NAIROBI, Kenya, Apr 21 – A five-judge appellate court is set to hear a case in which the wife of Rwandan fugitive Felicien Kabuga is appealing against a freeze order on assets that she co-owns with her husband.
Court of Appeal judges Riaga Omollo, Erastus Githinji and Alnashir Visram said on Wednesday that the circumstances surrounding the case are complicated and ought to be heard by a five-judge bench.
The judges referred the case file to Chief Justice Evan Gicheru to constitute the bench to hear the matter on a priority basis.
The judges reached the decision after the State through Director of Public Prosecutions Keriako Tobiko and Kenneth Ogeto representing Josephine Mukazitoni agreed that issues raised in the application should be handled by a bench of five.
“The circumstances surrounding the appeal are serious and complicated. We find that the matter should be heard by a bench proposed by the parties . We direct that listing be done on a priority basis,\’\’ said Justice Omollo.
Key issues that the parties want the Appeals Court to determine is the nature, character and legal effect (if any) of the resolution of the United Nations Security Council (UNSC) made under the United Nations Charter.
They also want the highest court in Kenya to make a finding whether such resolutions have a binding force under Customary International law.
The court, they further say, should determine whether the UNSC resolutions requiring Kenya to co-operate with the International Criminal Tribunal for Rwanda (ICTR) in the tracing and freezing of assets and property of Mr Kabuga in Kenya, impose upon Kenyan authorities an obligation to co-operate and if so, the obligation is enforceable by Kenyan courts under the Kenyan domestic law.
Ms Mukazitoni is appealing against the decision of High Court judge Muga Apondi on May 5, 2008 who issued an order freezing Mr Kabuga\’s assets in Nairobi yet Kenyan courts do not have authority to do so.
The judge granted the orders following an application by the State.
While freezing the assets , justice Apondi said that being a UN member, Kenya was obliged to comply with a request from the ICTR to help trace the Rwandan fugitive.
Ms Mukazitoni wants the freeze on property she co-owns with the husband lifted, saying Kenya had no legal right to seek a block on the family\’s assets.
A team of investigators tracing the fugitive discovered that Mr Kabuga was receiving Sh290,000 every three months from the property and suspected that the money was assisting the fugitive to evade arrest.
The appellant claims justice Apondi had no jurisdiction to entertain the application and contravened section 75(1) of the Constitution of Kenya.
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