Prosecution and Kenyan government spar over Kenyatta records

Kenyan President Uhuru Kenyatta appears in an ICC courtroom. © APA

Kenyan President Uhuru Kenyatta appears in an ICC courtroom. © APA

The prosecution and the Kenyan government have sparred over requests to access Uhuru Kenyatta’s phone, bank and land records that the prosecution believes is vital to its case against the Kenyan president.

During a status conference on 9 July, the prosecution asserted that the Kenyan government had provided only limited cooperation with regard to requests for the Kenyan president’s financial and other records. Kenyan Attorney General Githu Muigai insisted that the government had turned over those records that it had access to.

The status conference was held in order for the Kenyan government and the Office of the Prosecutor to provide judges with updates regarding the Kenyan government’s obligation to cooperate with prosecution’s request for records related to Kenyatta.

Judges had previously adjourned the start date of the trial to 7 October to give the Kenyan government additional time to cooperate with prosecutors’ requests. Kenyatta’s records are crucial to the prosecution’s case because of the withdrawal of several key witnesses.

Eight categories of records were requested by the prosecution:

  • Company records;
  • Land ownership and transfers;
  • Tax returns;
  • Vehicle registrations;
  • Bank records;
  • Foreign exchange records;
  • Telephone records; and
  • Intelligence records

The records requested concern both Kenyatta’s personal records and records of third parties and companies with which Kenyatta might have been involved.

Prosecution claims only limited cooperation with requests
At the status conference, prosecutors reported that the Kenyan government had demonstrated limited cooperation with its requests, providing them with Kenyatta’s records relating to tax returns, bank statements and registered vehicles.

However, the prosecution received an interim answer from the government stating that due to massive restructuring of the land registry, no land registered in Kenyatta’s name could be found.

Prosecutors also received a letter from Kenya’s National Intelligence Service stating that it had no information to provide since Kenyatta was not considered a threat.

The prosecution stressed that certain personal records of Kenyatta, especially company, phone and foreign exchange records are outstanding. It also explained that the government has not provided any of the requested documents relating to third parties connected to Kenyatta.

Kenya says it’s unable to retrieve requested records
In response, Muigai stated that whatever information could be acquired, based on the information provided by the prosecution, had been communicated to them.

According to the attorney general, the government could not obtain certain records because some registries were either unorganized or did not exist during the time period requested. Regarding third party records, Muigai said that prosecutors had not provided sufficient information that would enable the government to obtain them.

The Kenyan government will reportedly provide some additional information by 15 August and arrange a meeting prosecutors and bank officials in order to discuss requests for Kenyatta’s financial records.

Defense counsel and attorney general challenge validity of evidence requests
Both Muigai and Kenyatta’s defense lead counsel, Steven Kay, submitted that the records requested failed to meet the established standard of ‘relevance, specificity and necessity’. On 29 July, however, judges found that the records requested did in fact meet that standard.

Kay also alleged that the prosecution was merely trying to shift blame for the breakdown of the case onto the Kenyan government.

Kenyatta is suspected of planning and organizing alleged crimes against humanity during violence that followed Kenya’s 2007 presidential election, which killed over 1,200 and displaced 600,000.

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