ICC WARNS KENYA ON UHURU ASSETS
In what could signify that The Hague-based court is not done with the President yet, the judges yesterday revealed that the order, which was issued confidentially, was to be executed without Uhuru’s knowledge.
The order was issued way back on April 5, 2011, when then President Mwai Kibaki and his Co-principal in the Grand Coalition administration Prime Minister Raila Odinga were still in charge. Uhuru was then one of two Deputy PMs.
The three-judge panel also read the riot act to Attorney General Githu Muigai for breach of confidentiality and took issue with the Kenyan State for what they termed “a pattern of information contained in confidential filings being leaked to the media”.
“The 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,” the judges ruled yesterday.
“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 panel declared.
In their ruling, the judges, headed by Kuniko Ozaki, presented a chronology of how Prof Muigai has consistently made reference, publicly, to the assets freeze order, including during Uhuru’s status conference on October 7, 2014.
“On the same day, the Chamber ordered the Registry to redact the transcript and audiovisual broadcast of the hearing,” the judges said.
They maintained that the pronouncement by Muigai occurred despite having been warned of the seriousness of such a breach and despite the “Kenyan Government’s assurance that it would proceed with the appropriate and necessary caution to avoid such occurrences happening in the future”.
“For the foregoing reasons, the Chamber formally cautions the Kenyan Government in respect of the matters outlined above,” they concluded.
The judges stepped up the pressure on the Jubilee administration just days before they make a landmark decision on the fate of Uhuru’s crimes against humanity charges.
The judges are expected to decide whether to terminate Kenyatta’s case, adjourn it indefinitely or refer the matter to the Assembly of States Parties for non-compliance.
The assets freeze order adds to the list of ICC decisions which Kenya has not acted on. In January 2012, Prof Muigai insisted that the government could not enforce such a request without a court order.
In a terse letter addressed to Prosecutor Fatou Bensouda and marked “very urgent”, Muigai insisted that Article 40 of the Kenyan constitution prohibits arbitrary deprivation of a person’s property.
“We have previously and severally informed you that this request [the assets freeze] cannot be acceded to without a court order,” the AG maintained.
“And further that our interpretation of the law is that Article 75 (4) makes it clear a request for co-operation in identifying and freezing of assets for purposes of reparations (rather than forfeiture) may only take place after a person is convicted,” Muigai concluded.