ICC warns over leaks in Uhuru assets order

By: WALTER MENYA

Kenya risks sanctions from the International Criminal Court after judges accused the government of leaking confidential information on an order to seize President Uhuru Kenyatta’s assets.

The three judges of the ICC Trial Chamber issued the warning Tuesday, accusing the government of breaching its code of confidentiality seven times even after it had been cautioned against the offence which could impact on the direction that Mr Kenyatta’s case will take.

The judges said the government also went against the confidentiality rule during the status conference of October 7 and 8. Mr Kenyatta personally attended the session on October 8 as a private individual after temporarily handing over power to his deputy, Mr William Ruto.

Yesterday, Judges Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson accused the government of repeatedly breaching the rules of confidentiality by leaking information to the media and making some filings public when they were meant to be confidential.

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At the centre of the warning was an order which was issued by the ICC’s Pre-Trial Chamber on April 5, 2011, which instructed the court registrar to request the Kenya government to help it to identify, trace and freeze — and seize if possible — Mr Kenyatta’s assets.

The order also affected then co-accussed Francis Muthaura (former Head of Public Service) and Hussein Ali (former Police Commissioner). The cases against both have since been dropped.

Even though the penalties for breaching the confidentiality rule attract a modest fine of just Sh1.6 million, there could be further consequences if taken as pattern of defying the ICC. The court is expected to make a critical ruling on the fate of Mr Kenyatta’s case in the next few weeks.

Rule 171 of the Rules of Procedure and Evidence allows the court to impose a maximum of €2000 (approximately Sh220,000 at current exchange rate)

INTEGRITY OF PROCEEDINGS

The judges justified the caution with the explanation that the order was meant to safeguard the integrity of the proceedings. It was issued under strict confidentiality, but the court now accuses the government of continuously by referring to it in open court filings or leaking it to the media.

“Thus, the Chamber notes with concern the Kenyan Government’s cumulative inattention to the taking of appropriate measures to ensure the confidentiality of the proceedings, including by leaving confidential information unredacted in its proposed public-redacted version, by exercising insufficient care in how this proposed version was filed, and by its reference to confidential information during a public status conference,” the order states.

The judges said the breaches continued despite the government having been recently warned of the seriousness of such a breach and despite its own assurances that it would “proceed with the appropriate and necessary caution” to avoid such occurrences happening in the future.

“Separately, the Chamber notes with concern what appears to be a pattern of information contained in confidential filings being leaked to the media, in some cases even before the filings have been notified to the Chamber, parties or participants,” the order states.

The order was filed under seal (total confidence) on the request of the then Prosecutor, Louis Moreno-Ocampo.

Under the confidentiality rules, Kenya was expected to treat the order as a secret, leaving it out in any filings to the ICC and not to refer to it in an open session of the court.

The Rome Statute and the Rules of Procedure and Evidence specifically obligates ICC judges, the prosecutor, ICC staff, witnesses and victims and all the parties involved in the case to take a solemn undertaking to respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.

“Thus, the Chamber has specifically recalled its authority to sanction breaches of its orders and of statutory obligations of confidentiality, should it be presented with evidence making it necessary to do so,” the judges said in a signed statement that was also translated into French.

Article 87 of the Rome Statute provides that requests to State Parties, like those that the court accuses the government of disclosing, must remain confidential.

“The first breach occurred on April 8, 2013, when the government referred to information in confidential filings in a public filing, for which the government apologised on May 24, 2013 for the “’inadvertent disclosure.”

The second was on April 7, 2014, when the government made reference to a news article cited by the prosecution and available on the internet that contained information about a request to identify or freeze the assets of President Kenyatta.

In its decision of July 8, 2014, the chamber addressed the breach of confidentiality based on the content of the news article.

“The Chamber observed, however, that, on this occasion, no evidence had been presented which would allow the chamber to make any findings concerning the person or persons responsible for the apparent breach,” the judges said.

A further breach occurred on July 16, this year, in the submissions by the government following the July 9 status conference. In that filing, the government is accused of directly filing a public redacted version “rather than proposing its redactions to the Chamber in a confidential filing as had been done previously.”

QUOTING FROM FILINGS

A local newspaper, The Star on September 11 and 17, reported on information contained in confidential, ex parte filings made by the government, quoting directly from those filings.

The paper quoted Attorney General Githu Muigai accusing Prosecutor Fatou Bensouda of dishonesty on the financial and property records of President Kenyatta.

The paper also quoted Prof Muigai arguing that he should not be blamed for the prosecution’s failure to get the requested records from the government.

The government is also accused of referring “to the Prosecutor’s confidential ‘application to freeze assets’ of the accused” during the recent status conference earlier this month which was open to the public.

“For the foregoing reasons, the Chamber formally cautions the Kenyan Government in respect of the matters outlined above,” the judges said.

SOURCE: DAILY NATION

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