Four sentences in the narrative of charges by the International Criminal Court’s prosecutor in his second Kenya case were bound to generate a lot of heat at the Office of the President. The sentences refer to activities at State House, Nairobi, and Nakuru in January 2008 that involved, the prosecutor alleges, a banned sect, Mungiki, and the planning and organization of attacks in retaliation for the killings that took place that month of perceived supporters of President Mwai Kibaki and his Party of National Unity. The Presidential Press Service has denied that any such activities took place at any State House, the name for the official residences of the Kenyan president.
But this is not the main thread of Luis Moreno Ocampo’s charges against Deputy Prime Minister Uhuru Muigai Kenyatta, Head of Public Service Francis Kirimi Muthaura and former police chief, Mohammed Hussein Ali. According to his Document Containing Charges dated August 19, Kenyatta and Muthaura held an unspecified number of meetings during which widespread and systematic attacks in Naivasha and Nakuru were planned, organized, and financed, through money given to purchase weapons and pay members of Mungiki. The retaliatory attacks targeted Luo, Luhya, and Maasai residents of those towns because they were assumed to be supporters of the Orange Democratic Movement party. Some of the senior leaders of the Orange Democratic Movement party were alleged to have planned and organized attacks earlier in January 2008 against Kikuyu, Kamba, and Kisii residents of the North Rift region because of their perceived support of the rival Party of National Unity.
The meetings took place at various venues, including State House, Nairobi, the prosecutor alleges. Ocampo alleges Kenyatta was the main link and control of Mungiki because his association with the criminal organization dates from 2000. Kenyatta gave money directly and, Muthaura through a subordinate, funded the retaliatory attacks, continues Ocampo’s document. Kenyatta also gave information on where to source other funding. And Muthaura, in his capacity as chairman of the National Security Committee, got the police not to stop vehicles carrying hundreds of Mungiki members to Nakuru and Naivasha, Ocampo alleges. The prosecutor goes further to allege that Muthaura instructed the police to coordinate with Mungiki the larger plan of eliminating or forcing out supporters of the Orange Democratic Movement from those towns.
Ali, as police chief at the time and a member of the National Security Committee, was aware of these plans and gave the orders for the police to not obstruct them, according to Ocampo’s narrative. In all, Ocampo wants five counts of crimes against humanity confirmed against Kenyatta, Muthaura and Ali. He wants Kenyatta and Muthaura charged as principal co-perpetrators. The crimes against humanity charges he has prepared against them are: murder; deportation or forcible transfer of population; rape and other forms of sexual violence; other human acts; and persecution. In Ali’s case, Ocampo proposes Ali faces the same counts but as part of a group of persons who acted with a common purpose.
When Ocampo asked for the three senior Kenyan officials to be summoned to face charges in December 2010, he had named Ali as a co-perpetrator with Kenyatta and Muthaura. He had also included charges relating to allegations of the police’s use of excessive force and rape in Kisumu and the Nairobi slum of Kibera. But the judges, in a majority decision agreeing to issue the summons, concluded that Ali cannot be considered a co-perpetrator because there were no reasonable grounds to believe he was involved in the planning of the Nakuru and Naivasha attacks. They also said that Ocampo’s proposed charges in relation to the violence in Nairobi and Kisumu did not have the requisite evidence to back them up. They also advised the prosecutor that the acts of forcible circumcision of Luo men in Nakuru and Naivasha can constitute a charge of “other forms of sexual violence,” and so they advised that such acts can be considered as other inhuman acts constituting crimes against humanity. So it seems Ocampo has since revised his charges and narrative in line with the judges’ March 2011 decision.
The prosecutor has presented a list of his evidence with this narrative, but he has asked the Pre-Trial Chamber to keep it confidential. So it is difficult to assess the strength of his evidence for the time being, until it is argued at the confirmation of charges hearings. But one can infer part of his evidence may include minutes of the National Security Committee, a body his refers to quite often. It most probably also includes witnesses at some of these meetings because it is unlikely Mungiki, as a criminal organization, keeps minutes.
The confirmation of charges hearings in the case of the Prosecutor Vs. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali are scheduled to take place between September 21 and October 11 at The Hague.