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ICC piles pressure on Kenya to release Uhuru records

By Alphonce Shiundu | July 30th 2014
ICC Prosecutor Fatou Bensouda.

International Criminal Court judges stepped up the pressure on the Jubilee administration to make available all the crucial information, including financial records the prosecution hopes would buttress the case against President Uhuru Kenyatta.

The judges dismissed the Government's plea, through the Attorney General Githu Muigai, that they could not help Prosecutor Fatou Bensouda in her job.

"The Chamber considers that requesting the information from official sources, maintained by relevant government agencies, constitutes an appropriate means of seeking to obtain such information," the judges noted, as they pointed out that the prosecution was specific in the time period, the individual involved, and the nature of the information that it seeks.

In the ruling Tuesday, ICC Judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson, also gave Bensouda's office express permission to "pursue all possible means" to get the telephone records linked to President Kenyatta. The records date from June 1, 2007 to December 15, 2010.

The judges said the prosecution was right in specifying the time because it was the only way to establish a "pattern of activity", so that the "unusual communications or transactions" pop out.

"In the Chamber's view, investigative inquiries need not be confined merely to the immediate period of the violence," the judges noted in their signed ruling.

The ruling means Prof Muigai and the Interior Cabinet Secretary Joseph ole Lenku, under whose docket the work of co-operation with ICC falls, would have to work harder to get the bank, land transfer, vehicle, company and even telephone records linked to Uhuru.

The State would also have to surrender intelligence reports and any other police report regarding the President's activities in the same period.

Kenyan officials would also have to manually comb through the paper records at many of the Government offices, especially those at the Ministry of Lands, and those at the Registrar of Companies, to get information on companies that President Kenyatta owns directly or indirectly.

"It is noted that such information is not normally sought primarily for its own evidentiary value but rather to facilitate the subsequent requests for transactional records, including in respect of land transfers and bank account details. In the chambers view, it is a reasonable investigative premise that an accused with access to substantial resources may choose to act through various intermediary entities as this would in particular reduce the traceability of transactions intended to further a criminal purpose," the judges noted.

The judges said they understood the "practical difficulties" in getting the information, but even so, "practical difficulties that may arise in carrying out a request do not invalidate it".

"The Chamber notes that the Prosecution has indicated a willingness to provide additional resources, if required, to assist in conducting manual searches," the judges said.

They noted that the difficulties "might be mitigated or overcome" if the Prosecution and the Government worked in good faith.

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