Photo| Lawrence Maingi
Deputy Prime Minister Uhuru Kenyatta (centre) and Public Service head
Francis Muthaura (second right) leave the ICC Pre-Trial Chamber at the
end of the hearing on September 24, 2011.
By OLIVER MATHENGE omathenge@ke.nationmedia.com and WALTER MENYA wmenya@ke.nationmedia.com
Posted Saturday, September 24 2011 at 22:00
Posted Saturday, September 24 2011 at 22:00
In Summary
- Head of Public Service marshals support from the President’s inner circle and top security men to rebut Ocampo’s evidence at the ICC linking him to crimes against humanity
- Lawyers defend Muthaura against allegations that he is a member of Mungiki saying NSIS director Michael Gichang’i confirmed the public service head has no links with the proscribed sect
Cabinet secretary Francis Muthaura’s defence on Saturday
accused ICC prosecutor Luis Moreno-Ocampo and his team of selectively
relying on reports by Kenya’s Intelligence to make serious allegations
against him.
Mr Muthaura’s lawyers also defended him against allegations that
he is a member of Mungiki saying the National Security Intelligence
Services (NSIS) director Michael Gichang’i confirmed he has no links
with the proscribed sect.
The lawyers also argued that
Mr Muthaura had no authority over the police noting that the police
commissioner was appointed by the President and reported to the Internal
Security minister. They said at no time did former police boss Maj-Gen
Hussein Ali report to Mr Muthaura.
The defence noted that the National Security Advisory Council, which Mr Muthaura chairs, has no executive power.
They
quoted former Attorney-General Amos Wako as saying “its role is
advisory, it makes recommendations to various departments for action. It
is not an executive body and does not implement decisions.”
No executive power
Mr
Muthaura and Mr Ali had different roles, the legal team said. Quoting
the NSIS boss they said: “Muthaura as NSAC chairman has no executive
power...”
The defence attacked the credibility of the prosecution witnesses saying one had lied about his education history.
Lawyer
Essa Faal said the witness told the Waki Commission that a meeting took
place at 11am, but the prosecution asserts it was a breakfast meeting.
He added that the witness fabricated his testimony for his own benefit
and asked that the court not to believe him.
Mr Faal
said the witness said he was a Mungiki member and named two people who
he said had initiated him to the sect, which turned out to be false.
“Mr
Muthaura would not have motive to enter into criminal enterprise. He is
a civil servant and not a member of any political party. What benefits
would accrue to Muthaura at this stage in his life?” Mr Faal asked.
The
lawyer said minutes of meetings show that Mr Muthaura was working
towards a return to peace and not instigating violence as alleged by the
prosecution.
The defence also said the witness
statements from former President Moi and President Kibaki say only good
things about him. They added that the PNU government was already in
power before violence broke out in Naivasha and Nakuru and therefore
there was no motive to gain power.
“Suggestions that
retaliatory attacks were meant to keep PNU in power had no basis since
there was a government in place then. Naivasha and Nakuru are small
towns and it would not have helped to cause violence there to keep PNU
in power,” Mr Faal said.
The lawyer also questioned how
Mr Muthaura addressed youths at the Nairobi Members’ Club in Kikuyu and
yet he is a Meru. The defence submitted that Mr Muthaura does not speak
Kikuyu except saying a simple hello.
“Insinuations that he addressed Mungiki in Kikuyu therefore are
not valid. This is not insignificant. It is possible that the witness
was describing a different person,” Mr Faal said.
He said the staff at the Nairobi Members’ Club denied that Mr Muthaura and Mr Kenyatta met there.
Mr
Muthaura, the lawyer said, had no motive to commit crimes been a civil
servant and posed why his client would want to keep PNU in power, “a
party he does not belong to?”
The defence further
argued that the prosecution does not understand government structure and
one of their witnesses says Mr Muthaura does not have the kind of
authority alleged by the prosecution.
“On allegations
that weapons were distributed at State House, Nakuru, the prosecution
did not bother to interview staff but we did. A witness says allegations
fall short of reality. It is unimaginable that firearms could be issued
to a criminal gang,” Mr Faal said.
He added that
another witness said no visitors are allowed to State House in the
absence of the President, begging the question how weapons have been
distributed.
Mr Faal said they interviewed a high
ranking Mungiki leader in Nairobi, who denied that the sect members were
given Administration Police uniforms and told to carry out attacks in
Nakuru and Naivasha. He said the Mungiki leader termed the allegations
“madness”.
The defence also said that the NSAC recommended to the
AG and police to arrest the perpetrators of the violence. It also
observed that the number of those arrested was not commensurate with the
crimes committed and called for more arrests.
It also recommended the deployment of more security personnel in trouble spots to forestall violence.
“Mr
Muthaura strove to end the violence and it is inexplicable that he
would on one hand plan the chaos and on the other work tirelessly to
stop the fighting,” Mr Faal said.
Another of Mr
Muthaura’s lawyers, Mr Ken Ogeto, told the Chamber that the
prosecution’s case against his client lacked a clear line of reasoning.
“We
urge your honours to reject this case; to dismiss it because
confirmation in my honest opinion would be a grave miscarriage of
justice. The case is not fit to go to trial. The prosecutor must provide
a solid case. The Chamber must decide if there is a strong case with a
clear line of reasoning,” he said.
The lawyers were
keen to demonstrate to the Chamber that the violence started
spontaneously and that the police did all that was within their
abilities to protect civilians.
Mr Faal told the court
that the Kikuyus in Nakuru were attacked first and were only reacting to
the provocation. According to the lawyer, the Kikuyus in Nakuru
hadborne the brunt of attacks in the Rift Valley.
“Were
they to stand by as their kinsmen were slaughtered? Nakuru was a
Mungiki stranglehold, so why the need to transport them from Nairobi?”
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