Judges to take over as Ali makes final pitch

By Evelyn Kwamboka

The defence and prosecution teams in the confirmation of charges hearings at the International Criminal Court make their final submissions on Wednesday.

Postmaster General Hussein Ali leaves the ICC after a recent appearance. Photo: Evans Habil/Standard

What follows is a long wait of up to 90 days as the country holds its breath awaiting the decision of the three Pre-Trial Chamber II judges on the fate of the cases. Once the submissions are completed, the judges have three months in which to make their decision.

The first case involves Eldoret North MP William Ruto, Tinderet MP Henry Kosgey and radio journalist Joshua Sang. In the second case, the accused are Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Francis Kirimi Muthaura and Postmaster General and former Police Commissioner Hussein Ali.

On Tuesday, testimony by one of the witnesses appearing for Maj-Gen (Rtd) Hussein Ali came into the spotlight when it appeared to contradict a statement by a previous witness.

Responding to questions from Mr Morris Anyah, the lawyer for victims of the post-election violence, Senior Assistant Commissioner of Police Mohamed Ibrahim Amin maintained that the desk for reporting gender violence and other related offences at the police station in Naivasha was fully manned during the entire period of the violence.

"Mr Otieno said there were no officers at the gender desk because they were in the field and yet you say there were two or three officers at the desk," said Anyah.

Gender violence

On Monday, Peter Otieno, an official of Kenya Plantation and Agriculture Workers Union in Naivasha had said the gender violence desk at the police station in Naivasha was not fully manned during the time he and other internally displaced persons sought refuge there.

During cross-examination by Prosecutor Desiree Lurf on Monday, Otieno was taken to task over inconsistencies in the statement he made to the Pre-Trial Chamber II judges and what he told the Justice Philip Waki-led Commission of Inquiry on Post Election Violence.

Presiding Judge Ekaterina Trendafilova reprimanded Otieno for failing to look at the judges when answering questions from Prosecutor Lurf.

On Tuesday Mohamed Amin, who is also a Senior Assistant Commissioner of Police, told the judges Otieno’s testimony could not be factual as there is no time a desk at any police post is left unmanned.

He said former Police Commissioner Hussein Ali never issued an order to the police to shield Mungiki while executing attacks in Nakuru and Naivasha. Mohamed Ali, who was the Rift Valley Provincial Criminal Officer during the 2007-08 post-election violence, said such an order would have been unlawful and unwarranted for any officer to obey.

Ethnic composition

The witness said it would have been impractical to implement such a directive given the ethnic composition of the police in the two areas.

In Nakuru, there were 638 police officers out of which only 97 were from the Kikuyu community. Naivasha had 57 Kikuyus out of 272.

In Naivasha, the Officer Commanding Police Division (OCPD), Willy Lugusa, is from the Luhya community and the court was told the other tribes could not have stood down for their tribesmen to be massacred by the Mungiki sect members.

"I would have been the last person to execute such an order. It is like telling you to take a rope and hang yourself. There is no way you can do that," Amin told Pre-Trial Chamber II judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser.

ICC Prosecutor Luis Moreno-Ocampo had alleged the former police commissioner received a call from Head of Civil Service Francis Muthaura not to obstruct Mungiki sect members from committing crimes in Nakuru and Naivasha.

This, the prosecution claims, led to 112 deaths, 39 reported cases of rape and five forcible circumcision cases. In Naivasha, the prosecution gave statistics as 40 deaths, four forcible circumcisions of Luo men and more than 10,000 people displaced.

The officer who has risen through the ranks since he joined the police force’s CID department in 1989, said he would have been the "last person to execute" such an order.

"What will I tell the officers? Would I tell a Luo officer to stand aside for them to go unleash terror? How could they allow their tribesmen to be executed? It is impossible Madam President," he added.

Amin dismissed claims by the prosecution that members of the outlawed sect worked with the police during the violence.

Outrageous claim

"The last person Mungiki would want to see alive is a policeman. How could we work with them?" he queried, saying the prosecution’s theory that Mungiki worked with the police was "outrageous."

The officer told the court there were rumours of Mungiki members attacking people in the area and even on one occasion, Amin and other officers drove to Nakuru’s Stem Hotel after receiving information sect members were meeting there.

"There was no presence of Mungiki and none of them was involved in the Nakuru and Naivasha attacks," he said. The court was told Government officers were targeted during the violence and several were killed while others lost their properties.

"I almost fell victim. 13 officers were surrounded by the youth and three motor vehicles were burnt. Were it not for my presence, it could have been bad," he said, adding the youth were aged between 13 and 14.

Amin who is currently in charge of investigations at the CID headquarters said attacks in Naivasha were not planned since there were no indications that anything like that would happen. "In Naivasha, we never had an indication the area was to be attacked. It was an oasis of peace and emotions that caused the violence. I did not see any form of organisation or structured attack," he added.

He said there were tensions in the province and the whole country on December 29, 2007 due to the delay in releasing presidential results by the Electoral Commission of Kenya.

On December 30 when the results were released, people took the law into their hands and barricaded roads. Two to three days later, hundreds of IDPs started streaming into the province from other parts of the country that had been affected by the skirmishes, to churches, police stations and show grounds.

Lawlessness

Operations were paralysed, forcing the then Rift Valley Provincial Commissioner to call for an ad hoc urgent security meeting to deliberate on the lawlessness that was being witnessed in the region.

Issues discussed at the meeting included how to unblock the roads, feed the IDPs and restore law and order in the province.

Some members of the provincial security committee including Amin boarded an aircraft and flew over the region to assess the situation.

They went through areas such as Burnt Forest, Kinondo and Kiambaa in Eldoret.

"We could see homes in ruins, 16km from Eldoret. We were in Kiambaa where we saw an ugly scene in which almost 35 people were burnt in a church. We proceeded to IDP camps and the situation was horrible," Amin added.