A hearing to confirm charges against Deputy Prime Minister of Kenya, Uhuru Muigai Kenyatta, and two other Kenyan public officials commenced on Wednesday, September 21, at the International Criminal Court (ICC) in The Hague with the Court’s Chief Prosecutor Luis Moreno-Ocampo telling Pre-Trial Chamber II judges that the case against the three suspects should be committed to trial.
The Prosecutor alleges that head of the Kenyan civil service Francis K. Muthaura and Mr. Kenyatta bear responsibility as co-perpetrators for serious crimes including murder, forcible transfer, rape, persecution, and other inhumane acts committed during the post-election violence in Kenya from late December 2007 to late January 2008.
A third suspect, former Commissioner of the Kenyan police and now Chief Executive of the Postal Corperation of Kenya, Mohammed Hussein Ali is alleged to have contributed to the commission of the crimes which Mr. Muthaura and Mr. Kenyatta are alleged to bear responsibility for.
In front of a jam-packed public gallery today, defense lawyers for all three suspects had one common theme in their responses to prosecution allegations—that the Prosecutor did not do his job properly and that the wrong men were in front of the judges.
All three defense teams accused the prosecutor of not speaking to the right witnesses who could have given the correct versions of what obtained in Kenya when violence broke out after the presidential elections in December 2007. Rather, the Prosecutor, they said, had spoken only to witnesses who were desperate to extort money for their evidence and whose statements contradicted each other.
When he presented his case against the suspects in his opening statement, the Court’s Chief Prosecutor Mr. Ocampo told the judges that there are substantial grounds to believe that the suspects are individually criminally responsible for the alleged crimes. He explained that all three suspects are senior members of the Party of National Unity (PNU) in Kenya who organized revenge attacks against supporters of the opposition Orange Democratic Movement (ODM). Mr. Ocampo explained that as Kenyans prepared to vote in the December 2007 elections, members of the ODM party, believing that they would win elections against incumbent president Mwai Kibaki, drew up a plan to perpetrate violence if the elections were stolen from them and to create a voting block in the Rift Valley Province by forcibly eliminating all PNU supporters from their communities. This, Mr. Ocampo said, is what the suspects used as the basis for inciting youths and PNU supporters to launch revenge attacks against ODM supporters and protect their kinsmen from being evicted from their communities. The Mungiki group, which all parties in court called a criminal organization, was used by the three suspects to perpetrate violence, Mr. Ocampo told the judges.
At two critical meetings, Mr. Ocampo said that Mr. Muthaura and Mr. Kenyatta made statements that establish their responsibilities for the violence perpetrated by the Mungiki.
The prosecutor said that the first meeting took place on December 30, 2007 at Kenya’s presidential State House. At this meeting, the Prosecutor said that Mr. Kenyatta proposed the use of the Mungiki to fight back against attacks from ODM supporters and money was raised, in the tune of 3.3 million Kenyan Shillings to support these efforts. Mr. Muthaura, the Prosecutor said, did not say anything at this meeting.
The second meeting is alleged to have taken place with the leader of the Mungiki group on January 3, 2008 at the Nairobi Members Club. At this meeting, Mr. Muthaura is alleged to have said that they cannot sit back and allow their own people to be killed and that there was a need to revenge or retaliate against the ODM supporters. The Prosecutor said that Mr. Muthaura used his position of authority to call the Commissioner of Police, Mr. Ali, to instruct him not to interfere with the work of the Mungiki attackers.
“Our youths will be going to the Rift valley, and we do not want them to be disturbed,” Mr. Muthaura is alleged to have told Mr. Ali on the phone.
Mr. Muthaura and Mr. Kenyatta helped to provide weapons, transportation, and funds to all those who took part in the attacks against ODM supporters, the Chief Prosecutor said.
Mr. Ali on the other hand did not actively participate but made a significant contribution to the commission of the crimes, it is alleged. The Prosecutor said that as head of the Kenyan police, he knew that Mungiki attackers were wearing police uniforms while committing crimes, but he deliberately refused to stop then, thus contributing to the commission of the crimes. Based on directives from Muthaura, he also ensured that the Kenyan police gave the PNU supporters a free zone as they attacked ODM supporters.
As victims are allowed to take part at this stage of the proceedings through a common legal representative, the counsel representing 233 victims who have been granted such right of participation, Mr. Morris Anya, also made an opening statement. In his statement, Mr. Anya told the judges that while the victims were not here in person, through him, they were expressing their desires to see justice. He explained the desire of the victims to see their sufferings being recognized and for those responsible to be held accountable. Detailing the specific plights of victims, Mr. Anya informed the court that they were expecting reparations from the ICC since the Kenyan government had done little or nothing for them.
Defense counsel for the three suspects also had opportunities to make their opening statements.
In the case of the Muthaura defense, the suspect himself decided to make an unsworn statement before his counsel made his opening statement.
Mr. Muthaura took the opportunity to give the Pre-Trial Chamber details of his personal life, his years of service in Kenya, the various diplomatic positions he has held and his hate for violence.
“I am very passionate about human rights and the rule of law…I am a person of integrity…I have always talked for my country and my region…for me to be presented in this court as a monster based on information gathered from the bush makes me very sad,” Mr. Muthaura told the judges.
The suspect condemned the Chief Prosecutor for never attempting to speak with him about his investigations despite the fact that he saw him on the occasions he visited Kenya.
Mr. Muthaura called himself a “firefighter who was mistaken and arrested as an arsonist by an irresponsible policeman who came to the scene very late.”
Mr. Muthaura’s lead counsel Karim Khana QC in his opening statement accused the Chief Prosecutor of failing to do that which he was elected to do. He said Mr. Ocampo was elected to do justice as a Prosecutor but he had failed to do just that. He accused the Chief Prosecutor of failing to interview the right people during his investigations including Mr. Muthaura himself, the Kenyan president Mr. Kibaki and several other people who spent time around the suspect during the post-election violence in Kenya. He accused the Office of the Prosecutor of reducing the case to “some theatrics” or “soap opera” and urged the judges not to confirm charges against the suspect based on the evidence submitted.
Mr. Kenyatta’s defense counsel, Steven Kay QC, had a somewhat different approach. He started his opening statement by putting full responsibility for the violence in Kenya at the doorstep of current Kenyan Prime Minister and leader of the ODM party, Raila Odinga. He said that even before elections were conducted in December 2007, the ODM leadership was determined to cry that if they lost the presidential election, then it was stolen from them. Such a cry, Mr. Kay said was to be a call to arms and create violence, make the country ungovernable so that the ODM can take control of state power. He accused Mr. Odinga of making inciting statements such as saying that the ODM had contingency plans for dealing with rigging and calling for mass actions when the elections did not favour him.
“No one else was responsible for the violence except supporters of of Raila Odinga,” Mr. Kay told the court.
Mr. Kay presented Mr. Kenyatta as a man of peace who insisted on having dialogue with ODM supporters in order to bring an end to the violence in Kenya.
Mr. Kay attacked the credibility of prosecution witnesses as people whose accounts were contradictory and whose desire to extort money for their evidence had misled the Office of the Prosecutor.
Mr. Ali’s defense counsel Evans Monari presented his client as a man who “worked to protect Kenyan people and respected the rule of law.”
He explained that Mr. Ali personally directed his staff to maintain law and order during the violence in the country and though he worked under very challenging circumstances, his accomplishments were remarkable.
The police, Mr. Monari said, responded to all forms of violence irrespective of who the perpetrators and victims were.
A second counsel for Mr. Ali, Mr. Kehoe, asked the court to assess the credibility of the prosecution evidence and determine whether there were substantial grounds to commit the cases to trial. He dismissed Mr. Ocampo’s earlier statement that the credibility of the prosecution evidence or witnesses should not be assessed at this stage of the proceedings but rather should be done when the cases go to trial.
“What if the witness gives two different accounts which are false?” Mr. Kehoe asked the Court.
Mr. Kehoe explained that there is no evidence that Mr. Ali intended to contribute to an organizational policy as alleged by the prosecution. He also accused the Chief Prosecutor of doing a poor job on investigations by refusing to interview a single police officer about Mr. Ali’s alleged involvement in the commission of the crimes.
All three defense teams promised to establish during the cause of the confirmation of charges hearing that their clients had no reason to be called suspects in the proceedings before the ICC.
The case involving Mr. Muthaura, Mr. Kenyatta, and Mr. Ali is the second case before Pre-Trial Chamber II judges relating to situation inKenya. The first case involves prominent Kenyan politicians who are members of the Orange Democratic Movement party. They are Member of Parliament and former Minister of Higher Education William S. Ruto, Member of Parliament Henry Kosgey, and radio journalist Joshua Arap Sang.
The confirmation of charges hearing in the case of Muthaura et al will continue on Thursday.