The documents relate to a previously sealed order Pre-Trial Chamber II gave on April 5, 2011 to the Registry to send a request to the government of Kenya to assist in identifying, tracing, freezing, or seizing the assets of Kenyatta, former Public Service chief Francis Kirimi Muthaura, and former Police chief Mohammed Hussein Ali. The order now only applies to Kenyatta because pre-trial judges did not confirm charges against Ali, and in March 2013, Trial Chamber V withdrew the charges against Muthaura.
The ICC’s request in Kenyatta’s case is not unique. The court has the power to order the freezing of a defendant’s assets when conviction might include an order for reparations to be made to victims. The court made a similar request to the governments of the Democratic Republic of Congo (DRC) and Portugal, among others, in the case of former Congolese vice president Jean-Pierre Bemba (a French version of such a request is available here).
In its order on Tuesday, Trial Chamber V(b) said that “[t]he underlying rationale for issuing an order to freeze or seize assets of an accused person under seal is to ensure that steps are not taken to frustrate the implementation of the order prior to its execution.”
“However, in light of the fact that the existence of the Pre-Trial Chamber’s Order has been disclosed to the accused, the Chamber considers that its obligation in respect of the public nature of the proceedings now outweighs any remaining basis to keep the Pre-Trial Chamber’s Order and related documents confidential,” the judges concluded.
Pre-Trial Chamber II’s April 5, 2011 order was issued under seal and required the government to keep the information confidential. In Tuesday’s order, Trial Chamber V(b) said there were five occasions that edict was breached, and that four of them involved Kenya’s Attorney General Githu Muigai.
The first breach occurred on April 8, 2013, the date the government submitted a filing on the status of cooperation with the ICC. In that filing, Muigai referred to a request from the Office of the Prosecutor for assistance in identifying, tracing, and freezing property and assets of Kenyatta. In response to the government’s filing, ICC Prosecutor Fatou Bensouda asked the chamber to caution the government for referring to confidential information in a public submission. Muigai apologized for the breach in a later filing, and the chamber left it at that.
Trial Chamber V(b) said the second breach occurred when a news article included information about a request to identify or freeze the assets of Kenyatta. The chamber does not give more details of the article in question, but that article was part of the subject of the chamber’s April 7, 2014 “Order for submissions on the implementation of the request to freeze assets.”
The third breach the trial chamber referred to in Tuesday’s order was in August this year when the government included unredacted portions of a public filing that referred to Pre-Trial Chamber II’s order on the property and asset identification and freeze. The government’s August 18, 2014 submission also included an unredacted portion referring to Trial Chamber V(b)’s decision after receiving submissions it asked for on the implementation of the request to freeze assets. Both the pre-trial and trial chamber’s order and decision were confidential at the time. Since April 2013, all submissions by the government are signed by Attorney General Githu Muigai.
The fourth breach was when The Star newspaper in Kenya reported on September 11 and September 17 confidential ex-parte submissions the government made. Trial Chamber V(b) noted in a footnote of its Tuesday order that The Star of September 11 reported the government’s filing even before the chamber and prosecution were informed about it on September 12. The government’s September 10 submission was ordered public before Tuesday’s order. The chamber said it should be reclassified public on September 19.
The fifth breach occurred during the status conference on October 7 when Muigai referred in open session to the prosecutor’s confidential application to freeze the assets of Kenyatta. The chamber ordered the Registry on the same day to redact the transcript and audio visual broadcast of the day’s proceedings.
The previously confidential documents Trial Chamber V(b) ordered be made public are:
Pre-Trial Chamber II’s April 5, 2011 order;
Trial Chamber V(b)’s April 7 order for submissions on the implementation of Pre-Trial Chamber II’s April 5, 2011 order;
Trial Chamber V(b)’s decision of July 8 addressing the apparent confidentiality breach of the April 2011 order;
The Kenyan government’s August 18 submission; and
The order to redact the transcript and audio visual broadcast of the October 7 status conference.
As of October 23, four of the five documents were posted on the ICC’s website, with the exception of the July 8 decision.