, the Chamber considers that additional steps, pursuant to ordinary domestic investigative channels – utilising compulsory measures where appropriate – ought to be undertaken in parallel and in a timely manner,” they concluded.
Tuesday’s decision is silent on whether the prosecution and the government are to report further progress on the request to the chamber. In its March decision on the matter, the chamber had ordered the prosecution and government to submit a progress report to it every two months.