Uhuru won the propaganda war but has lost the legal battle

By Miguna Miguna

These are preliminary reflections on and analysis of the ongoing confirmation hearings of The ICC Prosecutor v. Francis Karimi Muthaura, Uhuru Muigai Kenyatta and Hussein Ali.

Uhuru’s British barristers Steven Kay and Gillan Higgins are masters in the art of advocacy. They understand and have command of the courtroom. They know their case. They’ve mastered the facts. They have the requisite language and attitude. This is war and both lawyers are determined not to take any prisoners.

Like Kay, I was taught that you investigate your case thoroughly before appearing in court to argue it on behalf of your client. You examine the facts, the witnesses and everything touching on your case – but more importantly, you must understand your client. The two barristers retained the services of a British private investigator, Garry Summers to accomplish all that. They are arguing that Summers is “an independent forensic expert.” That’s incorrect. Mr. Summers is a “private investigator” hired by Uhuru. He has not been hired by the ICC, the victims, the prosecution, witnesses or the other suspects. Mr. Summers is exclusively working for Uhuru. Consequently, his findings must be taken with a pinch of salt.

Uhuru has correctly approached his case as both a political and legal battle. His testimony served both purposes. Let’s give the devil his due: Uhuru performed beyond expectations. His lawyers were masterful in their examination-in-chief. They flew under Pre-Trial Chamber II Presiding Judge Ekatirina Trendafilova’s rudder; leading the witness while appearing to ask open ended questions. It was first class litigation!

They selectively played and read TV, radio and print media clips, mainly from media houses owned by Uhuru and his friends. There were clips from K24, The People newspaper and KTN. Unfortunately for Uhuru and Muthaura, former president Daniel arap Moi’s and President Mwai Kibaki’s statements read in court in their support weren’t tested. Moreover, the media clips weren’t played in full and the court cannot fully appreciate their full context and circumstances. They will most likely be considered to have zero probative value.

That’s not to downplay their political significance. Nor the significance of Uhuru’s testimony. He scored highly - not because he was entirely truthful - but because Ocampo failed to conduct piercing cross-examination. Ocampo had numerous entry points that he completely failed to exploit.

Uhuru owns banks, insurance companies, major industries, real estate, and farms. He is considered one of the largest land owners in the country, if not the largest. Yet, Ocampo couldn’t pin him down on his largess and how he couldn’t have used the same to fund Mungiki activities. He wasn’t asked why he hasn’t donated even ten acres to the IDPs of the millions of acres he owns. One of Uhuru’s houses shares a fence with State House. His Chancery Building offices are about 500 metres away from State House. It means he could and can drive in and out of State House within two minutes.

Uhuru testified that he was at the KICC from December 27th to 30th, 2007. That’s not entirely accurate. I was there. On December 27th, 2007, most parliamentary candidates were in their respective constituencies, securing their votes. They only travelled to Nairobi on December 28th - once parliamentary election results had been announced. Also, the presidential results begun to be announced in the evening of December 28th. Those who camped at the KICC for the entire period like me know that no MP-elect like Uhuru slept on the floors and chairs with us. They would arrive in convoys and heavy security at about 10 a.m each day and leave by 2 p.m.

On December 30th, Uhuru, John Michuki, Amos Kimunya, Beth Mugo and Kalonzo Musyoka attended the KICC early in the morning before suddenly “disappearing” at about 10 a.m. They emerged again at about 4 p.m. but left within thirty minutes to head to State House before the final results were announced by the ECK from a security bunker within the building at about 5:30 p.m. Within thirty minutes following the announcement, Muthaura and former Chief Justice Gicheru were on TV swearing in President Kibaki at State House.

How did they know Kibaki would be declared the “winner” to have assembled at State House before the “final tally” was announced? How were invitation cards printed, addressed and mailed out to “people from different parts of the country that attended the ceremony” as Uhuru claimed? How did they travel to State House and clear security within 30 minutes?

Both Uhuru and Kikuyu MP Lewis Nguyayi testified that they addressed kikuyu youth and visited IDP camps in Kikuyu, Tigoni and Limuru. What were the names of those IDP camps? Were the Luos, Luhyas and Kalenjins allowed to return to their homes and work places following their “intervention” or were they permanently evicted?

Cleverly, nearly all clips shown by Uhuru’s lawyers weren’t clear on the dates they were recorded. Were those roadside rallies before or after the savage Naivasha attacks? How come Uhuru never visited IDP camps in Naivasha, Kisumu, Eldoret and Nairobi?

Uhuru has blamed Raila Odinga for the violence because he called for mass action. When asked by Ocampo whether he has any evidence as to Raila’s criminal responsibility for the crimes, Uhuru answered: “no, I don’t have any such evidence; but he bears political responsibility.” However, the ICC has no jurisdiction over political responsibility. It deals with criminal responsibility.

Uhuru knows that peaceful demonstrations are and were allowed by law. He knows that most ODM demonstrators were peaceful and committed no crimes. It is common knowledge that the police committed serious atrocities against innocent civilians who were only demonstrating against what they believed was a stolen election. The same police force didn’t shoot at the armed and violent Mungiki and Kikuyu youth who were marauding along Naivasha-Nakuru highway. Were they under directions?

When challenged by Judge Ekaterina to state whether or not he has sued Peter Kagwanja for asserting in an academic journal in 2002 that he was linked to Mungiki, Uhuru purred and responded that he “intends to sue Kagwanja.” He also claimed that he wasn’t aware “until recently” about the article. But Uhuru had earlier claimed that Raila had also publicly stated sometime in January 2008 that he was “meeting with Mungiki in State House to plan the post-election violence.” The question is: why hasn’t he sued Raila? How about Ndura Waruinge who allegedly made similar claims?

Of course, Uhuru later asserted that he had successfully sued the KTN for publishing Raila’s ‘defamatory’ comments. Interestingly, he neither tabled the pleadings nor the court order “awarding him significant damages.”

Undeniably, Uhuru has scored a major political goal against Raila. His charge against Raila has gone unanswered. ODM is mute and confused. They didn’t have anybody at The Hague to counter Uhuru’s salvo. Not a lawyer. Not a spin doctor. Not an observer. Not even a demonstrator with a placard demanding justice for the victims! Uhuru has scored a huge one against Raila!

But Uhuru didn’t tell the court when or if – between December 27th, 2007 and February 28th, 2008 - President Kibaki preached peace and loudly called for calm. How about the main PNU leaders at the time?

Yes, Ocampo and his team haven’t done a good job. Some of the questions the prosecution did not ask but which they should have put to Uhuru, Nguyayi or Thuita Mwangi are: have you heard about the Artur Brothers? When did they “visit” Kenya? You are aware - are you not - that President Kibaki formed a commission of inquiry to investigate their activities? Are you aware the Commission found that the Artur Brothers were con-men, criminals, drug dealers and suspected assassins? Didn’t the Commission also find that the Artur Brothers visited and held several meetings at State House with senior government officials? If those foreign crooks could access State House with all the security and hold meetings there, why do you say that the Mungiki could not?

Uhuru, Muthaura, Nguyayi and Thuita stated that the Mungiki are a criminal gang. They asserted that Uhuru, Muthaura and Co couldn’t hold meetings with the sect. Yet Nguyayi admitted holding a dozen or so meetings with Mungiki leaders at the Jacaranda hotel in Nairobi. Who owns the Jacaranda hotel? Nguyayi admitted discussing the Naivasha killings with Mungiki. He gave them money. Nguyayi was evasive. He wasn’t persuasive.

Here is an assistant minister testifying under oath that he held numerous meetings with a criminal gang, discussed serious criminal plots and even gave gang members money, yet none of the gang members he met has been arrested and prosecuted. What message does that send to the court and Kenyans? That the culture of impunity is still pervasive and that some of those testifying at The Hague represent that culture.

Another interesting nugget came from Muthaura’s public statement. He claimed to be 65 years’ old and that he has ‘been married to the same woman for the past 52 years.’ Congratulations ambassador; you deserve a medal. Except for a minor detail sir. Does that mean you got married at 8? Is that possible or did you forget to calibrate your numbers to fit the illegitimate extensions of your employment contracts? I’m sure the court took note. Unfortunately, it’s such minor details that end up ensnaring powerful people like you sir!

Finally, take the claim that Mungiki members did not and could not access the Nairobi Club. How would Uhuru, Muthaura and Thuita know that? They aren’t employees of the Club. To enter the Nairobi Club, one needs to be a member or be a visitor of a member. Uhuru is a member. He is allowed to invite any number of visitors to the Club and they wouldn’t be prevented from accessing the Club. Names of visitors aren’t recorded. As well, senior government officials routinely use mobile phones within the Club. No Club official would dare stop them.

So, politically, Uhuru has effectively spoken to and rallied his base. He has also inflicted fatal damage to Raila Odinga’s image and prospects in Central Province. But legally speaking, Uhuru hasn’t acquitted himself.

Mr. Miguna is a Barrister & Solicitor in Canada. He is also an Advocate of the High Court of Kenya.

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