NAIROBI, Kenya, Jan 31 – Kenya’s Attorney General is expected in The Hague in two weeks time to respond to a request by ICC Prosecutor Fatou Bensouda to have all witnesses who have declined to testify in the case against Deputy President William Ruto and former Kass FM presenter Joshua arap Sang summoned.
Githu Muigai is expected to travel to the International Criminal Court on Valentine’s Day after being directed to do so by the court.
While the prosecution wants the witnesses subpoenaed, the defence team argues that the motion contradicts both the Rome Statute and the Kenyan Constitution.
The Attorney General will be required to clarify the principles of Kenyan law while at the same time giving an update on the current status of cooperation between Kenya and the Prosecutor’s requests.
The Office of the Prosecutor has been expressing concern with the rate at which witnesses have dropped out of the case. At times the court has had to adjourn proceedings due to lack of witnesses.
On January 30, Senior Prosecution Attorney Anton Steynberg said that the Prosecution had not been able to clarify some of the things that the 10th witness had said.
Trial Chamber V (a) Presiding Judge Chile Eboe-Osuji came to their defence noting that the prosecution had indicated that they were being frustrated by the Kenyan government in their quest for information.
“The Prosecution has complained repeatedly, and he (Steynberg) has also said it now, that it looks like the defence in this case has enjoyed more latitude investigating this case than they have done,” he said on Thursday.
The ICC had formally asked Kenya to respond to Bensouda’s claims of non-cooperation by January 8 but the AG had said that the information sought cannot be granted without a court order.
In May last year, Muigai hit out at the Prosecutor accusing her of not following proper procedures in her request. He at the time revealed that Kenya had granted 35 out of 37 of her requests but would not give in to the remaining two because they required a Court order.
And then in December last year, Kenya again through the AG declared that it would not furnish Bensouda with the private financial details of the three ICC accused without a court order and their individual consent.
Apart from the financial dealings of Ruto and Sang, Bensouda also wants to be furnished with the same information on President Uhuru Kenyatta.
“The Prosecution in paragraph 9 of the requests letter sought the assistance of the government of Kenya in accessing bank account and financial transaction information relating to accused persons held by the Central Bank of Kenya,” explained Muigai at the time.
Bensouda had also sought for details of the accused persons regarding their dealings at the Capital Markets Authority (CMA) as well as information from the Kenya Civil Aviation Authority.
But Muigai said court orders with compelling reasons why, must first be given because the Kenyan Constitution protects the right to privacy and confidentiality.
Bensouda also wants the matter of non cooperation forwarded to the Assembly of States Parties.