Uhuru fights PNU link in Hague case

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By  OLIVER MATHENGE omathenge@ke.nationmedia.com
Posted  Tuesday, October 9  2012 at  23:30

IN SUMMARY

• They argue that the prosecution’s use of the term “pro-PNU youths” as opposed to Mungiki does not accurately reflect the Pre-Trial Chamber II’s determination, “which is a fact and circumstance of the case.”
• In response, the prosecution has taken the position that the accused are seeking “materially to narrow the prosecution’s case”, in a manner inconsistent with the Pre-Trial Chamber confirmation decision.
• The prosecution also argues that the defence’s argument is based on a misreading of the decision, adding that the Pre-Trial Chamber judges did not find that all the attackers in Nakuru and Naivasha were Mungiki “for all intents and purposes.”

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Deputy Prime Minister Uhuru Kenyatta and former head of civil service Francis Muthaura have called for the deletion of references to “pro-PNU youths” appearing in their charges at the International Criminal Court (ICC).

The two argue that the prosecution has wrongly attributed crimes committed by the Mungiki to “pro-PNU youths”.

They argue that the prosecution’s use of the term “pro-PNU youths” as opposed to Mungiki does not accurately reflect the Pre-Trial Chamber II’s determination, “which is a fact and circumstance of the case.”

“The PTC (Pre-Trial Chamber) decided that there was no distinction between Mungiki and the “pro-PNU youths”. It appears that the PTC felt that for all intents and purposes, those persons “joined the Mungiki” for the specific attacks in Naivasha and Nakuru,” the two have told the court.

This has arisen in discussions between the defence of the two and prosecutor Fatou Bensouda’s team over the amended Document Containing Charges (DCC).

In response, the prosecution has taken the position that the accused are seeking “materially to narrow the prosecution’s case”, in a manner inconsistent with the Pre-Trial Chamber confirmation decision.

The prosecution also argues that the defence’s argument is based on a misreading of the decision, adding that the Pre-Trial Chamber judges did not find that all the attackers in Nakuru and Naivasha were Mungiki “for all intents and purposes.”

“Nor did the PTC reject the prosecution’s allegation that “pro-PNU youths” took part in the attacks.

Rather, the PTC addressed the distinction between the Mungiki and the pro-PNU youth, explaining as using the term “Mungiki” as shorthand to describe both Mungiki members, as well as the pro-PNU youths who perpetrated the attacks with the Mungiki members,” the prosecution argues.

The prosecution also says that if the defence’s proposal were adopted, it would materially restrict the scope of the prosecution’s case in a manner unintended by the Pre-Trial Chamber.

It adds that the evidence demonstrates that while the Mungiki was a driving force in the Nakuru and Naivasha attacks, the direct perpetrators extended beyond the sect’s ranks.

“Pro-PNU youth who were not Mungiki members also participated in the attacks, and their participation was made possible by the actions of the accused. It is for this reason that the prosecution included the term “pro-PNU youths” throughout the original DCC,” the prosecution says.

New lawyers

Meanwhile, Kenyan victims in the post-election violence cases at the ICC are set to get new lawyers as the cases move to trial next year.

The Trial Chamber V judges have asked the court’s registry to prepare a list of proposed lawyers to represent the victims before the end of the month.

The judges have also asked the registry to consult with the Office of Public Counsel for Victims and to submit a joint proposal on the “division of responsibilities and effective functioning of the common legal representation system” by next week.