The Kenya government’s official submissions at The Hague Thursday regarding a demand for President Uhuru Kenyatta’s financial transaction records may hold the key to the closure of his case at the International Criminal Court.
On Thursday, Attorney General Githu Muigai will seek to convince the ICC bench why the Government of Kenya has declined to comply with the Prosecution request to release Uhuru’s financial records.
He is expected to argue that the Banking Act prohibits the Central Bank of Kenya from publishing information that discloses financial affairs of any person unless the consent of that person has been secured in writing.
Prof Muigai will also argue that the Prosecution request is untenable as it violates the Rome Statute, Rules of Procedure and Evidence and disregards the International Crimes Act.
“The prosecution’s request for such information in full awareness of the conditions under which it may be sought and the process preceding it and with the knowledge that this would be in breach of Article 93 of the Statute and hence illegal, is malicious and an attempt to subvert the process of justice by whatever means possible,” said the AG in an earlier submission, pointing to his line of argument tomorrow.
Prof Muigai will also dwell on the role of the President vis-a-vis other constitutional bodies concerning the issue of co-operation and also outline the doctrine of separation of powers and independence of various organs of government.
But Bensouda argues that there is no domestic law that deters the government from acting on the request.
“Despite the GoK’s suggestion that information in the records requested cannot be provided without violating the rights of the concerned persons, legal avenues do exist under Kenyan law, likely involving judicial oversight from a domestic court,” she says.
However, Bensouda has insisted that withdrawing the charges “would reward the accused, who heads a Government that has obstructed the court’s work, and who is in a position to ensure that the GoK compiles with its treaty obligations.”
“The parties, the Legal Representative for Victims and a representative of the Kenya Government, are invited to attend. The discussion will, in principle, take place in public session,” the three-judge Bench said as they scheduled tomorrow’s meeting.
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