Kenyan ICC Case:Frustrated Judges Order Documents on Kenyan President Asset Freeze Be Made Public

Judges of the International
Criminal Court (ICC) have
ordered the Registry to
make public five documents
relating to a court-ordered
request in April 2011 for
cooperation on the
freezing or seizure of the
property and assets
belonging to President
Uhuru Muigai Kenyatta.
Trial Chamber V(b) said it
made the order because
some details of the
confidential documents had
been made public on five
different occasions over the
past year and a half. The
chamber made its order on
Tuesday.
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.

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