Attorney General Githu Muigai explains why President Uhuru Kenyatta’s assets cannot be revealed

By Wahome Thuku

Kenya: Attorney General Githu Muigai Thursday dismissed claims that the Kenya Government has refused to co-operate with the prosecution in providing critical evidence, particularly in the case against President Uhuru Kenyatta.

Prof Muigai gave lengthy submissions during the status conference at the International Criminal Court on how the Government had been co-operating and why it had not provided some of the information sought by the prosecution.

He explained to the ICC judges the provisions of the Kenyan law in protecting some private information and the legal processes required in obtaining the evidence. Here are excerpts of his submissions.

JUDGE: In the written submission of the Government of Kenya you referred to the Kenyan International Crimes Act legislation passed to domesticate the Rome Statute. Please confirm whether there is the relevant national legislation through which the Prosecution request could be processed. And if so, we note that Article 2 of the ICA contains definition of ICC which includes any of the organs referred to in the Act.

AG: The ICA of the Republic of Kenya is the statute we have used to domesticate the Rome Statue (Reads title of the Act). We find absolutely no contradiction. Article 2 is making same recognition as the Rome Statute does. Who is required to cooperate with the court under the Kenyan law? One is the Attorney General and the other is minister of the Interior. The facilitation by Minister of Interior is exclusively on non-judicial processes. And that of the AG is in regard to judicial or quasi-judicial.

Whenever it said Kenya has failed to cooperate with the court, the very existence of Kenyan law is the primary evidence of the enthusiasm in which we embraced the court. I have looked at history of this court and not found occasion when AG of the country in question has come to this court in person. That, to us, is the example of co-operation.

JUDGE: About national barriers to the execution of the requests. In respect of information where it’s submitted that consent of individuals is required, has the Government of Kenya sought the consent of relevant individuals, particularly in this case of Mr Kenyatta?

AG: The answer is simply no. The Republic of Kenya is a sovereign autonomous independent State. Since Kenya became a situation country, we have interacted with the court as the sovereign State of the Republic of Kenya. You have said the Government of Kenya is not a party to the proceedings. As chief law officer of the Republic of Kenya, it was my duty to keep a clear independent distance from prosecution and defence and have a direct engagement with the court.  It’s the duty of the prosecutor to seek from the defence a concurrence at the disclosure stage of the case.

We have no access to the thousands of documents filed in this court. The Republic of Kenyan doesn’t know where witnesses are, who they are, who has agreed to testify and has no way of knowing. Both former and current prosecutor have carried out lamentation about obstruction.  I am guilty of not protecting witnesses I don’t know.

There is another misapprehension of the law that if the prosecutor wishes for anything to be done within the Republic of Kenya, it will be done irrespective of Kenyan’s own understanding of its obligations under the Rome Statute. That is not true. The Government of the Republic of Kenya doesn’t take legal advice from the prosecution on its obligations under the treaty.

JUDGE:  You said you need consent of the accused. I asked whether you asked the consent from Mr Kenyatta. You did not seek consent because you are prohibited by the Kenyan law or you are not obligated by the statute?

AG: It’s neither my duty under the Rome Statute nor Kenyan law to seek such consent. It’s in an adversarial system. It’s a matter between prosecutor and defence whether they will consent to production of any. If the Republic of Kenya were to descend to the arena of this conflict and begin to make demands of the accused person, our position as independent party would be irredeemably compromised. The duty is for the prosecutor, not my duty.

Co-operation with the ICC is subject to Kenya’s domestic law. The law doesn’t say we can’t give bank or financial statement. It says we can give financial statements subject to consent or obtaining court order.

JUDGE: Forget about this case. If you have a domestic criminal case and accused and it’s concluded some important information could be found within his possession, how do you proceed.

AG: Under our domestic law, whenever we investigate serious crimes like terrorism and want access to telephone records or other protected information, we obtain a court order. It’s impossible that a prosecutor may walk to a bank and say give me banking records of Mr Y. Not only would they have a constitutional violation suit but also a civil suit.

JUDGE: For judicial request you need a court order and non-judicial request you don’t need. In your interpretation of the Rome Statute, some are judicial request. There is a dispute between the Government and Prosecution’s view in that request.

AG: It’s true Article 93 contains both judicial and non-judicial requests. But it enumerates judicial requests, eg the taking of legal action within the State party and invoking of domestic law. There are many records that do not compromise eg ownership of motor vehicles; you don’t need a court order.

The prosecution misdirected itself in believing that all these processes could be treated as similar.

International judicial best practices are where the judicial chamber and the prosecutions are completely at arm’s length. Any other perception that the judicial chamber and the prosecutor are one organ would serious do violence to our sense of justice and fair play. We resubmit that the prosecutor is not the court. The prosecutor is an organ of the court for functionality only.

On claims by the lawyer for victims that co-operation with the ICC had never been discussed by the Cabinet under the Kenyatta regime, the AG said thus:

“I don’t know his sources of information and whether he is privy to the Cabinet papers or minutes. The position in Kenya is unique. There has not been and there is unlikely to be any reason for this case to be discussed as a Cabinet matter because it’s being handled by independent office holders that can’t be directed by Cabinet and do not require the direction of Cabinet.

I can tell you for sure that if a proper application for an order had been made, we would have asked to be enjoined to guide the court. It’s not a process that can be assumed will take a week or two weeks or six weeks or a year, it would be an indefinite process because of the independence of the institutions I have talked about.

I want to suggest with respect that when you have looked at all the evidence on record and considered all the submissions we have made, you will find there isn’t  in the history of this court any situation country that has ever done what Kenya has done. We take pride in that because it’s our constitutional obligation.

Two successful governments of the Republic of Kenya have been asked by the National Assembly in an overwhelming assembly, not once but twice, to discontinue co-operation with the ICC. It’s a matter of public record. The Government has continued despite those concurring resolutions to cooperate with the ICC and that is why I am here.

I don’t think that is what the prosecutor suggests is the experience you have had in a number of countries. Officers of this court have been arrested and held incommunicado, in several situation countries upon arrival at the airport. In Kenya, each time the prosecutor has wanted to come he has received State security including paratroopers to escort him throughout the country. Is that a country to be reprimanded, to be rebuked or is it a country to be recognised as a model of how this court should work with situation countries? I leave it to your good judgment.