ICC needs court order to access Uhuru’s accounts – Muigai

February 13, 2014 3:09 pm
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Prosecuting trial attorney Benjamin Gumpert however accused the Attorney General of double speak when it came to President Kenyatta's financial records, accusing him of misleading them into believing that their request of November 2012 was being processed/FILE
Prosecuting trial attorney Benjamin Gumpert however accused the Attorney General of double speak when it came to President Kenyatta’s financial records, accusing him of misleading them into believing that their request of November 2012 was being processed/FILE
NAIROBI, Kenya, Feb 13 – Attorney General Githu Muigai on Thursday told the International Criminal Court (ICC) that only a Kenyan court can compel banks to release President Uhuru Kenyatta’s financial records.

And even then, President Kenyatta has the right to appeal such an order as his rights, as guaranteed by Kenyan law, trump whatever obligations Kenya might have with the ICC.

“If I received an order from you I would have to surrender it to the public prosecutor who would then place it before the High Court which may grant the order or grant the accused a hearing and even then President Kenyatta reserves the right of appeal,” Muigai submitted to the ICC.

He went on to explain that as he had not received such an order from Trial Chamber V(b) but merely a request from the ICC Prosecutor Fatou Bensouda, he was not obliged to pursue the matter any further beyond explaining that he was unable to furnish the financial records.

“Nothing went beyond the communication we had with the Prosecutor in November of 2012. This issue had become mute because two lawyers reading the same set of laws had come to two different interpretations of the law,” he said.

In that way, Muigai explained that the Kenyan government could not then be accused of not co-operating with the ICC.

“In the history of the ICC, I do not know of another Attorney General who has come to this court in person – not by retaining counsel – to say this is what we have done and this is why we have done it. That to us is the ultimate example of co-operation,” he underscored.

He was also categorical that President Kenyatta could not then, by extension, be accused of frustrating the prosecution’s case as the various government agencies operate independently.

“In the history of the ICC, I do not know of another Attorney General who has come to this court in person – not by retaining counsel – to say this is what we have done and this is why we have done it. That to us is the ultimate example of co-operation,” he underscored.

“At no time did I receive any direction, or suggestion or prompting as to how my intervention with the court should be,” Muigai stated.

He also took exception with the prosecution dragging the Kenyan government into the intrigues surrounding the withdrawal of its witnesses.

“The Republic of Kenya does not know the list of witnesses; it doesn’t know who they are, it doesn’t know where they are, it doesn’t know their identity, it doesn’t know who has agreed to testify or who has refused to testify and it has no way of knowing,” he told the court.

Prosecuting trial attorney Benjamin Gumpert however accused the Attorney General of double speak when it came to President Kenyatta’s financial records, accusing him of misleading them into believing that their request of November 2012 was being processed.

“He was saying, save for the freezing of certain assets, we’re on the case, we’re dealing with it. Don’t worry,” Gumpert surmised.

He also challenged the Attorney General’s assertion that his office was independent of the President as the Constitution confers on him the power to appoint and dismiss the head of the State Law Office (with the approval of Parliament).

President Kenyatta’s defence counsel Steven Kay defended Muigai, arguing that the Prosecution had not requested records on the movement of President Kenyatta’s finances around the time of the 2008 post-election violence and was using it as ploy to deflect from their lack of a case.

“It just says specify or identify bank accounts, not the records of those accounts,” he argued.

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