Pressure piles on Kibaki to let go Muthaura, Uhuru

By ISAAC ONGIRI

The second confirmation of charges hearings in The Hague featuring Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and Postmaster General Hussein Ali is generating a lot of heat within President Kibaki’s inner circle.

Signs of anticipated local and International pressure to force the two to resign from Government began to show two weeks ago when ICC Prosecutor Moreno-Ocampo wrote another letter to the Government asking for the immediate resignation of both Muthaura and Uhuru from their influential Government positions.

Early this week, a Cabinet committee on the ICC, chaired by Internal Security Minister Prof George Saitoti, met and among other things reviewed the letter by Ocampo and differed on whether or not the two should quit upon the confirmation of their cases.

Legal Officer at the ICC Courts Mohamed El Zeidy (right), ICC Spokesperson Fadi El Abdallaah (centre) and Senior Legal Advisor Gilbert Bitti address the Press at the ICC Courts yesterday. [PICTURE: EVANS HABIL/STANDARD]

In an Interview with The Standard on Saturday, Justice Minister Mutula Kilonzo warned that some of the arguments being advanced by individuals who want Uhuru and Muthaura to stay on have always led Kenya into trouble and put the country in perennial conflict-management mode.

And Mutula is candid in his argument: "Even before the new Constitution was adopted, we had the Public Officers Ethics Act, and we have seen people stepping aside on very petty cases compared to this one.

Look at the case of Foreign Affairs Minister Moses Wetangula, for example. Under the new Constitution, people should not advance such arguments. It is obvious that if the cases at the ICC are confirmed, then the Government cannot sustain the inclusion of two in Government".

Citing article 75 of the Constitution, Mutula argued: "If you ask me, the cases at the ICC are over some of the worst crimes on earth, they are demeaning indeed and the law is obviously intolerant of public officers facing such cases," said the minister.

The question bothering the President and his key lieutenants is what to do in the face of confirmation of the cases hearings facing Uhuru and Muthaura due on September 21.

Uhuru and Muthaura stand as the pillars of the Kibaki administration.

And the big issue posing the greatest dilemma to the President — who is in his last term of office — is whether to take courage and fire the two loyal supporters in order to be seen to comply in both the spirit and letter with a Constitution that holds key to his legacy. Further, it is believed that lingering in Kibaki’s mind is whether or not to remain defiant and keep Uhuru and Muthaura — whose inclusion in the career-threatening international crimes cases arose out of their defence of his presidency.

Previous responsibilities

Muthaura is in-charge of the Public Service, which includes the Police service. He has, however, stepped out of his previous responsibilities as chairman of the Cabinet Sub-Committee on National Security and Intelligence.

Uhuru is a top-level member of the grand coalition government and the finance docket he holds ranks him as one of the very influential ministers.

After having explored all the possibilities to either stop or delay the cases, President Kibaki and his men are said to be preparing for the worst, which is whether or not the cases will be confirmed.

"He has called for the opinion of the Attorney-General, his advisors on constitutional issues and other legal confidants in government on how to handle this hot matter," said a senior Government insider.

The ruling on whether or not the first case will go to full trial is expected in 60 days, which is around December 24, and slightly thereafter for the second case.

The biggest headache in the minds of Kibaki advisers keen to ensure that Muthaura and Uhuru keep their jobs, it has been revealed, is how to explain to the public why under similar circumstances former Higher Education Minister William Ruto had to be suspended, why former Industrialisation Minister Henry Kosgey — who together with Ruto are also ICC suspects — had to resign and why former Roads Assistant minister Dr Wilfred Machage had to be suspended over hate speech claims.

Ruto was suspended by President Kibaki after a Nairobi court ruled that he had a case to answer over an alleged Sh272 million fraud case, but has since been acquitted while Kosgey resigned under pressure after a court ruled that he had a case to answer over a corruption case involving the importation of aged motor vehicles.

Assistant Minister Lee Kinyanjui said though the Uhuru and Muthaura were innocent until proved guilty, it was a different issue altogether if the cases were confirmed. The Nakuru town MP is conscious of Chapter Six of the Constitution, which he says may halt the continuous stay of the two in Government.

"To be honest, I think it will be obvious that the two can’t stay in their positions in the unlikely event that their cases are confirmed, it is not possible," Kinyanjui told The Standard on Saturday.

Ordinary public officers

Nairobi lawyer Ojwang’ Agina warned that it would be a breach of the law to allow individuals who have cases to answer to stay in Government. "Even today, ordinary public officers with criminal cases are immediately interdicted. It will be odd for Kibaki to think he can keep the two in public office if their cases are confirmed," said the lawyer.

However, Cabinet minister Njeru Githae sees things differently. He cites the Rome Statute that he claims protects suspects from being condemned or being forced to suffer unnecessary losses or disadvantages until their cases are proved beyond reasonable doubt.

"There is a very huge difference between the international cases the two are facing in The Hague and any local cases. Here, we must stick to international laws," said Githae.

The minister said there was no requirement in law that based on the ICC cases, Uhuru, Muthaura and Ali should be discharged from their Government positions.

His Trade counterpart, Chirau Ali Mwakwere, maintained that there was no cause for alarm as the Kenyan Constitution provided that anyone was innocent until the day the court would prove quilt.

"Who will want to draw the blood of an innocent man… who will want to have innocent people fired from Government? Not until Moreno-Ocampo prove they are guilty," said Mwakwere.

This school of thought is further cemented by the reasoning of city lawyer Kibe Mungai, who argues that nothing in law compels the President to fire the two on the basis of confirmation hearings.

"The cases faced by Ruto and Kosgey were anti-corruption cases and therefore fell within the provisions of the Anti-Corruption and Economic Crimes Act, a scenario very different from the ICC cases. In fact, the law is clear that the two may only lose their positions upon conviction beyond six months," Mungai argues.

Ndaragua MP Jeremiah Kioni reasons that it is an abomination to even start thinking that Uhuru’s case will be confirmed.