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Principals face ICC nightmare over poll chaos

By | February 4th 2012

By Ken-Arthur Wekesa

Two Kenyan cases before the International Criminal Court present a legal and political nightmare for President Kibaki and Prime Minister Raila Odinga.

Both had their names dragged into pre-trial proceedings last year, with the President going one step further to offer himself as a character witness in one of the cases.

The preliminary hearings ended with four of the six initial post-election violence suspects committed to trial for crimes against humanity.

Kibaki, Raila face messy legal and political circus as top allies, bitter rivals face trial at the International Criminal Court over alleged crimes against humanity. [Photo: File/Standard]

Analysts say mentions of Kibaki and Raila are likely to be more frequent — and more bitter — should the four Kenyans now appealing the confirmation of charges be put on trial. Moreno-Ocampo is on record as saying that he had no evidence linking Kibaki or Raila with the violence.

ICC prosecutors brought up President Kibaki’s name in Case II, in which Deputy PM Uhuru Kenyatta and former Head of Civil Service Francis Muthaura were committed to trial, but former Police boss Maj-Gen (Rtd) Hussein Ali was not.

Chief Prosecutor Luis Moreno-Ocampo plans to present a witness who claims officials of the outlawed Mungiki sect attended a meeting hosted by the president at State House, Nairobi in 2007. Kibaki has dismissed the claims as something imagined by the witness, insisting it was a meeting with youth groups whose support needed in the General Election that year.

Moreno-Ocampo has termed the meeting a "preliminary contact" with the organised crime gang, which was later used "as part of an organisational policy" in revenge attacks in Nakuru and Naivasha in January 2008. Analysts point out the use of this prosecution witness may draw the President into the case, even if only to furnish the ICC with a rebuttal.

President Kibaki also offered a letter of support for Mr Muthaura, attempting to rebut some of the charges against three key players in his administration.

ICC pre-trial judges, however, went on to confirm charges against Muthaura. Should the former civil service boss lose his appeal, analysts say this line of defence may draw him in as a potential defence witness.

During the pre-trial hearings in Case I, defence teams used Raila’s name and party to attack the prosecution claim of an organisation of ‘warriors’ behind the violence. Lawyers representing Eldoret North MP William Ruto and radio presenter Joshua Sang argued the party was the only organisation, if any, whose leaders could be held to account.

They pointed to several witness statements that put Raila at the helm of the ODM political hierarchy and presented evidence ODM leaders called for "mass action".

Analysts say lawyers defending Ruto and Sang are likely to press on with this tactic, which serves both a political and legal function against Raila, who is a leading presidential contender.

Lawyer Ahmednasir Abdullahi says Kibaki’s name will feature prominently should the case against Uhuru and Muthaura go to trial. He adds such proceedings would be discomfiting to a retiring or former president, which explains the fight back from the Head of State and his allies over the alleged Mungiki link.

The Kenya Police recently released a list of 33 people who attended the meeting referred to by Moreno-Ocampo’s witness, saying three people named as Mungiki were part of an organisation called OKA.

The President has explained the November 26, 2007 meeting involved participants from eight youth groups backing his re-election under the ‘Kibaki Tena’ campaign.

"As we have stated in the past, no such meetings took place at State House," he said in a PPS statement. "(The claim) is, indeed, the product of the imagination of the so-called anonymous prosecution witness."

Attaching a photo of the event, the statement went on: "It is unfortunate that this grouping is now being branded Mungiki. It is even more erroneous to claim that Mr Uhuru Kenyatta was at this meeting because he was not, as evidenced by the photograph."
On Thursday, Vice President Kalonzo Musyoka and several MPs claimed at a rally in Meru there was a scheme to drag President Kibaki into the ICC cases.

Political ploy

"We are aware there is a political ploy by some people to drag President Kibaki’s name into the case," Kalonzo said. "What are the intentions of these people? There is no way Kibaki would have held a meeting with Mungiki in State House."

He added: "There is some mischief here. We know Muthaura has been a dedicated servant of this country for years and a close confidante of President Kibaki. By naming Muthaura, they are attempting to drag the President name into the whole issue."
Mr Joseph Magutt, a political analyst, suggests that the President will not relent in sending more statements to dispute the prosecution’s version of events.

"My projection is that even if Kibaki may not appear in person at the ICC, the Chamber will be compelled to ask him to record a statement or give an account of what he knows," Magutt said.

Dr Richard Bosire of the University of Nairobi concurs Kibaki’s name will continue featuring at the ICC proceedings because he will stand by his two allies.

"He seems to have taken the cases as (being against) the Government and if sending statements to shred Moreno-Ocampo’s evidence is what it will take to get, particularly Muthaura and Uhuru, off the jaws of ICC, so be it," said Bosire.

Bosire points out that Kibaki has "laboured" to bring the cases home -- including a State challenge to ICC’s jurisdiction and petitioning the United Nations Security Council to defer the cases -- is testimony of how personally he has taken the issue.

"More than anything, it is his regime on trial and he has no option but to continue fighting," he adds.
Mr Njonjo Mue of the International Centre of Transitional Justice, however, cautions it is highly speculative at the early stages to imagine the President’s name will feature at trial.

"It depends with what the prosecution will further produce before the Chamber and also the strategy the defence teams of the accused may pursue," said Njonjo.

But equally, Magutt opines, even Raila’s name could be more intense during the trial as it was at the confirmation of charges hearing last year.

"It was Kibaki and Raila who were the heartthrob of the contest and make no mistake, the accused will drag the two into this thorny issue. They have done it earlier in a way protesting that while they are being accused of criminal responsibility, some people should take political responsibility," Magutt posits.

When Uhuru took to the witness box in his own defence, he implicated Raila during cross-examination by Moreno-Ocampo, claiming the ODM leader’s vote-rigging claims incited opposition supporters to violence.

"I will not say that he was criminally responsible because I have had no evidence ... But he has political responsibility because of the inflammatory statements," said Uhuru. His lawyers hammered away at the theory in closing submissions.

Defence lawyers for Ruto and Sang had also earlier questioned why the prosecution ignored witness testimonies touching on Raila.

Ruto’s lawyer David Hooper said: "Witnesses have said that they recognised Raila Odinga as the ODM leader and that he funded the presidential campaign in which he was a candidate. However, no effort has been made to bring him before this court."

On Friday, Magutt suggested the defence teams would press on with the narrative as they strive to free their clients from the war crimes charges.
"I am persuaded that whether genuine or otherwise, Ruto and Sang will continue regurgitating the narrative that they were not seeking direct power, it was the ODM leader," says Magutt.


Uhuru’s lawyer, Steven Kay, played numerous media clips to demonstrate the language Raila used at the time of the post-election violence was highly inciting.

By running such clips, Kay claimed the ODM leadership had planned to seize power at all costs using the scheme by Dick Morris, the architect of the 2004 Ukraine Orange revolution. He said the vote-rigging claim and mass actions calls had been rehearsed in the event ODM lost.

"Their cries were not to be made by a plea to the judicial process for an orderly and proper challenge in the courts to the validity of the electoral results. Their cries were to their supporters as a call to arms to attack their political opponents and to create such civil disturbance and violence so as to make Kenya ungovernable and cause the elected government to surrender and enable them to take power," Kay charged.

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