Defense lawyers for Kenya’s former police chief Mohammed Hussein Ali told the International Criminal Court (ICC) that the prosecution had presented “implausible” and dishonest evidence to back its charges against Ali.
The defense lawyers also said on Monday that the police did its best under extremely difficult circumstances to contain violence in Kenya’s Central Rift region in January 2008 in contrast to the prosecution’s allegation that Ali deliberately failed to stop the bloodshed in support of a criminal plan to kill a section of the population there.
Ali’s defense also called a witness to testify how the police did not discriminate in the assistance given to people in distress in Naivasha town, one of two towns where the prosecution alleges Ali ordered the police not to help non-Kikuyu residents whose lives were threatened. The defense witness, Peter Otieno, is a trade unionist and a member of the Luo ethnic group.
Otieno, however, got into trouble with Pre-Trial Chamber II because, when prosecutor Desiree Lurf was cross-examining him, he kept looking towards the defense lawyers’ side of the court. Presiding Judge Ekaterina Trendafilova warned him twice not to do so. On the second warning, she said the court was “embarrassed” to have to warn him again.
“We are not very much pleased about this,” Trendafilova told Otieno.
ICC Prosecutor Luis Moreno-Ocampo wants Ali and two other suspects charged with five counts of crimes against humanity for their alleged roles as the key masterminds or key contributors of the violence that hit Nakuru and Naivasha towns after the disputed presidential election of December 2007. The other suspects are Head of Public Service and Secretary to the Cabinet Francis Kirimi Muthaura and Deputy Prime Minister Uhuru Muigai Kenyatta, who is also Kenya’s Finance Minister. Muthaura and Kenyatta both presented their side of events last week. The hearings are for the judges to determine whether the prosecutor has shown substantial grounds for the case to proceed to trial.
The prosecution claims Muthaura ordered Ali to provide a “free zone” to a criminal gang, the Mungiki. The prosecutor has further alleged that Kenyatta hired Mungiki to retaliate for the killings and eviction of Kikuyus in the country’s North Rift region. That violence is the subject of another case before the ICC.
Gregory Kehoe, Ali’s lead lawyer, refuted the allegation that Muthaura called Ali on January 3, 2008 to order him to direct his juniors to provide Mungiki with a “free zone” in Nakuru and Naivasha. Kehoe referred to the defense Muthaura’s team had made last week, giving the court mobile phone logs of their client to show he did not call Ali. Kehoe, however, did not say his team had provided similar logs to corroborate what Muthaura’s team had disclosed.
Kehoe said that the only prosecution witness to refer to that telephone call cannot be relied on because in a series of statements he made to the prosecution and others, his testimony changes significantly.
Kehoe also said staff at the members’ club and the upmarket hotel where the prosecution alleges planning meetings took place said that none of the individuals named were at those establishments on January 3. He also played for the court, as evidence that the police could not work with Mungiki, a documentary made by the Kenyan police highlighting past Mungiki crimes and the police’s crackdown on the gang.
Gershom Otachi, another of Ali’s lawyers, narrated the testimony of police officers in Naivasha who said they never received orders to help Mungiki. This was to illustrate that it is unlikely Ali could have issued such orders without officers on the ground knowing because of the way orders flow in the police force from the commissioner to the police officer on the street.
Otachi told the court any order from the police commissioner first goes through the police officer in charge of the province who is called the Provincial Police Officer. Then that person would give the order to the police officer in charge of the relevant division who in turn would give the order to the police officer in charge of the relevant police station.
Instead of helping the Mungiki, the police assisted many citizens in distress and put in long hours to do this. This is despite the police being limited in number, not having the required resources, and other constraints they faced, Otachi told the court.
“Kenya today would be one huge graveyard were it not for the efforts of these gallant men and women,” Otachi told the court.
Evans Monari, another of Ali’s lawyers, said the prosecution had failed to show how the police were linked to a criminal plan such as the one they allege was executed in Nakuru and Naivasha. He also said that the prosecution had failed to make a clear argument to substantiate their allegations that Ali contributed to the criminal plan even though he was not involved in its formulation.
“The reason for this dishonesty is the prosecution theory that ‘We will throw mud at the accused persons. Whatever mud it is, something will stick’,” said Monari.
Peter Otieno, the secretary of the Naivasha branch of the Kenya Plantation and Agricultural Workers Union, told the court that police rescued him when he was under siege at his home with his family on January 27, 2008 when there were attacks against non-Kikuyus. He, however, was unable to explain differences between what he told the court on Monday and testimony he gave to a government-appointed commission of inquiry that investigated the postelection violence in August to October 2008.
Prosecutor Desiree Lurf also asked him about the separate statements he gave to the defence teams of Muthaura and Ali. Otieno gave a statement to Muthaura’s lawyers dated August 5, 2011. He then more recently gave one to Ali’s team, dated September 2, 2011. In the second statement, which he says he signed, Otieno stated he had not been contacted by anyone else about the case before the ICC. When asked by Lurf to explain this contradiction he was unable to.