The National Security Intelligence Service warned police that members of the banned Mungiki sect planned to assassinate Prime Minister Raila Odinga and Eldoret North MP William Ruto at the height of the post-election violence in January 2008, the ICC was told yesterday. Gregory Kehoe, who is representing former Police Commissioner Hussein Ali, made the disclosure to demonstrate that the intelligence provided to the police by the NSIS during the violence was not necessarily true or infallible.
He said that in this instance, the information the NSIS gave the police was not necessarily true as the assassinations did not happen. Kehoe, in discounting the NSIS intelligence reports, dismissed as "incredible, implausible and ridiculous" the evidence given by some prosecution witnesses which implied that President Kibaki was a Mungiki member. “It never happened (the assassination of Raila and Ruto). As you might know, Mr Odinga is currently the Prime Minister of Kenya and Mr Ruto is a suspect in this court,” said Kehoe while insisting NSIS intelligence briefs are based on gathered information which may or may not be true.
Kehoe rebutted the prosecution's claims that the Police Commissioner allowed Mungiki members a safe passage to Naivasha. Kehoe said the the crux of these allegations appeared to be based on the evidence of only three witnesses. He described one of the witnesses as a self-confessed member of the Mungiki sect. "He is a man who has been arrested numerous times by the police and who has a severe and an embedded dislike for the Kenya Police, so much so that he could not say any good thing about its boss," Kehoe said of the witness who is only identified as Witness no 4.
Kehoe said the second witness used by the prosecution to corroborate Witness 4 account is witness number 12 whom Deputy Prime Minister Uhuru Kenyatta's defence lawyers had already dismissed as "a criminal extortionist". Referring to this witness and with a wide grin on his face to indicate incredulity, Kehoe said: “He names everybody in the Kenyan government including President Mwai Kibaki as a Mungiki member!”
Kehoe said Ali never received any orders from the Head of Civil Service Francis Muthaura; that he never implemented such orders if they were issued and that Ali acted to contain the violence. Kehoe said that although Witness 4 testified about Mungiki's meetings with top government leaders including one allegedly held with President Kibaki at State House three weeks before the December 27, 2007 elections, a careful evaluation of his statements made at different times showed that he was not present at those meetings.
Kehoe said the witness kept mixing up the Nairobi Safari Club with Nairobi Members Club, so much so that the defence concluded he did not attend the meetings because they never took place. Moreover in all these meetings, he never mentioned Uhuru's or Ali's phone call. “How come the witness does not remember the venue of such a meeting whose effect was to elevate Mungiki into a state security agency? How could he not remember where it took place if indeed it took place?" Kehoe said.
He pointed to other inconsistencies in the witness statements — among them mention of former Juja MP George Thuo as President Kibaki's personal assistant — to show the witness could not be relied upon. Kehoe said there were call records from the prosecution showing Muthaura's call giving the alleged instructions to Ali ordering him not to impede the Mungiki members as they went to Naivasha on their retaliatory attacks.
Kehoe described Ali as "an extraordinary man of quiet dignity and honour who has given more than 30 decades of his life to public service" and who had been “thrust into the most difficult period of Kenya's history” but managed to save the country. “Without his effort there is no saying where the country would be to date hence the question, why are we here? Why is this man here?” Kehoe said.
He accused the prosecution of ignoring all the information which would have exonerated Ali including the evidence of the police response to NSIS warnings about the possibility of violence breaking out.
Kehoe said that when Ali received intelligence reports about the Naivasha attacks he instructed his subordinates to enhance security. The lawyer quoted NSIS director Michael Gichangi whom he said had testified to Ali's "pathological dislike" for the Mungiki and its ways to show there was no way Ali could have given them passage.
He said contrary to prosecution claims, Ali pursued Mungiki “before, during and after the election.” “All this evidence on Ali's role in taming the violence is available. It's just that the prosecution blinked once, twice and continued to blink, and am afraid in life when you blink like that you just do not see again,” Kehoe told the ICC Pre-Trial Chamber II.
He said Ocampo failed to prove the organisational policy of the attackers. Kehoe poked holes into the prosecution's claims that the Mungiki had travelled at night. Kehoe wondered why the sect members would have had to travel at night to launch their attack if they were operating with the knowledge of the police.
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