How spy agency helped to nail the Ocampo Six

FILE | NATION NSIS director general Michael Gichangi takes the oath to testify before the Waki Commission at KICC in 2008

By  Emeka-mayaka Gekara emayaka@ke.nationmedia.com
Posted  Saturday, March 26 2011 at 22:00

In Summary

• Intelligence documents are crucial for the ICC prosecutor because they emanate from a key security arm of government, says lawyer

Evidence gathered by the national intelligence agency may have been used to nail post-election violence suspects waiting to appear before the International Criminal Court pre-trial judges.

Inquiries by the Sunday Nation revealed that testimonies by the National Security Intelligence Service (NSIS) and provincial security officials before Justice Philip Waki’s commission on post-election violence provided valuable information for ICC prosecutor Luis Moreno-Ocampo’s case.

While testifying before the Waki Commission, top security officials – including NSIS director general Michael Gichangi – disclosed that the agency had gathered and relayed intelligence on individuals who funded and organised gangs such as Mungiki and Kalenjin Warriors to cause chaos during the 2007 election period.

On July 21, 2008, Gichangi  testified that the NSIS had names of politicians who bankrolled the militias and requested to reveal their identities in private.

“We established they were politicians who were seeking elective posts as civic leaders and Members of Parliament as well as others from the private sector but, because of the sensitivity of the matter, we will avail that brief to the commissioners in private,” the NSIS boss said.

Prosecution case

A retired state counsel, who cannot be quoted discussing intelligence matters, said that in attempts to clear itself, the NSIS may have unwittingly bolstered the prosecution’s case against the suspects.

“The intelligence reports and testimonies would help any prosecutor … It seems that Moreno-Ocampo succeeded in transforming the NSIS information into solid evidence. The testimonies inadvertently put the suspects out to dry,” the lawyer told the Sunday Nation.

“The NSIS documents provided critical hints for the prosecutor because they emanated from a key security arm of government. They identified prey for prosecutor.”

Mr Moreno-Ocampo has convinced ICC judges that he has grounds to prosecute Deputy Prime minister Uhuru Kenyatta, MPs William Ruto and Henry Kosgey, Public Service head Francis Muthaura, former police chief Hussein Ali and journalist Joshua arap Sang for crimes against humanity allegedly committed during the 2008 violence.

The six have been summoned to appear before the ICC judges on April 7 for an initial hearing to have the charges read to them.

Law  Society of Kenya chairman Kenneth Akide says much of the  prosecutor’s evidence could be watertight because it constituted testimonies by respected state agencies such as the NSIS and assembled by skilled jurists.

“Though the prosecutor conducted his own investigations, there is no doubt he benefited from evidence prepared by a distinguished court of appeal judge (Justice Waki) who is highly qualified to determine what sort of evidence can stand the test of a serious attack at such a high level.”

Commit atrocities

In his testimony, Major-Gen Gichangi pointed out that some youths took oaths to commit atrocities during the post-election period with blessings from politicians.

The spy chief also told the commission that politicians in some parts of the country used coded language, asking their people to rise up and get rid of some communities.

It is not known what names the spy chief revealed to the commission in camera, but the Waki report reveals his line of argument in defence of the agency.

He said NSIS did its  part to inform other security agencies of possible violence.

It was his testimony that all relevant departments were adequately briefed, but failed to act accordingly.

“Kenyans are still asking: ‘Where was the NSIS?’ I want to tell them that we did our part, but the State security agents failed to respond as expected because they were overwhelmed by the magnitude of the violence,” said Maj-Gen Gichangi.

The agency produced regular and special reports and security briefs at provincial and district levels in the months leading up to the 2007 General Election.

Intelligence reports, some of which were made available to the Waki Commission and apparently transmitted to the ICC, named possible suspects for the violence in Uasin Gishu, Nakuru, Naivasha and Nairobi.

“The documents identified various individuals suspected of being involved in such activities as inciting, planning disruption and violence and, threatening behaviour,” said the Waki Commission report.

During his visit to Nairobi last December, the ICC prosecutor acknowledged that evidence received from the Waki Commission and the Kenya National Commission on Human Rights was “fundamental” in deciding to open an investigation in Kenya.

“We collected new evidence, new testimonies, new videos and new documents,” he said.

The prosecutor’s investigations mainly revolve around violence in Naivasha, Eldoret and Nakuru.

The Waki Commission also reveals that the NSIS collected information on the planning of violence in Naivasha by Mungiki members and politicians, at local and national level.

“All NSIS evidence discussed here was produced as Exhibits 19 and 19A. Testimony produced in camera,” footnotes in the report say.

The NSIS demonstrated that as early as January 3, 2008, it had information that Mungiki members were meeting “in an undisclosed location in Nairobi with a view to carrying revenge attacks on Luos and Kalenjins travelling along Nairobi-Naivasha highway on an undisclosed date.”

The commission said it had evidence that government and political leaders in Nairobi, including key office holders at the highest level of government, may have directly participated in the preparation of the attacks.

“Central to that planning were two meetings held in State House and Nairobi Safari Club in the run-up to the election with the involvement of senior members of the government and other prominent Kikuyu personalities.”

The NSIS also gave evidence indicating that on January 15, 2008, a week before the most brutal attacks erupted in Nakuru, it established that some Mungiki members were planning to discredit the government by instigating chaos in Nakuru.

In a January 2008 report, the Gichangi’s men said that “some senior Kalenjin personalities were funding ODM activists to organise youth for violence”.

The agency indicated that by November 2007, Kalenjin youth were already harbouring plans to attack the Kikuyu and Kisii in parts of Rift Valley to disenfranchise the two communities for supporting certain politicians.

When they issued summons for the six suspects to appear before them, judges in the ICC Pre-Trial Chamber said they are convinced that there are reasonable grounds to believe that Mr Muthaura and Mr Kenyatta are criminally responsible for acts of  murder, and forcible transfer committed in Nakuru and Naivasha and rapes committed in Nakuru.  Mr Kenyatta is accused of teaming up with Mr Muthaura to coordinate Mungiki revenge attacks in Naivasha.

All the three Pre-Trial Chamber judges — including dissenting Hans-Peter Kaul — were satisfied that Mr  Kenyatta was “the principal contact” between the Mungiki gang and the key  perpetrators. The other judges in the case are Ekaterina Trendafilova and  Cuno Tarfusser.

The judges were also convinced that  Major-Gen Ali, who commanded the police at that time, was contacted by Mr  Muthaura who instructed him to order the police not to interfere with the perpetration of the crimes by the Mungiki.

The judges were also persuaded that Mr Ruto made available guns, grenades and gas cylinders and cash to perpetrators in Rift Valley and coordinated efforts before the outbreak of the violence.

For Mr Kosgey, the judges said there was evidence to demonstrate that he promised the perpetrators immunity for the crimes, and that he distributed money to participants in meetings while Mr Sang of Kass FM used his daily talk show to spread propaganda instigating violence against the non-Kalenjins and calling for their eviction.