THE Kenya government yesterday told ICC prosecutor Fatou Bensouda that it would not identify or freeze the assets of the four Kenyans accused of crimes against humanity charges at the Hague.
Attorney General Githu Muigai categorically stated that it would not cooperate with identifying their assets.
The request was originally made by Bensouda's predecessor Luis Moreno Ocampo.
The trials of deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, former Cabinet Secretary Francis Muthaura and broadcaster Joshua Sang start on April 10 and 11.
The ICC wanted their assets to be frozen and made available to compensate victims of post election violence in case they are jailed.
In a three page letter sent to the ICC yesterday, Githu said the government believed that the request had no basis. Githu said he was reacting to Bensouda's latest brief at the ICC that the Kenyan government is frustrating her office.
"This request cannot be acceded to without a court order and further our interpretation of the law is that Article 75(4) (of the Rome Statute) makes it clear that a request for cooperation in identifying and freezing assets for purposes of reparations (rather than forfeiture) may only take place after a person is convicted," Muigai's letter stated.
The said article says that the court "may, after a person is convicted of a crime within the jurisdiction of the court" determine whether it is necessary to seek state support in identification and freezing of assets of its nationals.
In the letter, the AG argued that Article 77 (2) provides for forfeiture of proceeds, assets and property but only after is is clear that they have been derived from the crime.
"Please note that Article 93 of the Rome Statute enjoins states to provide certain forms of cooperation including requests for freezing of assets in accordance with national laws. Accordingly Article 40 of the Kenyan constitution prohibits the arbitrary deprivation of a person's property," the AG said in his letter.
The AG wondered why Bensouda told the judges that she had been denied access to interview security officers in Kenya. He said the government had informed the prosecutor that a court order had prevented the interviews.
On Bensouda's request to interview Mount Elgon MP Fred Kapondi, the AG said, "You will recall that the government has acceded to all requests by your office regarding Hon Kapondi. The government of Kenya is not in a position to compel Hon Kapondi to speak to you."
Githu asked Bensouda to confirm the accuracy of the media reports because government has since Wednesday been unable to access the filing on the ICC website.
Meanwhile the government has written to the ICC president requesting to make a presentation on the defence request to move the trial of the four Kenyans from the Hague to Arusha.