Kenya Attorney General Says No to Uhuru, Ruto Asset Freeze

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Kenya Attorney General Githu Muigai [File/Photo]

Kenya has declined to freeze the assets of four Kenyans facing crimes against humanity at The Hague. And in a letter to the International Criminal Court dated yesterday, Attorney General Githu Muigai made a final push to have the cases heard in Kenya or in the Tanzanian city of Arusha.

In a second letter to ICC prosecutor Fatou Bensouda, Prof Muigai said the identification and freezing of assets of the suspects could only be carried out in the event of a conviction.

Enforce request

He said the Government could not enforce a request such as the one made by Bensouda without a court order.

As Muigai was addressing the letters in Nairobi, two of the ICC suspects – Uhuru Kenyatta and William Ruto – were dismissing comments made by Bensouda as calculated to erode their support in their bid to become President and Deputy President in the March 4 elections.

The two, who are at the head of a three-party coalition named Jubilee, called on their supporters to ignore such reports.

 Uhuru and Ruto are the only politicians facing charges at The Hague over the murderous violence that engulfed Kenya after a disputed presidential vote in 2007. Also facing charges is Francis Muthaura, who was at the time Head of Public Service and Secretary to the Cabinet. The fourth is radio journalist Joshua arap Sang.

 In a terse letter addressed to Bensouda and marked “very urgent”, Muigai insisted that Article 40 of the Kenyan Constitution prohibits arbitrary deprivation of a person’s property.

“We have previously and severally informed you that this request (to freeze assets) cannot be acceded to without a court order,” maintained the AG.

“And further that our interpretation of the law is that Article 75 (4) makes it clear a request for co-operation in identifying and freezing of assets for purposes of reparations (rather than forfeiture) may only take place after a person is convicted,” said Muigai.

Citing Article 77 (2) b of the Rome Statute, Muigai insisted that the Court may order forfeiture of proceeds, assets and property of the suspects, but only if it is clear that they have been derived from the crime and that such a penalty is contingent upon conviction.

On Wednesday when she revealed the evidence and list of witnesses to the defence, Bensouda expressed frustration that she could not access certain financial records believed to be information on the assets and wealth records of the four ICC suspects.

Critical evidence

Bensouda also revealed that certain individuals, including Government officials and employees, who hold critical evidence, are inaccessible. She also conceded that she has not been given critical documents such as medical reports, which contain post-mortem details of victims killed at the height of the 2007/2008 post-election violence.

“Documents, including medical, financial, and official records have repeatedly been requested from the Kenya Government, but as of this date, they have not been provided,” she noted.

Muigai’s letter to the ICC president, copied to Internal Security Minister Katoo ole Metito, requested that the Government be allowed make a representation when the issue of changing the seat of where the Kenya cases are heard comes up.

In November, last year, Uhuru and Muthaura lost a bid seeking to have their cases moved from the International Criminal Court in The Hague to Kenya or Arusha.

However, the trial chamber led by Presiding Judge Kuniko Ozaki rejected the application and instead directed them to make the application to the ICC presidency.

“The Government of Kenya’s attention has been drawn to a request filed by one of the parties in the Kenya cases requesting change of venue for trial to Arusha Tanzania. Given the importance of this matter, the Government request that at the appropriate time it be invited to make representation on the issue,” the letter seen by The Standard On Saturday read in part. Reacting to Bensouda’s charges against the Government, Muigai explained that ICC officials had not been barred from interviewing PCs, former PCs, and police chiefs who manned hotspots at the height of the violence.

He noted that it is the officers who raised objections and obtained a court order that is still in force barring the Government from taking any evidence from them to be used by the ICC.

The Government Chief Legal Advisor also insisted that Kenya was not in a position to compel Mt Elgon MP Fred Kapondi to speak to the prosecution.

Denied access

He also denied reports that the Government had denied Bensouda access to medical reports of victims of the 2007/2008 violence, saying that the ICC have an entire team in the country engaging with the Kenyan health authorities on the matter.  The ICC cases were also top of the agenda at Kericho Green Stadium, where Uhuru and Ruto addressed their supporters yesterday.

“I am calling on our supporters and all Kenyans not to be intimidated by ICC reports. They are meant to scare you and try to change your perceptions,” said Kenyatta.

 Ruto, who is Kenyatta’s running mate, said they came together to show the whole world that Kikuyus and Kalenjins were not enemies. - The Standard

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