Muthaura defense says ICC prosecutor has failed his oath of office

The lawyers representing Kenya’s top bureaucrat made an aggressive defense of their client telling International Criminal Court (ICC) judges that a case against him should not proceed to trial because the prosecution’s witnesses had made contradictory statements and their client had evidence to show he was not part of any conspiracy.

The defense for Kenya’s Head of Public Service and Secretary to the Cabinet, Francis Kirimi Muthaura, described as “fabrications” and “lies” statements of prosecution witnesses, in which they allege Muthaura was part of a plan to kill perceived opponents of President Mwai Kibaki in two main towns of the Rift Valley region.

On Saturday, Muthaura’s lawyers highlighted parts of the prosecution’s corroborating evidence that they said showed that it was the perceived supporters of Kibaki’s Party of National Unity (PNU), who were the main victims of killings in the towns of Nakuru and Naivasha in late January 2008.

Muthaura is one of three suspects who are the subject of pre-trial hearings at the ICC. Judges of the court’s Pre-Trial Chamber II began the sessions, called confirmation of charges hearings, on Wednesday to enable them filter the prosecution’s case against the three men. ICC Prosecutor Luis Moreno-Ocampo wants Muthaura, Deputy Prime Minister Uhuru Muigai Kenyatta, and former police boss Mohammed Hussein Ali charged with five counts of crimes against humanity for their alleged roles during the violence that followed Kenya’s disputed presidential poll in December 2007. Three other prominent Kenyan men face a separate case at the ICC for their alleged role in that violence that left more than 1,000 dead by the time it ended in February 2008.

Karim Khan, the lead lawyer in Muthaura’s defense team, noted that in the corroborating evidence that the prosecution produced such as a report of the independent but government-funded Kenya National Commission on Human Rights, his client’s name is not listed in an annex to the report that has more than 200 names of people the commission believes should be investigated for their alleged role in the post-election violence. Khan said that Muthaura was not named in minutes of a District Security Intelligence Committee meeting the prosecution used and that listed names of people suspected to be involved in the violence in Nakuru. The lawyer went on to state Muthaura was not included in a list of people on whom the United States had imposed travel bans on for their alleged roles in the violence.

“And this is not a case of weapons of mass destruction where the U.S. government have got it wrong and the Office of the Prosecutor has got it right,” Khan said. “What they required, any prudent investigator should have paused for thought: Have we got it right?”

Khan read from statements of a variety of senior government officials including Hyslop Ipu, the man who was in charge of Kibaki’s diary and running the president’s official residence, State House, where prosecution witnesses allege some meetings took place to plan the violence in Nakuru and Naivasha. Others whose statements Khan read excerpts from included government spokesman, Alfred Mutua, the head of the Presidential Press Service Isaiya Kabira, and the Director General of the National Security Intelligence Service, Michael Gichangi.

Gichangi, according to the excerpts Khan read, stated the service investigated the allegations of Muthaura’s involvement in the violence and found that there was no substance to them. Gichangi also said that the service investigated the allegations of senior government officials meeting with Mungiki and making an offer not to target Mungiki adherents for arrest because of their criminal activity in return for the group’s involvement.

“There was never a policy of the government to turn a blind eye to Mungiki activity,” Khan quotes Gichangi saying. “The service has no information about such a meeting.”

Khan said that phone logs the defense had presented to the court showed that on the day Muthaura was supposed to have called the then Police Commissioner Mohammed Hussein Ali to give orders not to interfere with Mungiki and pro-Party of National Unity youth when they attack their perceived opponents in Nakuru and Naivasha, Muthaura never called Ali.

Khan and Muthaura’s other lawyers, Essa Faal and Kennedy, said it is the defense’s view was that the prosecution wanted to go to trial irrespective of whether the evidence they found was contradictory or failed to back their theory that Muthaura was a co-perpetrator who had control over the police and ordered the force not to interfere in the violence in Nakuru and Naivasha.

“And the reason why we are in this problem is because this case has not been properly investigated. The prosecution has simply assembled a gang of thugs, selfish individuals out to make money,” said Ogeto as he used the prosecution’s corroborating evidence to show the defense’s argument that the majority of deaths that health officials in the towns recorded were of Kikuyu people, perceived supporters of Kibaki, and not the president’s perceived opponents.

The prosecutor has “failed his oath of office,” Khan said. “He’s failed his obligations.”



  1. Some one has to Answer for the crimes that were done to innocent Children and women,may they be Kikuyus,Luos or any other tribe.It is time to make even the rich to pay for crimes they commit.Kenyan jails are are populated with the poor while rich criminals go about their business Scot free…Long life Ocapo


    1. @MosesWachira So what exactly are you implying? Sending them to trial irregardless of their involvement(none or otherwise) in the matter? Does that justify charging anyone with the crimes?


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