By Wahome Thuku

NAIROBI, KENYA: The Government is on the spot after International Criminal Court Prosecutor, Fatou Bensouda, asked for help to identify money, property, and other assets of four Kenyans facing trial at The Hague.

Under Kenyan law, it is Attorney General Githu Muigai, as the chief legal adviser to the Government, who must authorise State assistance in profiling what the suspects own and their bank accounts.

He will also have to give the green light for the Government to seize the properties and money and hand them over to the International Criminal Court (ICC).

Bensouda’s request is catered for under Article 93 1(k) of the Rome Statute. This section binds the Government to help the ICC Prosecutor, upon request, to identify, trace, and freeze or seize proceeds, property, and assets of the accused. Proceeds include cash earnings or profits from trade as well as income from royalties, but without infringing on the rights of third parties. 

This means if the four suspects hold any assets jointly with other people, such property would not be frozen.

In the even that any of the four are found guilty, the Court can seize their money, properties, and assets and transfer them to the Trust Fund set up to aid victims of the crimes for which they are convicted.

Under Article 86 of the same law, Kenya as a State Party to the Rome Statute that established the ICC is bound to co-operate fully with the requests by the court.

Sour relation

Eldoret North MP William Ruto and radio journalist Joshua arap Sang are joint suspects in the first case of crimes against humanity.

Deputy Prime Minister Uhuru Muigai Kenyatta, and former Head of the Civil Service Francis Karimi Muthaura are suspects in the second case.

Sources said the matter, which has featured in the agenda of virtually every meeting between the Office of the ICC Prosecutor and the Government, came up again when Ms Bensouda met with the Chief Justice, other top Government officials, and the Cabinet Sub-Committee on the ICC on Tuesday.

The profiling of the four suspects’ money, property, and other assets was on the ICC agenda as early as October 2010.  One source that asked not to be named said the Office of the President is keen to ensure this is done in accordance with Kenyan laws before April 2013, when their trials for crimes against humanity begin at The Hague.

But standing in the way is the adversarial relationship between the Government and ICC over the past three years.

Money and property

When the issue was first raised in mid-2010 with the then Attorney General Amos Wako, the Government responded coldly to the request.

Under the Kenyan law, the Judiciary is critical in helping other State authorities in identifying and securing any money, property, and other assets of suspects.

Section 106 of Kenya’s International Crimes Act 2008 provides that the the Attorney-General Githu Muigai must give authority for Bensouda’s request to proceed once he is satisfied that the request relates to an international crime under investigation by her office, or is the subject of proceedings before the ICC, and that the property concerned is or may be located in Kenya.

The law further states that the Attorney-General may then authorise the appropriate Kenyan authority to apply for one or more orders or warrants in court to, search the property, or have it monitored.

The Act provides detailed provisions on how the suspects’ property may finally be frozen, through the courts.

Bensouda, who arrived in the country on Monday, has asked the Government for the release of more specific information in her bid to tie up the finer details of the two Kenya cases before the trials begin next year.Among other information, she is said  to be seeking is the financial statements of the suspects, details of their assets, and records of the victims.

Bank accounts

Yesterday Bensouda held a lengthy early morning meeting with the Chief Justice Willy Mutunga at the Supreme Court.

And though the Judiciary was not keen to issue any formal statement on the details of the discussions, sources said Bensouda revisited the matter of profiling the suspects’ bank accounts, properties, and other assets.

Deputy Solicitor-General Muthoni Kimani, among other Government officials, also met Bensouda who also raised the matter during her meeting with the Cabinet Sub-Committee.

In 2010, former ICC Prosecutor Luis Moreno-Ocampo was already working with individuals and professional firms to identify, profile, and trace properties of those whom they were likely to indict over the chaos.

Any freezing of the same would have to be for purposes of protecting them before they are seized by the ICC and forfeited to the Trust Fund should the suspects be convicted.

The assets can be disbursed to the victims as a form of reparation, which is a key tool in the ICC process of ensuring justice for victims and their families.

Article 130 (1) of the Rome Statute provides that “any money or property, including the proceeds of sale of property, recovered as a result of the enforcement under this Part of an order of the ICC shall be transferred to the ICC”.

There are about 560 victims represented in the two Kenya cases at the ICC.

Muigai has consistently pledged to give the ICC any support it requires. If the Government fails to do so, the prosecutor can ask the ICC trial judges to intervene.

Bensouda is expected to visit some of the victims of the 2008 post-poll chaos in Nakuru to hear their accounts. She will then brief the Press on the outcome of her five-day visit before flying back to The Hague