Did Moreno-Ocampo rely only on Waki and KNCHR reports for Kenya cases? Part III

In broad terms it can be said that the International Criminal Court (ICC) prosecutor has laid out allegations in the second Kenya case that names Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta and Head of Public Service Francis Kirimi Muthaura as co-leaders who allegedly planned, financed, and organized an ad-hoc formation of the criminal gang Mungiki and the police to carry out attacks in the Central Rift region of Kenya. The third suspect in the case, former police chief Mohammed Hussein Ali, is alleged to have helped by ordering the police not to intervene when Mungiki members went about their killing spree.

The Waki Commission report and the Kenya National Commission on Human Rights report are in agreement that the attacks in Central Rift were planned, organized, and funded by several individuals. The KNHCR lists Kenyatta as allegedly being among those individuals who raised money and planned the attacks. However, the KNCHR report does not name Kenyatta as the alleged leader of these efforts. In fact, in entry number 15 of its annex, the report lists him together with two other members of parliament, Kabando wa Kabando and Stanley Githunguri.

The Waki Commission report only names Kenyatta in relation to efforts to pacify his fellow Kikuyus in Limuru. The reports names him as one of several members of parliament doing this on February 1, 2008 at Limuru and Wangige towns. Kenyatta’s defense team highlighted these pacification meetings during the confirmation of charges hearings held earlier in October this year. This, however, does not mean Kenyatta’s name is not also in the Waki secret list of top suspected perpetrators that eventually reached the ICC prosecutor’s office.

Muthaura is not named in any of the reports. But, again, this does not mean his name is not in the Waki secret list. Ali is on the KNCHR list but the allegations made are broad claims against him of omission or over-reaching his mandate as police chief. There is no one location where these alleged omissions or otherwise are supposed to have been committed, according to the KNCHR list.

It is only the Waki Commission report that alleges a meeting took place in State House to plan the Naivasha attacks. This is in one sentence of the 500-plus pages long report. When the report came out in October 2008, the Presidential Press Service denied any such thing happened and has continued to make such denials whenever the issue has come up. In addition, this alleged State House link to the violence occupied quite a lot of time during the confirmation of charges hearings. Kenyatta’s lawyers particularly presented evidence and a witness to counter the prosecution’s allegations and even raised grave questions about the credibility of the prosecution witnesses who are claiming such a meeting took place.

That the attacks in the towns of Naivasha and Nakuru in the Central Rift region were in retaliation for the violence against the Kikuyu in North Rift is the main common narrative between the ICC prosecutor’s case and the reports of the Waki Commission and the KNCHR. The commissions, however, detail violence in other parts of Central Rift. Both report on the violence in the districts of Molo and Kuresoi, particularly since this is where previous election-related violence occurred in 1992 and 1997. In the lead up to the December 2007 election, there was low intensity violence in both districts that involved Kalenjin supporters of the ODM attacking perceived Kikuyu supporters of the PNU, the two commissions report. That violence escalated soon after the presidential election results were announced on December 30, 2007, said the reports, adding that some chiefs and police officers participated in the violence on the side of the Kalenjin.

The Waki Commission and the KNCHR also state that there was violence in Narok district, which is also in the Central Rift, but that it fizzled out after elders intervened on January 2, 2008.

The Waki Commission also reports on violence in another Central Rift district, Koibatek. The pattern of violence it describes in Koibatek is similar to what happened in the Molo and Kuresoi districts.

Tomorrow, the final article in this series tackles the question: Does it really matter if Moreno-Ocampo relied only on the Waki Commission and KNCHR reports for his cases?

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