Kenya has two weeks to report to the ICC Trial Chamber the steps it has taken in submitting President Kenyatta‘s financial records.
Failure to comply would incur the risk of the country being cited for non-cooperation with the ICC.
This could, in turn, influence the conditions under which President Kenyatta and Deputy President William Ruto will be tried during the hearing of their cases at The Hague.
ICC prosecutor Fatou Bensouda has already written to the government seeking information on Mr Kenyatta’s bank accounts, assets, ownership of companies and financial transactions in the lead-up to the 2007 elections and early 2008.
The letter, which will not be made public at any time by the ICC, was delivered in strict confidence following a ruling by the Trial Chamber more than two weeks ago requiring the government to submit the information.
In their ruling, Trial Chamber Judges Kuniko Ozaki (Presiding), Robert Fremr and Geoffrey Henderson did not leave any room for the government to wiggle out of the order to submit the information.
Kenya stands to be referred to the Assembly of State Parties if it fails to comply.
Wednesday, Ms Bensouda’s office confirmed it had written to the government seeking information about the President’s wealth.
“The Office of the Prosecutor can confirm that we are in contact with the Government of Kenya pursuant to Trial Chamber V(B)’s 31 March 2014 decision on the Prosecution’s application of non-compliance pursuant to Article 87(7),” the statement from the office said.
Attorney General Githu Muigai could not be reached by telephone to confirm receipt of the letter.
Following the letter, the government and Ms Bensouda are required to file an update with the Trial Chamber at the end of this month on the progress in the submission of the information sought.
“However, in the event of genuine and irreconcilable differences between the Prosecution and the Kenyan Government, or any matter otherwise requiring resolution, the Chamber stresses that it is to be promptly seized of the matter at issue,” the court said.
Sources confirmed the letter had been received, triggering a complex process at the end of which records regarding President Kenyatta’s wealth should be handed to the ICC.
The letter, sources said, was a revised request, a summation of previous requests from Ms Bensouda’s office, which Kenya declined to honour, citing local legislation in respect to individual rights and confidentiality of bank account holders.
“The Kenyan Government is directed to promptly review the Revised Request and notify the Prosecution, within two weeks of having received the Revised Request, of any problems which may impede or prevent its execution,” the judges stated in their ruling.
Should any legal or administrative obstacles arise, they directed the government to hold consultations with Ms Bensouda to find a lawful way through which the information requested can be submitted.
“Such consultations should include Kenyan Government identifying and, following consultation with Prosecution, pursuing alternative procedures available under national law pursuant to which the requested information may be provided.
“In respect of all other requested items, the Kenyan Government should immediately take steps to comply… and furnish the information,” they said and set the trial date for October 7.
Ms Bensouda hopes that the evidence from the records will help prove her case that Mr Kenyatta raised funds to finance the retaliatory attacks by the outlawed sect, Mungiki, on ODM supporters in January 2008.