Photo/FILE Head of Public Service Francis Muthaura (left) and his defence team follow proceedings at the International Criminal Court in The Hague on September 26, 2011.
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, February 18 2012 at 21:01
Posted Saturday, February 18 2012 at 21:01
Mr Francis Muthaura, who stepped aside as Public Service boss, is asking the International Criminal Court to dismiss charges against him, arguing that the discharge of former police chief Hussein Ali — whom he is alleged to have directed during the 2008 attacks — effectively renders him innocent.
The argument by Mr Muthaura is that without the participation of the police, which was led Maj-Gen Ali, it would not have been possible for him to carry out attacks in Naivasha.
In his case, the ICC prosecutor alleged that the Naivasha attacks were as result of a common plan among Deputy Prime Minister Uhuru Kenyatta, Mr Muthaura and the former police boss.
The plan
It is alleged that in the plan the three relied on an organisation consisting of two key pillars: the police and the outlawed Mungiki criminal gang.
Prosecutor Luis Moreno-Ocampo claims that Mr Muthaura directed Maj-Gen Ali to ensure that the police allow Mungiki to operate unhindered during the attacks. (READ: Secrets of Muthaura security talks)
However, the ICC pre-trial judges cleared the former police boss of the charges after he demonstrated that the police not only actively participated in quelling the violence but were also not involved in the attacks.
Now, in his argument challenging jurisdiction before the Appeal Chambers, Mr Muthaura says that without the police element, it follows then that his alleged instructions to Mr Ali were not executed.
“Mr Muthaura’s essential contribution to the crimes was based on his alleged control over the police.
The police having been exonerated he, too, should be discharged,” his lawyers argue in their February 14 application.
Secondly, he says that without police help, it would not have been possible for Mungiki to commit crimes on the scale alleged by the prosecutor.
Mr Muthaura is represented by British lawyer Karim Khan, Gambian Essa Faal and Mr Ken Ogeto of the Kenyan Bar.
British lawyers Steven Kay and Gillian Higgins lead the defence for Mr Kenyatta.
In their joint appeal, Mr Kenyatta and Mr Muthaura have disputed the definition of organisation adopted by two pre-trial judges Ekaterina Trendafilova and Cuno Tarfusser.
They hope to persuade the appeals chamber to use the definition of organisation as articulated by dissenting judge Hans-Peter Kaul.
The main thrust of the suspects’ argument is that Mungiki does not qualify as an organisation as set out in Article 7,2(a) of the Rome Statute, the ICC mother document.
And even if Mungiki were to qualify as an organisation, the Karim group reckons that removal of the police pillar sufficiently weakens the gang’s capacity to commit the crimes.
They say that by removing the police, the Trendafilova team concluded Mungiki was the only component of the Kenyatta-Muthaura organisation.
“After removing police, the Chamber erred by not dismissing the case having determined that the Mungiki alone constituted the organisation as the Mungiki was not, without external support, capable of committing widespread or systematic attacks against a civilian population,” argues the defence.
“It was, therefore, unfair and prejudicial for the chamber to change the nature of the case from responsibility over the police to responsibility over Mungiki,” says Mr Muthaura’s defence.
The jurisdiction remains the only hope for the Ocampo Four. If The Hague quartet convinces the appeals court on the Mungiki argument, the case will come tumbling down.
Mr Ocampo has already indicated that he will await the decision on the jurisdiction challenge before instigating the trials.
Judges Trendafilova and Tarfusser said that for an entity to qualify as an organisation it must have a well-defined structure and chain of command, a mode of ensuring compliance with directives from commanders, an armed wing, control territory, regular source of income which enables it to provide key services to a section of the population.
Using this criteria, they concluded that Mungiki was a well-structured organisation under the control of Maina Njenga.More importantly, the entity’s primary mission must be committing criminal activities against civilians. But the judges held that the control of territory was not a rigid legal requirement.
However, in his dissension opinion Judge Kaul maintained that Mungiki did not qualify as an organisation because it does not bear “state-like characteristics,” a position on which the defence appeal delicately hinges.
The German judge further charged that the organisation envisaged in Article 7 must also control a significant territory of a country.
According to the prosecutor’s witnesses, the Mungiki hierarchy had Mr Njenga at the top as the chairman.
Below was the High Office which took instructions from the chairman, then the regional chairmen who reported to the High Office, and local chairmen who were Njenga’s “eyes” at the grassroots.
Mr Njenga has since denounced the movement and denied any participation in the violence. The judges were equally persuaded that Mungiki had a well-trained quasi-military wing.
In addition, they were convinced that Mungiki controlled and provided essential social services such as electricity, security and toilets in city slums.
Statements by Mr Kenyatta’s witnesses Lewis Nguyai (Kikuyu MP) and former Juja MP George Thuo helped corroborate evidence that Mungiki had access to income through extortion and collection of levies in matatu termini.
On whether crimes were Mungiki’s primary purpose, Mr Kenyatta has painted the gang as a charitable group.
“Mungiki do not have criminal activities against the civilian population as a primary purpose. Mungiki have sought to alleviate crime in Nairobi slums and invested in social programmes and campaigned against drunkenness, rent hikes, drug use and prostitution.”
Through oathing
The chamber also ruled that through oathing, there existed an effective system of ensuring compliance by Mungiki members.
The judges relied on evidence by three prosecution witnesses — some of them confessed members — as well as statements by the National Security Intelligence Service and submission by the defence counsel.
Mr Ocampo also had an academic paper by PNU advisor Peter Kagwanja titled, Power to Uhuru: Youth Identity and Generational Power Politics in Kenya’s 2002 Elections.
The paper says in 2002 Mungiki reinvented the Kikuyu idea of ituika to mobilise its “rank and file” to demand a generational transfer of power. Mr Kenyatta disowned Prof Kagwanja’s work.
Mr Kenyatta’s lawyers accuse the Trendafilova chamber of adopting an “expansive new definition” of organisation.Mr Kenyatta and Mr Muthaura say oathing or cleansing ceremonies are rituals that part of many African tribal customs and traditions practised in Kenya.
The jurisdiction case is largely a battle of wits between legal minds supporting a liberal definition of organisation against those comfortable with a more traditional interpretation.
The suspects want the court to take up a narrower, conservative definition.
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