Prosecution names individuals who helped accused in second Kenya case

The document updating the charges against Kenya’s deputy prime minister and a former top bureaucrat has the names of some of the individuals who worked under them and allegedly helped them commit the crimes against humanity they are charged with.

The names are redacted in the public version of the amended document containing the charges but would be available to the defense teams of Deputy Prime Minister Uhuru Muigai Kenyatta and former Public Service Chief Francis Kirimi Muthaura.

This is one of the several changes International Criminal Court (ICC) Prosecutor Fatou Bensouda has made to the document as instructed by Trial Chamber V in July. The judges ordered the prosecutor to amend the document to reflect the January majority decision of Pre-Trial Chamber II confirming the charges against Kenyatta and Muthaura but dropping those against former police chief Hussein Mohammed Ali.

Kenyatta and Muthaura face five counts of crimes against humanity for their alleged roles in the violence that shook Kenya after the December 2007 presidential elections. Their trial is scheduled to begin in April 2013, just weeks after Kenya goes through another general election. Kenyatta is aspiring to run for president in that poll.

Named in the amended charges document is a former National Coordinator of the Mungiki, a gang banned by the government. The prosecution has alleged that Kenyatta and Muthaura used the Mungiki to conduct attacks in the Central Rift region against their perceived opponents in retaliation for the attacks against Kikuyus in the North Rift region in January 2008. Kenyatta and the Mungiki are members of the Kikuyu ethnic group.

Also named in the charges document is one of Muthaura’s subordinates the prosecution alleges distributed to the Mungiki uniforms of an arm of the Kenya Police Service, the Administration Police. The prosecution also names another subordinate of Muthaura who is alleged to have delivered cash to Mungiki leader Maina Njenga, who at the time was in jail on unrelated charges.

The other changes in the document include adding details that came out during the pre-trial hearings such the venues of meetings that Kenyatta and Muthaura allegedly attended to plan the violence in the Central Rift region. The venues added are State House Nairobi, the president’s official residence, and a private members’ club, Nairobi Members’ Club.

The prosecution has also added more details about the alleged roles Kenyatta and Muthaura played in the planning, financing and organizing of the violence.

One annex to the prosecution’s updated document containing the charges is not posted on the ICC website because of a challenge made by Kenyatta’s lawyers. Kenyatta’s defense team did not want its observations to the prosecution’s document made public and posted as an annex on the website. Kenyatta’s defense team wanted them reclassified as confidential, meaning that they would be shared among the different legal teams but not be available for public reference.

The Kenyatta defense team also wanted the document reclassified because the prosecution had made the observations public without notifying them. They felt that “[g]iven the heightened media attention on the Kenya cases … a public filing of the observation chart could contaminate and/or influence potential witness testimony.”

Muthaura’s lawyers did not make any challenge to the observations being made public. In Kenya case one, the prosecution published for public view the observations made by the defense of former Cabinet Minister William Samoei Ruto and radio journalist Joshua arap Sang and none of those defense teams made any objection.

The judges, in a September 12 decision, declined to reclassify the observations as confidential but gave the parties until this past Wednesday to propose any redactions necessary. The judges said that they would then issue instructions to the registrar on how the observations would be published.

 

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