11 July 2014

Kenya: Prosecutors Say Nairobi Still Withholding Evidence

Photo: Times of Zambia
Court gavel.

Defence team counters that requests for information are no more than "fishing expedition".

Prosecutors told judges at the International Criminal Court (ICC) this week that they were still waiting for some of the records they requested from Kenya's government so as to strengthen their case against President Uhuru Kenyatta.

The revelation by the Office of the Prosecutor (OTP) comes more than three months after judges ordered the authorities in Nairobi to cooperate with the requests for evidence.

Kenyatta is charged in The Hague with orchestrating the bloodshed which unfolded following a disputed presidential election result in December 2007. At least 1,100 people died and 650,000 others were forced from their homes in two months of violence.

Prosecutors accuse Kenyatta - who was elected president in March 2013 - of being an indirect co-perpetrator responsible for five counts of crimes against humanity including murder, persecution, forcible population transfer and rape.

In a separate case, Kenyatta's deputy, William Ruto, and former radio journalist Joshua Arap Sang are on trial on similar charges. Their trial began in September last year.

All three deny the charges against them.

Since the OTP began investigations against Kenyatta, it has made various requests for the Kenyan authorities to provide information to help support its case. It says they have failed to cooperate.

In February, prosecutors asked judges to delay proceedings indefinitely while they looked for further evidence in order to be able to bring the case to trial. (See Prosecution Hopes of Kenyatta Trial "Less and Less Promising http://iwpr.net/report-news/prosecution-hopes-kenyatta-trial-less-and-le....)

That request followed a December 2013 submission from prosecutors asking ICC judges to issue a finding of "non-cooperation" against the Kenyan government, and report the matter to the states that have signed up to the court, which collectively form the Assembly of States Parties.

The judges stopped short of making such a finding but urged the Kenyan government to provide the requested information. They rescheduled the start date for the Kenyatta trial to October 7. (See Kenyan President's Trial Adjourned Until October http://iwpr.net/report-news/kenyan-presidents-trial-adjourned-until-october.)

The OTP is seeking evidence that Kenyatta, who was a cabinet secretary and member of parliament in 2007-08, used his personal assets to bankroll attacks carried out during the unrest.

PROSECUTORS MAKE FRESH DEMAND FOR INFORMATION

Following the judges' order, the OTP sent a revised request to the Kenyan government on April 8 asking for eight categories of documents covering the period between June 2007 and December 2010.

These included Kenyatta's tax returns, records of his ownership of companies, land and any vehicles registered in his name or through associated companies. They also requested bank, telephone, and foreign currency exchange records, as well as intelligence data.

This week, prosecution lawyer Benjamin Gumpert told judges at a scheduled courtroom meeting that the OTP had received documents relating to five of the eight categories it requested.

But he noted that the OTP had yet to receive any records relating to companies and other corporate institutions owned or part-owned by Kenyatta in the relevant time period. Nor had it obtained telephone records or documents relating to foreign currency exchange.

According to Gumpert, the Kenyan official dealing with the request about company ownership informed OTP that in order to comply with the request, the government would need to be "provided with names or registration numbers".

"The commentary which the prosecution makes is that there is a certain peculiarity here," Gumpert said, noting that the OTP had asked the Kenyan government "to conduct a search based on Kenyatta's name to determine which companies he has significant a shareholding in".

Meanwhile, Kenya's cabinet secretary for land, housing and urban development, Charity Ngilu, has informed the OTP that her ministry cannot not trace any record of Kenyatta owning land in the country. She also told OTP that over a million files had been lost in a reorganisation at the ministry.

Kenya's attorney general, Githu Muigai, representing the government in court, reaffirmed that there were no extant records indicating that Kenyatta owned any land.

Referring to records of registered companies, Muigai pointed out that the government had previously made it clear to the prosecution that prior to 2009, such records were maintained manually, and that this made it "virtually impossible to conduct a search that is not restricted in the manner that we have stated to them".

With Kenyatta's authorisation, the government has given the OTP his bank statements from November 2007 to February 2008. But prosecutors said the OTP needed records for the broader time-frame that had been requested, in order to make comparisons between financial activity during the violence and at other times.

Kenyatta's lawyer, who was also in court, opposed the OTP's requests for further information.

Steven Kay accused the OTP of conducting a "fishing expedition" in its search for evidence.

He argued that prosecutors had requested evidence that lay outside the scope of the pre-trial brief which detailed the alleged criminal conduct of his client. (The brief is not in the public domain.) He questioned the relevance of company records and institutions to the alleged crimes.

"As far as I am aware, there is no single witness saying that a company did this or a company did that, or anyone transferred shares or paid dividends within the ranks of Uhuru Kenyatta," Kay told judges. "I put it sarcastically because our patience is really at an end."

He said there was "nothing exceptional" in the records of Kenyatta's bank accounts that would fit with what the OTP was alleging.

Kay pointed to allegations in the pre-trial brief that Kenyatta paid "millions of shillings" in cash to fund the violence.

"There is not a single payment that fits that description," Kay said. "So now what do we have? We have another request [from OTP]. Something needs to be done [to build a case], and this goes on and on and on."

He said the OTP was attempting to demonstrate "non-cooperation" on the part of the Kenyan government, "when in fact it is the case of the prosecution that needs to have relevance and the need for this material to be relevant".

KENYAN VICTIMS "UNIMPRESSED"

This argument was rejected by the lawyer who represents victims of the Kenyan violence in the case, Fergal Gaynor. He said relevance was not a matter that should be considered when the OTP is seeking information from the authorities in good faith.

"At the risk of sounding pessimistic, everything that we have heard today from the government of Kenya is indicative of the fact that we have had no real change in what is essentially a policy of obstruction of access to relevant documents and relevant witnesses," Gaynor said.

He also suggested that the OTP had been "very lax" in waiting until December 2013 to file a request for a finding of non-cooperation. He said victims in the case had been "deeply unimpressed" with the OTP's handling of the case.

Gaynor pointed to what he described as multiple indications that the Kenyan government had not cooperated with the ICC. He said judges should take this into account if they made any finding on the matter in the future and reported it to the ASP.

"Let's not forget that the government has opposed the compulsory testimony of witnesses in Kenya, it has opposed rules changes intended to facilitate the admission of evidence of witnesses who have been bribed... it has promoted the view that the ICC is racist and neo-colonialist," Gaynor said.

He informed judges that it Kenyatta recently took just four days to hand over evidence to prosecutors in Switzerland who are investigating financial crimes in what is known as the Anglo Leasing affair. He said this contradicted Muigai's argument that the president had no say in what evidence was made available to the ICC.

"The entire episode undermines the attorney general's arguments concerning the distance of the president from the issue of ICC cooperation," Gaynor told judges. "It shows that Mr Kenyatta ultimately controls the provision of evidence to prosecutors outside Kenya, [and] it shows that the attorney general will hand over evidence when Mr Kenyatta instructs him to do so."

At the end of the hearing, presiding judge Kuniko Ozaki ordered both the OTP and the Kenyan government to file submissions on the scope and relevance of the documents still being sought by prosecutors.

JJ Wangui is an IWPR reporter in Nairobi.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.

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