By Felix Olick

Kenya: Kenya Government kept its word that it will not furnish The Hague court with records of President Uhuru’s financial transactions — insisting this will first have to be cleared by local courts.

As Attorney General fought off the only remaining issue standing between Uhuru and freedom from the grave charges, it also emerged the Prosecution is after much more disclosure of the President’s wealth than cash flow statements during the period of post-election violence.

The AG, Prof Githu Muigai, raised the government’s argument. The AG insisted Bensouda has to formally obtain a court order from the Kenyan judiciary for the disclosure of Uhuru’s financial records which as it stands, is the only barrier standing between him and his freedom.

The professor of law will today rise in the faraway court to explain why the International Criminal Court should not expect Kenya to help handover the seven key witnesses the Prosecution said exited even after recording damning statements against Deputy President William Ruto.

Uhuru’s lawyer Stephen Kay read out the prosecutor’s request that asked Kenyan authorities to disclose “current balances on accounts” held by the accused, through third parties or their firms dating back to June 2007.

According to Muigai who is the Government chief Legal Advisor, The Banking Act, The Central Bank Act as well as the Kenya’s Constitution makes it illegal to obtain an individual’s financial records without his consent. “What the Constitution of the Republic of Kenya says as regards the protection of the citizen of the Republic of Kenya regarding disclosure of their private confidential documents is a matter to be determined by domestic law and that is beyond contestation,” he emphasised.

“Kenya has not taken that position flippantly, frivolously or to obstruct justice. Its to ensure that the Rome statute, the Constitution of Kenya and the International Crimes Act are enforced in a harmonious manner,” he added.

Muigai too suggested ICC Prosecutor Fatou Bensouda wants the President’s wealth laid bare. “What is it that the prosecution wanted about the financial records of Mr Kenyatta? In the document OTP requests that Kenya authorities provide full financial profiles. I have never come across that kind of language in the (Rome) Statute, of fullfinancial profiles of so and so…”

Financial records

The President’s lawyer argued the request — that is subject of dispute on financial records for January 2008 to detailed movement of funds — was an afterthought.

“We were told last week that the only remaining pebble in the prosecution’s case that needed to be looked at is the unexplained movement of large amounts of cash,” Kay countered.

Kay explained the only request by the prosecutor earlier with respect to Kenyans whose charges were confirmed by the ICC sought disclosures on land, companies and income tax returns.

It is the same application that sought full disclosures on current bank balances for the accounts from June 2007.

“The impression given that the case couldn’t fail last week because of the outstanding issue (that of financial records for the PEV period) was premised on an issue that was never raised,” Kay added.

The battle for the President’s wealth came up during the status conference at The Hague yesterday. The judges ordered it before they make a ruling on the matter that holds the key to the closure of Uhuru’s case at the ICC.

According to the prosecution, the financial records were key to a central allegation in their case that the president bankrolled the 2007-2008 violence. The prosecution wants the case against Kenyatta adjourned indefinitely while the defence is fighting to have the charges terminated.

Muigai dismissed suggestions Kenyatta’s government had obstructed the court’s work and explained the previous administration even accorded former ICC Prosecutor State security during visits to Kenya.

The AG concluded his submission by stating Kenya should not be “reprimanded” but instead should be praised as a “model” of good relations between the ICC and the country in which it has intervened.

Earlier, in a strongly-worded submission, Muigai said the ICC Prosecutor could not order Kenyan authorities to make disclosures that were in contravention of Kenyan laws including the Banking Act and Central Bank of Kenya Act.

The Prosecutor could also not purport to interpret Kenyan laws because that was the preserve of the Kenyan courts. The ICC, too, the AG added, could not interpret Kenyan law in a manner inconsistent with the way the Republic of Kenya translates it.

The AG dismissed Bensouda, as “any other lawyer” who like everybody else must comply with Kenyan domestic legislation.

“A Prosecutor is a lawyer like any other, only that she is acting on the public side of the dispute,” Muigai told the trial bench.

“The Government of the Republic of Kenya does not take legal advice from the prosecution as regards to what its obligations are under the treaty. The government of the Republic of Kenya takes legal advice from its law officers,” he said.

At the heart of the controversy is a filling by Bensouda that the Government of Kenya was not complying with its obligations under the Rome Statute, by failing to disclose the financial records of Uhuru.

Domestic law

Bensouda argues that there was no domestic law that deters the government from acting on the request and that withdrawing the charges as demanded by Uhuru, “would reward the accused, who heads the government that has obstructed the court’s work, and who is in a position to ensure that his government compiles with its treaty obligations”

The AG also faulted the prosecution for “abrogating itself” the powers of the Trial Chamber insisting that there is a difference between the prosecution as an organ of the ICC and the judicial organs of the court.

He said that even if the ICC judges were to issue an order requesting for the disclosure of Uhuru’s financial records, that would still be subject to the Kenyan courts.

He said that ICC staff are carrying out investigations in every part of Kenya. “In my own tenure as AG, I have facilitated the visit to Kenya of Madam Fatou Bensouda. I didn’t ask her for a Court order…”

“When two lawyers disagree on law, the law should be interpreted. Its not an act of non-cooperation,” he maintained.