ICC Prosecutor Fatou Bensouda now wants judges in the President Uhuru Kenyatta case to declare that Kenya has refused to comply with her request to furnish the prosecution with financial details of the accused.
In her latest filing to the Trial Chamber V (b) on Monday, Bensouda claims the reluctance by the government to provide financial records of the accused may affect the case in which Mr Kenyatta is accused of financing perpetrators of the 2008 post-poll violence.
“These records are relevant to critical issues in this case, and may shed light on the scope of the accused’s conduct, including the allegation that he financed the crimes with which he is charged,” she wrote to Presiding Judge Kuniko Ozaki and colleagues Robert Fremr and Chile Eboe-Osuji.
The Prosecutor argues that her office has made “repeated” requests to the Kenyan government to produce the financial records but Kenya has either been ambiguous in its responses or simply stone-walled the process.
“For 19 months, the OTP’s repeated requests have been met with obfuscation and intransigence. The net effect of the GoK’s inaction has been to limit the body of evidence available to the Chamber, hindering its fact-finding function and ability to determine the truth.
“It has also limited the OTP’s ability to investigate all the facts in this case under Article 54(1).”
The judges are expected to issue a final decision after receiving responses from the Defence and victims’ lawyers, but Bensouda has indicated that she wants a declaration that Kenya has refused to cooperate in issuing the financial statements.
Bensouda first asked for Mr Kenyatta’s past financial records in April last year and when she came to Nairobi in October 2012, she argues that she pushed for the same before the then President Mwai Kibaki.
In one of the responses, Kenya is said to have told her that any financial records of individuals must be accompanied with a court order to “fulfill this request” but remained ambiguous on the parts that required such an order. The Prosecutor filed a complaint before the Court in May this year.
But Kenya responded that the information would take longer because it “must be collated from various sources within and outside the government” and that consent must be obtained from relevant individuals.
“The records request remains outstanding to date, and the GoK (government of Kenya) has not produced any of the information sought therein.
“In more than one-and-a-half years, the GoK’s only apparent action aimed towards furnishing the requested records has been to inform the OTP that it has forwarded the records request to relevant agencies and then, lately, assert potential privacy considerations as a reason to not execute the request.”
In her filing much of which has been redacted before it was published, the Prosecutor also wants judges to refer the matter to the Assembly of State Parties and reclassify this request.
If the judges agree, it means every detail that she has sought, but which was hidden from the public to maintain the accused confidentiality, would now come to the fore.
Bensouda charges that the Kenyan government itself made public some of the details in earlier responses and that it no longer matters in redacting those details.