Tuesday, April 5, 2011

ICC to freeze Ocampo 6 assets

International Criminal Court agents have been tracing and profiling the assets owned by the Ocampo 6 ahead of their appearance in court this week.

The agents have profiled investments valued at Sh20 billion reportedly owned by one of the suspects even as they draw up detailed lists and verify information provided by other suspects. The assets probe, which started months ago, officially started on March 8 after the pre-trial chamber judges issued summons.“We have a deadline to trace these assets and investments both in Kenya and abroad. So far the bulk of the assets we have traced belong to one suspect and his family. All this information will be handed over to the relevant arm of the court so that if the court wants these assets and bank accounts frozen, then they know where they are,” said an agents who cannot be identified because he is not authorised to speak to reporters. The ICC is believed to have hired different asset-tracing firms to keep track of the money that two of the six suspects have been moving around in their attempt to conceal the cash. Families and relatives of some of the suspects are said to have become increasingly agitated as fears grow of the possibility of ICC ordering a freeze on their assets or accounts.

Wanted by ICC are deputy Prime Minister Uhuru Kenyatta, Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, Head of Public Service Francis Muthaura, former Police Commissioner Hussein Ali and radio journalist Joshua Sang'. One of the suspects has in the past few months transferred millions in cash and assets to his lawyer who is supposed to hold them in trust. An offshore firm registered in the Cayman Islands is also reported to have taken up his shares in a well known insurance business. A second suspect has sold assets valued at Sh10 billion, including hundreds of hectares of land and a food processing business.“In one of the companies known to belong to the suspect’s family, the shareholding was transferred last week on Wednesday to one of the partners who is very close to the family,” the agent said. A number of top law firms in the city are reportedly involved in the transfers.

"WOW! I wonder if Uhuru's mum can also bless me..."
Under the Rome Statute, once a suspect has been summoned or a warrant of arrest issued, the ICC judges have powers to issue orders freezing the assets and accounts of any suspect at the request of the chief prosecutor. Article 57 (e) provides that ICC seizure of a suspect’s assets or accounts is done as a “protective” measure in case a suspect is convicted and fined and if cash is needed to compensate victims. Once the suspect is tried and convicted, the judges can issue an order for transfer of such assets into the Victims’ Trust Fund for disbursement to victims as reparations. But if the suspect is found innocent, the court must lift the freeze order. Articles 57 (e) and 58 sets out how the court can issue a warrant while Article 93 compels the government to assist the court in “the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties.

It is not immediately clear if the government has helped the ICC, but ICC representatives have met senior officers at the Attorney General's office to discuss asset tracing. In January, the ICC wrote to the Cabinet sub-committee on ICC chaired by Internal Security minister George Saitoti, requesting for support in tracing, freezing or seizure of property of the Ocampo Six when the Pre-Trial Chamber judges issue summons. In the letter, the ICC stated the procedure of tracing and freezing or seizure of proceeds, property and assets for the purpose of eventual forfeiture and compensation to the victims of the violence.
Under the International Crimes Act (2008), the government is bound to cooperate with the ICC regarding tracing and seizure of assets owned by ICC suspects. Article 106 (a) and (b) of the Act states that where the ICC requests assistance in identifying, tracing and freezing, or seizing, any property for the purpose of eventual forfeiture, the Attorney General shall only give authority for the request to proceed only if he is satisfied the request relates to an international crime and the property is or may be located in Kenya. Article 130 (1) of the provides that “any money or property, including the proceeds of sale of property, recovered as a result of the enforcement under this Part of an order of the ICC shall be transferred to the ICC”. MPs supported the passage of International Crimes Bill when it was brought to the House by Amos Wako at the end of 2008 with President Kibaki signing it into law immediately it was approved by MPs. By that time, majority of MPs were pushing for Hague trials as opposed to a local tribunal. It is this Act that effectively domesticated the Rome Statute.

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