The order to the government by the International Criminal Court (ICC) for breaching provisions of confidentiality appears to have dampened the mood within the Jubilee government.
From a buoyant President Uhuru Kenyatta and Jubilee leaders following the October 8 status conference that was celebrated as a blow to the ICC, the order landed like a sledgehammer.
President Kenyatta personally attended the status conference at which his lead defence counsel Steven Kay pushed for termination of the case.
In its October 21 order, Trial Chamber V(B) accused the government of repeatedly breaching the rules of confidentiality by leaking information to the media and making public filings that should have been confidential.
Judges Kuniko Ozaki (presiding judge), Robert Fremr and Geoffrey Henderson also accused the government of failing to redact confidential information from some of its filings.
“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.
Within the Jubilee ranks, the “surprise” order is the least they expected from the ICC at this time.
Those who spoke to the Sunday Nation expressed fear that the ICC judges could have used the order to prepare grounds for a ruling in favour of Prosecutor Fatou Bensouda’s request for indefinite adjournment of the case and faulting Kenya for non-compliance.
A day after the order was issued, Jubilee legislators addressed a news conference during which National Assembly majority leader Aden Duale condemned it as an attempt to profile the government and eventually cite Kenya for non-compliance.
“We want to tell ICC, its prosecutor and their local political collaborators in no uncertain terms that we have had enough of this travesty,” he said at the October 22 briefing.
A finding of non-compliance could see the court refer Kenya to the Assembly of State Parties that metes out punishment to members that default on their obligations under the Rome Statute.
“There is a perception that the court does not intend to terminate the case even after Prosecutor Fatou Bensouda admitted that she lacks evidence against the President. I see this order as ill-intentioned, and the ICC could be using it as a precursor to an indefinite adjournment,” Gatundu South MP Moses Kuria said.
He characterised the order as yet another continuation of the politics the ICC has been engaged in since the cases started.
“One wonders why now? And why is a request for freezing assets of the President confidential. I don’t expect anything good from this court, and this order has just confirmed that,” he said.
Law Society of Kenya council member and a supporter of the Jubilee administration Jennifer Shamalla said the order was not done in good faith.
She claimed that victims of the 2007/8 post-election violence who placed a lot of faith in the court have been let down in a big way, and the court order shows that they simply want to hold onto anything to make a statement.
“The order is to prepare the ground for sanctions. It is clear that they want to cite Kenya government for non-co-operation, and the next step is to refer the matter to the Assembly of State Parties and the United Nations Security Council to sanction Kenya,” she said.
But international law expert and lecturer at Moi University Mokaya Orina told the Sunday Nation that linking the two — impending decision and the order — was far-fetched.
According to Mr Orina, the order may have been prompted by the court’s perception that the alleged misconduct went to the heart of investigations.
“The ICC generally operates on an open door policy, but there are some instances when certain documents are held confidentially or under seal to protect witnesses as well as the integrity of the trial,” he said.
“If it is known to the accused person, he can take measures to conceal the assets that the ICC hopes to use for reparations in case of a conviction,” he added.
Similarly, lawyer Godfrey Musila said the order was issued after the court felt that the disclosures were hindering the very investigations by the prosecutor, and linking the two issues is far-fetched.
“There are rules within the Rome Statute and the rules of the court that clearly state that confidential information or documents should not be disclosed. That, in my view, is what the court was enforcing. I see nothing else to it,” he said.