President Uhuru Kenyatta with Deputy President William Ruto and Attorney-General Githu Muigai at a past event.
Nairobi. In a situation that
exemplifies the strained relationship between Kenya and the
International Criminal Court, the trial chamber in the Uhuru Kenyatta
case is expected to make a formal ruling following an application by the
prosecutor for a finding that Kenya has failed to cooperate with the
court in relation to the cases facing the Kenyan president and his
deputy William Ruto. Oral arguments were heard on Friday during a status
conference before the trial court convened to hear the allegations of
non-cooperation against Kenya.
Attorney-General Githu Muigai argued that
co-operation with the court is subject to Kenyan law and that the Kenya
government has no power to compel the production of financial records
for Mr Kenyatta without an order issued by a competent Kenyan court.
The AG argued that it was his duty to keep a
distance from both the defence and the prosecution in the Kenyatta case,
and that for this reason he had not discussed with the President his
position regarding the requested information.
According to Mr Muigai, it was up to the ICC to make an application before the Kenyan national courts.
But the common legal representative for victims
Fergal Gaynor strongly disagreed with the AG’s position on Kenyan law,
arguing that Mr Muigai had a duty to assist the court, which he had
neglected, and instead had chosen to defend the accused.
In the relevant filing, the prosecutor moved the
court to make a formal finding that Kenya has failed to cooperate with
the court and, therefore, refer the matter to the Assembly of States
Parties.
Under the Rome Statute, one of the fundamental
obligations of states that are parties to the ICC is to cooperate with
the court in all aspects of the trial of cases before the court.
According to the prosecutor, Kenya has failed to
comply with her April 2012 request to produce financial and other
records of Mr Kenyatta that 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.
The prosecutor alleges that for 19 months, her
“repeated requests have been met with obfuscation and intransigence” and
seeks a finding that Kenya has failed to comply with the court.
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