Why Kibaki won't let Muthaura go

By Juma KwayeraThe fierce battle to save the ‘Ocampo Six’ is turning out to be a desperate bid to ensure President Kibaki is out of harm’s way should the International Criminal Court want to dig deeper into the 2008 post-election violence.
There is mounting fear in the Party of National Unity (PNU) that when push comes to shove Francis Muthaura, arguably the President’s most trusted ally in the Government, could opt to shed light on the grey areas in Waki Commission report, which points a finger at State House as the place where some of the violence could have been planned.

Francis Muthaura

This week’s concerns by ICC Chief Prosecutor Luis Moreno-Ocampo that Muthaura and Deputy Prime Minister Uhuru Kenyatta have not resigned heightened the stakes amid fears that the ICC laws allow Ocampo to apply for the detention of any suspects whom he deems could interfere with investigations or witnesses.
The fears were triggered by Ocampo’s concerns this week that Muthaura, who chairs the National Security Advisory Committee and Uhuru, who is a member of the Witness Protection Advisory Board by virtue of his position as Finance Minister should resign because they could influence the police or interfere with witnesses.
But the President will not let Muthaura go because the charge brought against him come too close to the Office of the President. Speaking yesterday at State House during a courtesy call on him by China’s Vice Premier, President Kibaki said Kenya was committed to seeking the deferral of the cases so as "to entrench peace and security."
Muthaura, in an audio-clip that has generated a lot of heat in the President’s camps, places blame on his ‘superior’ and heads of security agencies.
"If you are an advisor you cannot take the highest responsibility. The person you are advising and the bodies you are advising take the highest responsibility," the voice on the clip says.
Ocampo says the retention of Muthaura as chair of NSAC, a convergence of the military, police, Administration Police, and other intelligence services, accord him unrestricted access to potential witnesses and evidence, which he can manipulate.
Unsure of how Muthaura will handle the matter, PNU has held a series of strategy meetings to subvert the ICC process in a manner observers liken to the biblical Tower of Babel. Part of the strategy was to fast-track the appointment of top of judicial officers to convince Chief Prosecutor Luis Moreno-Ocampo the country had the capacity to try the suspects.
The six suspects are Muthaura, Uhuru, former Cabinet ministers William Ruto and Henry Kosgey, Postmaster General Hussein Ali and radio presenter Joshua Sang.
When the strategy boomeranged, the next stage was to embark on the second phase of lobbying the UN Security Council. After Kenya’s informal meeting with the council members was put off on Wednesday but a meeting was expected last night.
People close to Muthaura say he privately complains that the President’s ‘kitchen cabinet’ set him up and after the 2008 chaos they can only sympathise with him as he carries the cross of those in power. The Head of Civil Service is said to have tendered his resignation in 2007, but President Kibaki prevailed upon him to stay on.
On Wednesday, the police announced plans to launch investigations into the 2007-08 mayhem that claimed 1,133 lives and displaced 600,000.
When Ocampo met President Kibaki and Prime Minister Raila Odinga in December, last year, he left no doubt that State House, where the Waki Commission report says the violence was planned was still on his radar.
Imenti Central MP Gitobu Imanyara says Kibaki cannot let go Muthaura lest he exposes the skeletons in the Government’s closet. By attempting to shield Muthaura and Uhuru, Kibaki is inadvertently eliciting the wrath of ICC with regard to witnesses’ safety and evidence inviolability, says Imanyara.
Imanyara, a constitutional lawyer, says, "Kiraitu’s casting aspersions on the integrity of ICC can only worsen the plight of the six. Why is he not asking why Kibaki was left out of the evidence of the NSIS director before the Waki Commission that clearly implicated him?"
The fear now is that Muthaura and Uhuru risk detention at The Hague if they continue holding public offices that could make them interfere with witnesses.
Although lawyers versed with ICC procedures says this is unlikely to happen when the six suspects travel to The Netherlands on April 7, they say it is also possible that Moreno-Ocampo could be considering filing an application before the Pre-Trial Chamber judges to detain the two so that he can curtail their influence on the witnesses.
Lawyer Njonjo Mue says the bellicose nature of the Government’s reaction to the ICC investigation is injurious to the cases of the six suspects.
"The summonses are procedural and are for the purpose of identifying the suspects. Ocampo cannot change anything during the visit. However, if they violate the conditions they are supposed to observe, the Chief Prosecutor can make an application to the Pre-Trial Chamber to change the summonses," says Mue, who specialises in international law.
Although the summonses are routine, there are now concerns that the behaviour of the Executive might land some of the suspects in more trouble amid spirited attempts to frustrate ICC and shield the six from criminal justice.
Experts versed with how ICC handles cases that come before it say Nairobi’s antipathy to The Hague and subsequent attempts to subvert the process have put the suspects in a precarious situation before the charges they face are read to them.
"What Ocampo wants is enshrined in the new Constitution and should have been effected as soon as the six names were made public. The defiance serves to cast doubts about the Government’s pledge to cooperate with the ICC," Mue says of Ocampo’s desire to see Muthaura and Uhuru resign.