Prosecution Says Consultations on Kenyatta Records are Deadlocked; Attorney General Disagrees

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.

29 Comments

  1. Icc please stop frustrating kenyans since one of your own never did his investigation as requested. Please leave this cases to kenya. We elected the people whom we have 100% confident with that is our dear loving president and his deputy to lead our beloved independent country of kenya. Let them work for the people who elected them in good faith. With that Africa will have faith with you. Otherwise you may make the court e relevant to the whole of Africans. Please think of this. …

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    1. A mother supports his son – even after he is convicted and sentenced to death.
      instead, let us campaign for the ICC to have a “public hanging until dead” as an option in sentencing ..

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  2. Am afraid to say that the prosecution doesn’t have much evidence in this case.I Personally think the accusations of consultations on kenyatta records being in a state of deadlock is as a result of lack of ample and sufficient evidence.

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  3. Ooh please ICC give Kenyans the justice they have missed for so long.It is obvious the government is hiding something but we strongly believe ICC has the intelligence and expertise to unearth them.We as Kenyans have a strong instinct on the key people who unleashed terror on our beloved ones,and just like the tragedy of Macbeth their guilt is obvious,its written on their face,they panic loudly and their bloody hands are visible.The President and his Deputy should should take this matter personally as he aver during the election eve interview without dragging impeccable Kenyans in it and of cause he should stop acting in a way that suggests they deserve sympathy from Kenyans.I believe if really they are innocent then the truth,real truth,nothing but the truth will be unraveled.

    In the past regimes impunity has been practiced at will with passion and the responsible leaders go free.Such leaders were the God fathers of the precedence that followed the inhumane violent ever witnessed in Kenya.Our courts proved inept to handle this matter even though the public has no faith in them.The same people;the President and his Deputy were at the fore front demanding the case to be presided over by the ICC and their humble maiden request “Lets not be vague lets go to the Hague” were answered.May Justice prevail!

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    1. No one should talk as if he or she is a judge. God is the judge. He will never let mammoth of people suffer because of one person. That’s why we have Uhuru as the intended President and Ruto his deputy. Never the less God never makes mistakes n that’s why the cases are almost done. God chooses Kings n Queens to lead His people. Watch your mouths before you are stricken by Him(God).

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    2. True, ICC is almost through with sacrificial lambs showing no sign of guilt so far, now focus should turn speedily on top shots of warring parties in the 2007/2008 PEV.

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  4. congratulations to the icc judges n i do honour you as my LORDs. U indeed took a gud stand of denying the arttoney gener the chance of being a friend of de court because sincerely when he was given dat same opportunity in ma REPUBLIC, he -vely influenced our supreme court during de ruling on de presidential pettion. I have no trust on him too.

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    1. The problem we have is that unless things go our way we are forever dissartified. Don’t drag the Kenyan Supreme Court experience to the ICC. During the presidential petition, we witnessed tbe sharpest minds in law defending their stand on both sides, the AG requesting to be a friend of the court added the flavour to the already heated urgument. He only urgued his side of the case with facts that were undisputable.

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  5. may God grant you with wisdom like that he gave king solomon our dear lovely president to overcome all the icc judges andproof innocent.”God bless Kenya abudantly”

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  6. the situation may not seem liking from where the ICC stands but honestly speaking…that beautiful city has become a prostitute and the beauty it beheld are now the flowers of a grave

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  7. Kenya is well known for her corruptions.. thats why it will be difficult for the victims of 2007/2008 post elections violence, if the current sitting president himself is a corrupt leader,how can I.C.C co-operate with kenya as a country?? To me Uhuru should be jailed..no matter what!!

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    1. Just to remind you. The president is not in the ICC court because of corruption.

      Your last comment does not merit any reaction though.

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  8. Leave ICC alone. We Kenyans do not need political Court. Leave Kenya n Kenyans please. We need our Uhuru n Ruto. Leave us!

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  9. Hold your verdicts in praise of your criminal suspect’s purported innocence. I doubt that your views will influence the ICC. After all it is not political – so you say.

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    1. You are as guilty of prejudging as the party you are advising.
      The suspect could as well be innocent for all indications are that there is no sufficient evidence for the case to continue, even as we write…

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  10. Uhuru you proved to the world as you are really the son of a Hero (Mzee Jomo Kenyatta). ICC is neo-colonial court that target African leaders. But as they said “if you know the truth, the truth shall set you free” and indeed Uhuru you will be free. We African are behind you to the last bellowing of bull. Long live Africa! Long Live our leaders.
    Apari. Juba South Sudan.

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  11. Since you seem to have a ” mountain” of evidence how did you miss in the list of witnesses? Unfortunately much of what we know is what we heard but not what we saw. Though We heard and saw on TV things like ” no raila no peace” from demonstrators in kibera and kisumu, I have no recollection that Raila ever stopped them, “other things were said and captured by media from Naivasha “we the residents of Naivasha have decided to defend ourselves against attacks on our people in the Rift Valley” If this clip is played again we shall be suprised it was a young woman who said it. What I hear needs sufficient evidence to be truth otherwise it remains just a rumour. I remember seeing Mr. Uhuru not yet president then addressing a crowd in Naivasha and beseeching them to stop the violence if my memory is clear he was booed the residents wanted nothing of that. To the victims including my grandmother who lost everything in the PEV thank God she escaped with her life, its too bad that Ocampo didnt gather water prove evidence, only what he heard other people are saying.

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  12. The action of the GoK is suspect. At the background, something is not right. Attheend of the day, an international criminal court is nota Kenyan court. Justice will be delivered. Someone must pay the price of the 1300 lives lost. All eyes set to the ICC……. Kenya case is unique in the universe in its own way, the case that will do or destroy the trust in the ICC

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    1. I will believe you after the ICC cases currently running are terminated and fresh audit of those who headed respective protagonist parties starts!

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  13. it is common knowledge even to imbeciles that the accused persons in this case belonged to two different political inclinations in the 2007 elections. We remember that uhuru kenyatta and PNU PARTY wanted the deputy president Ruto and ODM BIGWIGS to go to Hague to suffer the consequencies of “insigating” the PEV. PNU believed and yearned for the “brutal ICC punishment” of their opponents.That is why they spearheaded the clarion call in the then parliament “don’t be vague go to Hague”. thanks to the good work of waki commission. LET justice take its course’ let people taste a dose of the medicine they wanted others to taste’ tribal bigotry and false sense of superiority complex on other tribes will only breed future hatred and the destiny of this country is doomed if our so called “LEADERS” CONTINUE PRETENDING that they are “true friends” whereas they are being hypocritical to each other while infact they are serious tribal foes whose personal and tribal interests comes firstTHEIR tribes and followers who are semi illiterate and outright ignorant of this fact cheer them foolishly. WHO will educate them,? our future can only be in the hands of God not these leaders. God does not choose such leaders unless another evil deity somewhere controlls our destiny. KENYANS need to be chastisised by the true God Almighty,GOD OF TRUE WISDOM, love, mercy, PEACE, and forgiving creator who provides true, right leaders who dont ride on the whims of tribal inlinations and superstitious beliefs and “knowledge based on blurred and misplaced chauvinism”.

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  14. One lawyer once told me and I quote;”Cases are decided on evidence adduced.” Is this a useful guide to all of you folks out there? You may wish to discuss!!

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    1. Exactly… Cases are ddecided on evidence…and further more not asking for evidence from the accused…that is just very Funny..asking for evidence from the accused to prosecute Him/her????

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