File | NATION President Kibaki takes the oath of office in December 2007. As commander in chief of the armed forces, legal experts say he could be called upon to explain what steps he took to quell the post-election violence.
By Emeka-Mayaka Gekara gmayaka@ke.nationmedia.com
Posted Saturday, August 27 2011 at 22:00
Posted Saturday, August 27 2011 at 22:00
IN SUMMARY
- Some say new evidence alleging Mungiki met at State House to plot post-election violence may force ICC to call the chief State House tenant to set the record straight
International Criminal Court Chief Prosecutor Luis Moreno-Ocampo’s latest disclosure of evidence alleging that State House was used as a command post for the post-election violence has turned the spotlight on President Kibaki with debate raging over the possibility he could be adversely mentioned if the cases proceed to trial.
Part of the evidence against Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and Post-Master General Hussein Ali alleges that the Mungiki gang held meetings at State House Nairobi to plan the 2008 attacks in Naivasha.
The President’s allies see this as an attempt to drag his name into the ICC process without formally indicting him — at least for now.(READ: Kibaki furious over Ocampo’s evidence)
“The fresh evidence seems to fortify what has hitherto been a closely guarded fear among the President’s men; that from the outset, President Kibaki was the real target and not Mr Muthaura, his trusted aide and confidant,” said a source close to the Presidency.
According to the source, being the chief State House tenant, there is mortal fear he might in future be called to set “the record straight” on the alleged meetings, possibly as a witness once he has handed over power.
Besides the alleged meetings, those around the President are apprehensive about fresh accusations implicating the military whose trucks were allegedly used to ferry the Mungiki gangs to Naivasha. President Kibaki is the commander in chief of the Defence Forces.
The other concern is that as commander in chief, the President might at one point be asked to explain his role in quelling the violence. State House has described the prosecutor’s allegations as recklesss, baseless and untrue.
“As we have said before, no meeting ever took place at State House with any member of the Mungiki. The Ocampo reference to State House meetings is, therefore, far-fetched and a blatant lie,” State House said in a statement immediately the alleged evidence was disclosed.
Mr Moreno-Ocampo is on record as saying he had no evidence linking President Kibaki and Prime Minister Raila Odinga to the violence.
Dismissing the State House link, the President’s handlers argue that it could have been reckless to hold such meetings at State House, a public venue where employees from all ethnic communities and backgrounds work.
But probably the enduring question, according to lawyer Paul Muite, is whether such a meeting, if ever, would take place without the knowledge of the chief State House occupant.
“It is not possible for anybody to think of holding such a meeting at the seat of power without the knowledge of higher authority. If I was the chief tenant at that time, I would be very worried not withstanding the prosecutor’s promise that he won’t pursue the two principals,” said Mr Muite, a senior counsel.
“The President had the keys to the armoury and command of the disciplined forces. The ICC might be interested to know how the President responded. It is difficult to argue against the high risk that the President may be mentioned adversely ” said Mr Muite.
On the meeting, the lawyer pointed out that the prosecutor would have to present witnesses. But two lawyers conversant with the ICC narrative said the President had absolutely no reason to worry.
Mr Paul Mwangi and Germany-based Alexander Eichener said the prosecutor had already made it clear he will only pursue six individuals who he believes bear the greatest responsibility for the violence.
The President can only be worried about his legacy. There will not be further investigations on the Kenya case to increase the number of those suspected to be most responsible,” said Mr Mwangi.
Mr Eichener said the ICC prosecutor has “very purposefully” spared the two top leaders on either side in his investigations and the court chamber cannot add them into the picture
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