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Saturday, September 24, 2011

Battle to save Muthaura

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.
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
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

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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.
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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.
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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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