By Alex Ndegwa and Cyrus Ombati
Three of the 'Ocampo Six' may have defied Criminal Investigations Department summons to avoid distractions ahead of confirmation of charges hearings at The Hague.
Head of Civil Service Francis Muthaura’s lawyers have said their client would not take part in "eleventh hour" investigations that subject him to a parallel probe.
Deputy Prime Minister Uhuru Kenyatta and Postmaster General Hussein Ali are also unlikely to appear before detectives at the CID headquarters.
Godfrey Musila, an international criminal lawyer familiar with International Criminal Court operations (ICC), says with confirmation of charges hearings due, defence lawyers may have decided to concentrate on missions that aid their cases.
"Now the defence teams should be looking for either rebuttal evidence or evidence that weakens the prosecutor’s case. Anything else is a sideshow that does not help your case at the ICC," Dr Musila told The Standard On Saturday.
Muthaura’s lawyer Karim Khan advised his client against recording statements with the local police until after the hearings beginning on September 21.
"It will be reckless and unfair for him to start dealing with an eleventh hour investigations being conducted by the local police. Local police can wait for now," said Khan, adding his client cannot face two jurisdictions investigating the issue.
Musila added: "You also don’t want to give evidence that might be used against you. The Hague might fail to confirm the charges only for local authorities to pursue you on lesser charges."
But political analyst Mutahi Ngunyi argues the Government officials were not going to appear before the police in investigations prompted by crimes against humanity cases, which the State has challenged.
"Who is the CID?" Mutahi posed, adding some of the officials call the shots in Government and it would appear like "they are interviewing themselves".
Muthaura and Uhuru did not respond to the Government filing of an Updated Investigation Report to the ICC, despite Appeals Chamber prompting.
The Government had sought last month to submit the report on investigations against the Ocampo Six to support its appeal against the dismissal of its admissibility challenge.
The ICC Appeals Chamber had on July 14 ordered Mr Muthaura, Mr Uhuru and Mr Ali to file, within five days, any observations as to whether it should accept or dismiss the Updated Investigation Report.
ICC records show only Ali filed the defence observations in which he endorsed the Government’s position and made no further submissions.
But Musila explains it may well be the lawyers of the other two did not find a meaningful purpose to file their clients’ observations, or they could have felt Ali’s position represented them as well.
The Appeals Chamber has since rejected the report thus weakening Kenya’s appeal against the Pre-Trial Chamber’s decision to reject the admissibility challenge of the cases.
Kenya had requested the Appeals Chamber to accept the report "as further confirmation that national investigations into the six suspects are ongoing and progressing expeditiously".
It described the report "as further unequivocal evidence of the Government of Kenya’s intentions and of its conduct in investigating the six suspects".
But it is unlikely to have Muthaura, (Head of the Civil Service) Uhuru (Minister for Finance) and Ali grilled by their juniors, on such grave charges.
Ali was the police chief during post-election violence. Likely interrogators from the CID were, therefore, his juniors, including the Police Commissioner, Mathew Iteere.
ICC Prosecutor Louis Moreno-Ocampo accuses the three of murder, forcible transfer, rape, persecution and other inhumane acts.
Police reportedly are using charges that Moreno-Ocampo has against the six as a guide for their investigations. But it is not clear who ordered the CID to investigate.
Director of investigations at CID headquarters, Mohamed Amin, is leading 10 detectives who have visited the Rift Valley, the hotspot of post-election violence in 2007-2008, to collect evidence.
Mr Amin, a senior assistant Commissioner of Police, was Rift Valley Provincial CID officer during the chaos. Ali was his boss then.
In the circumstances some have said it would be discomforting, for instance, officers who took orders from Ali to question him on police handling of the violence in which 1,133 people were killed, and about 600,000 displaced.
Ali’s lawyers were non-committal on the issue.
Muthaura’s lawyer added whereas his client was willing to face the police, he had advised him against it, since the ICC has taken over the case.
Political analyst and Advocate of the High Court Paul Mwangi said the positions of the detectives and those being probed do not matter.
"When police are investigating the rank of the investigator or whoever is under probe does not arise. It’s not the individual doing the investigations, but the police," Mwangi says.
But Mwangi agrees Muthaura’s view is correct since the law is clear you cannot subject a person to two jurisdictions.
Eldoret North MP William Ruto, the third to be probed on Monday, agreed he was questioned over claims he distributed guns during post-election violence.
Ruto said he was asked to respond to claims he hosted some retired army generals to allegedly plan and execute the violence.
"I told them the said generals had never come to my home and that it is impossible for me to have distributed guns as alleged," said Ruto.
Tinderet MP Henry Kosgey and radio presenter Joshua arap Sang have also been interrogated.
Musila says why the three agreed to the CID probe is not clear, including whether they were coerced.
"It may be dangerous for suspects to give full information to the CID that might be used against them to support local charges," he said. But it was a show that the suspects were willing to submit to a local process, he added.
Mr Iteere insists the investigations into the chaos are ongoing. He said they are investigating 3,500 cases, which include rape, murder, arson, mass eviction and other serious crimes.
"All the six and several other suspects are under investigation. Remember we have opened up to 3,500 files over the violence," he said.