AG said it will be against the Rome Statute to start identifying and freezing properties of the four, because they are mere suspects whose cases have not been determined/FILE
In a confidential letter addressed to ICC Prosecutor Fatou Bensouda dated January 11, Attorney General Githu Muigai said the assets of Deputy Prime Minister Uhuru Kenyatta, former Head of Civil Service Francis Muthaura, Eldoret North MP William Ruto and radio personality Joshua arap Sang would only be frozen if they were found guilty.
Muigai further argued that Article 77 (2b) of the Rome Statute stated that goods and assets could only be forfeited if it was clear that they were gained through the crimes they’re facing at the Hague-based court.
“We have previously severally informed you that this request cannot be acceded to without a court order and further that our interpretation of the law is that Article 75(4) makes it clear a request for cooperation in identifying and freezing of assets for purposes of reparations (rather than forfeiture) may only take place after a person is convicted,” Muigai said in the letter addressed to Bensouda.
He added that the Kenyan Constitution prohibits the uninformed deprivation of a person’s property noting that the government would be in violation of their rights if it freezes the properties.
Article 40 of the Constitution allows Kenyans the right to acquire and own property anywhere while at the same time prohibiting Parliament from making any legislation restricting the acquisition of property.
“Please note that Article 93 of the Rome Statute enjoins States to provide certain forms of cooperation including requests for freezing of assets in accordance with national laws,” he pointed out.
Bensouda had requested Kenyan authorities to identify and freeze the properties of the four Kenyans as their trials progress.
She had also accused the Kenyan government of refusing to cooperate in the provision of evidence sought in favour of the pending ICC trials against the four.
Muigai however rejected the claims saying there were instances where the government could not provide the information sought.
He particularly observed that the prosecutor’s request to access provincial commissioners and police chiefs could not be granted because there was a pending court case.
He added that a court order had been sought on February 1, 2011 prohibiting him from issuing summons, taking or recording any evidence from any Kenyan to take to the ICC until the case was determined.
“That order is in force until the matter is heard and determined and that is yet to occur,” he said.
Muigai also maintained that the Kenyan government could not compel former Mt Elgon MP Fred Kapondi to give audience to the Hague court.
“You will recall that the government has acceded all requests by your office regarding Honourable Kapondi. It is not in a position to compel him to speak to you,” stressed the AG.
He at the same time dismissed Bensouda’s claim that the government was making it difficult for her office to access medical reports of those affected by the post-election violence alongside interviews with medical personnel at the time.
“You are aware that currently you have an entire team in the country engaging with Kenyan authorities on this matter,” he said dismissively.
Muigai has also written to the ICC requesting for an audience to make a presentation on the possibility of changing the venue of the ICC trials to Arusha.
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