The prosecution told the International Criminal Court (ICC) that they have reached a deadlock in their consultations with the government of Kenya on how to obtain records that they first requested two and a half years ago.
Kenya’s Attorney General, Githu Muigai, however, disagreed that the consultations were deadlocked and gave Trial Chamber V(b) an assurance that his office would be able to provide any records requested within 72 hours as long as he was given “actionable information.”
Senior trial lawyer Benjamin Gumpert, leading the prosecution, and Muigai made these observations on Tuesday at a status conference the chamber called to be appraised of the progress in implementing its orders set out in a July 29 decision.
In her opening remarks, Presiding Judge Kuniko Ozaki made it clear the chamber was going to be strict about who spoke at the status conference and about lawyers limiting their responses to the questions the judges asked. In previous status conferences, the chamber has allowed lawyers for the prosecution, defense and victims to each make submissions on an issue the judges have a question on.
“The purpose of the hearing today is for the chamber to receive specific submissions. We will be directing certain questions to certain counsel. We will not be opening the floor to everybody,” Judge Ozaki said.
All three judges of Trial Chamber V(b) asked questions of the lawyers, particularly Gumpert and Muigai. They sought clarifications on separate submissions the prosecution and the government of Kenya had filed last month giving the chamber an update on the progress they had made in their consultations. The judges also asked about whether there had been any developments since those submissions, which were filed in the first half of September.
When lawyers began making observations or submissions beyond what a judge had asked, Judge Ozaki would cut them short and remind them to stick to what was asked. At one point she cut off Muigai for similar reasons, saying, “Mr. Attorney General, this is a status conference for us to gather information, and that is it.”
The records, which were the subject of Tuesday’s status conference, relate to President Uhuru Muigai Kenyatta’s financial and telephone records and assets, such as vehicles, land, and shareholdings in companies. The prosecution first asked for them in April 2012. The reason the prosecution has asked for them is because one of the key allegations against Kenyatta is that he financed and raised money for attacks that occurred in the Rift Valley towns of Nakuru and Naivasha in January 2008 after violence erupted in Kenya following the December 2007 presidential election.
During the status conference on Tuesday, Gumpert told the chamber that nine prosecution witnesses had said that the payments they received for participating in those attacks ultimately came from Kenyatta.
“It is on the basis of that evidence that the prosecution has made inquiries,” he said in response to a question from Judge Ozaki.
When he was asked about the prosecution’s request for the tax returns of Kenyatta, Muigai said the Kenya Revenue Authority was only able to provide tax declaration information because that is the only documentation they retain from individual taxpayers.
“What I understand that they do, Madam President, is that a tax return form is filled. They extract information that they consider to be relevant. They retain that information which they have extracted in a format that they use for their other purposes but they do not retain the forms,” Muigai told the chamber.
Tax returns are among the eight categories of records the prosecution have asked for. The prosecution and the chamber have suggested Kenyatta’s tax returns are one way the government can determine companies he may own. They made this suggestion because Muigai has argued that without a registration number or company name, it would be difficult for him to ask the companies’ registry to search for companies Kenyatta may own. Muigai has explained that Kenya’s companies’ registry was paper-based before 2009 making a search without a company’s registration or name impossible. The prosecution’s request is for records between January 1, 2007 and December 15, 2010.
Judge Geoffrey Henderson asked Muigai whether there was any need to be concerned that the position Kenyatta occupied affected how the government worked with the ICC.
“An argument that says the Kenyan government isn’t working with the ICC because Mr. Kenyatta is in the Office of Head of State is fallacious,” answered Muigai. “It is totally fallacious and baseless because I personally was in contact with the prosecutor, with the registry long before we held the election that brought the current administration to office.”
At the end of the status conference, Muigai asked whether he could be allowed to take part in Wednesday’s status conference as a friend of the court or amicus curiae. Judge Ozaki told him that would not be possible because Wednesday’s hearing was already scheduled for only the lawyers for the defense, prosecution, and victims.