June 17, 2019

ICC warns against classified data leaks in Uhuru case


Trial Chamber V (b) says it regards seriously any allegation that confidential or under-seal information has been provided or leaked to the press.

“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 judges in the case against President Kenyatta say the Kenyan government appears not to have taken necessary steps to ensure filings remain confidential where necessary.

“It is within the inherent authority of a chamber to take measures to protect the integrity of its proceedings. 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 trial chamber says the breach concerns an article on the request to freeze President Kenyatta’s assets which was published by a section of the Kenyan media.

“The chamber observed that a news article cited by the prosecution and available on the Internet contained information about a request to identify or freeze the assets of the accused, in apparent contravention of the instruction of the single judge to keep the matter confidential.”

As a result of the action, the chamber says it has found it necessary to re-classify certain documents where the basis for a classification no longer exists.

The court says 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.

“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 prosecution and the Government of Kenya (GoK) locked horns during the October 7 status conference with Attorney General Githu Muigai maintaining that GoK has cooperated with the ICC Prosecution to provide documents requested for use as evidence in the case against President Kenyatta.

But the prosecution insisted that the government has not complied in furnishing the office with the eight classifications of documents required.

Muigai complained to the court that the prosecution was requesting for ambiguous and unspecific information some of which violated Kenyan laws.

“It is true unless the prosecution is able to tell us we are interested in land reference number 100, please get us a search in that title. I have promised you, if that happens we will bring the search within 72 hours,” he said as he explained he would also furnish the court with information on vehicle ownership of President Kenyatta if he was also provided with specific number plates.

The prosecution insisted that the government had not furnished the office with the eight classifications of documents required.

Benjamin Gumpert for the prosecution told the court that GoK had provided partial information and failed to honor the specific timelines within which they had agreed to provide information.

“We don’t want to know how much tax Mr Kenyatta has paid and how that is being calculated which is the essence of the documents we have been given. We want to know things like his directorship of companies and other financial details which this form requires him to provide, it is the completed versions of this document that we want and we have not got it,” he argued.

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