Muthaura witness asked reason he gave differing evidence to Waki team

A defence witness was on Monday challenged by The Hague judge to explain the contradiction on evidence relating to intelligence information on impending attacks in Naivasha at the height of post election violence.

Judge Ekaterina Trendafilova asked former Naivasha District Commissioner Katee Mwanza—the first witness for Civil Service boss Francis Muthaura— to explain the reason for giving contradicting evidence to the ICC from what he had stated before the Waki Commission.

Referring to the transcripts of the Waki Commission report, she submitted that Mr Mwanza, in a reply to Justice Philip Waki during the CIPEV sittings, had said they received some intelligence about those behind the demonstrations in Naivasha that erupted into violence.

“ Why did you make this statement that differs from the one you gave to the Waki Commission?” she asked.

Referring to the Waki Commission report still, Judge Trendafilova asked Mr Mwanza to tell the court the persons who were keeping him busy addressing a group of demonstrators near his office in Naivasha on January 27 while some unnamed person was leading a different group in blocking the Nakuru-Nairobi high way.

Mr Mwanza said his security team did not receive intelligence information in a formal manner that could have prompted them to take emergency measures to stop the attacks.

“There are formal ways of receiving information especially from the National Security Intelligence Services. Then there is some that is not formal; just out of interaction. Some is not formal. I want to make it clear that I did not receive formal intelligence. I said we received some intelligence which led a to meeting of January 9, 2009. It was not formal,” he said.

The witness who is now the Kilifi DC, was also prompted by the Judge Ekaterina to explain the difference in the evidence he gave relating to some unnamed person who kept him addressing demonstrators near his office on January 27, 2008 while a separate group was erecting road blocks along the Nakuru-Nairobi high way attacking travellers.

“Who was engaging you to talk to demonstrators while another group was committing crimes elsewhere? Who were these people?” she asked.

In reply, Mr Mwanza said: “As I was busy talking to demonstrators, somebody was telling others ‘No.’ There was another group elsewhere. Members of public agreed to remove stones while somebody else was telling the public to return the stones. Some at the back of my vehicle told me so.”

The Kilifi District Commissioner was being cross-examined by the prosecution lawyers, the defence and the judges as the hearings for confirmation of judges against Mr Muthaura, Deputy Prime Minister Uhuru Kenyatta and Postmaster General Hussein Ali entered the fourth day.

Mr Muthaura has also lined up Foreign Affairs permanent secretary Thuita Mwangi as his second witness.

During cross-examination by prosecuting lawyer Adeboye Akingbolahan, Mr Mwanza said the security in the district never discussed a “shoot to kill order” but talked of “use of reasonable force”.

He also said that the violence in Naivasha was only extensive on the first day – January 27, 2008. He added that the second day was about fear and rumours about people evicting others.

He added that he had mentioned 50 people were killed in Naivasha during the violence not after adding that there was also widespread insecurity in neighbouring Nakuru.

Mr Mwanza also said that the majority of those killed were Luos – 19 of whom were killed during the arson attack.

He however added that there other deaths involving persons of other ethnicity.

“I can roughly remember all the 19 who died on the arson incident were Luos, 8 to 9 Kikuyus were killed in Naivasha and then other 8 or so Luos killed outside the area where unfortunate incident of arson occurred,” said Mr Mwanza.

The victims’ lawyer Morris Anyah asked Mr Mwanza his relationship with Mr Muthaura. He answered that he had known Mr Muthaura since he was appointed as head of public service but added that he did not know him personally.

Mr Mwanza told Mr Anyah minutes of the meetings of the Naivasha district security and intelligence committee were availed to the Waki commission added that once he left the station he left them there.

The witness told the court that the first groups of IDPs came from other parts of the country in the second week of January 2008 adding that there were no IDPs in Naivasha before then. He added that most of those displaced in Naivasha were Luos and lost property through looting and arson.

“I suspect the mobs that burned down property belonging to the Luos were Kikuyu. There was no way Luos would have burnt their own houses,” Mr Mwanza said.

He however added that he was not aware that there were any persons who were inciting the attackers. He also said that he does not have specifics on the charges facing the three suspects.

Anyah: Were the arsonists a rowdy crowd? Transcript that records what you said in court. What ethnicity were members of that mob?

Mwanza: On suspicion, they were Kikuyus. I don’t think Luos could have killed their fellow tribesmen

Anyah: Were they arrested and prosecuted?

Mwanza: They could have been among the 150 arrested and prosecuted.

Anyah: Do you the charges brought against them?

Mwanza: I know they were prosecuted.

Anyah: You said Kikuyu were fighting Luos and Kalenjins. Majority of the people from Nyanza did not have houses of their own. They were at the mercy of overwhelming Kikuyu majority

Mwanza: I said people who rented the houses were at the mercy of attackers. If we could not step in, there could be a massacre.

Anyah: What are the suspects charged with? You flew miles of kilometres from Kenya to say you don’t know the charges that were brought against these people?

Mwanza: I came to say what I know; the truth.

Asked by Mr Anyah whether there was an attempt to replace the head of the GK Prison in Naivasha, who was a Luo, with a Meru, Mr Mwanza said that he thought he was transferred, but after the violence.

The witness also denied that he was aware of any displaced persons who were shot and killed by police officers. He added that the violence was a reaction to the eruption of emotions between the communities.

“We really had to use reasonable force due to the intensity but there was no intention to kill anyone. Our Police officers shot people, not to kill, but to immobilise them,” said Mr Mwanza.

Mr Mwanza denied having close relations with Mr Muthaura and described himself as a very junior officer.”

“The nearest I have got to Mr Muthaura was when he attended a resettling programme of IDPs in Molo,” said Mr Mwanza.

“Generally there was a lot of tension in the country. The tension was about the disputed presidential results which culminated in violence,” he said.

He recalled that Naivasha was calm during the election campaigns because the two rivals (Mrs Jayne Kihara and Mr John Mututho) were from the same community.

“Naivasha was very calm. Calm indeed. There was tension between the two candidates, but it was at individual level because they belonged to the same community.

“When the presidential elections were announced, he said, there was jubilation on the ground without any indications of violence.

“After the announcement on December 30, 2007 there was jubilation and situation was OK.”

The mood was ok although in other parts in the Rift Valley we could hear fires had erupted which led to a stream of refugees.”

“Naivasha was very safe and they found refuge in Naivasha. They were largely Kikuyus, almost 99 per cent. They chose Naivasha because it was very safe and because the largest group of people living in Naivasha was the Kikuyu,” he went on to narrate.

He also told the court that around January 25 and 27, 2008, he was compelled to move his family from Nakuru due to the escalating violence. “Nakuru was becoming too insecure.”

On his way to Naivasha on January 27 in the company of his family, he said got a call from his deputy Gideon Oyagi telling him there were demonstrations in Naivasha. He added that he contacted other members of the district security and intelligence committee and requested them that they provide more officers in the town.

He said that the demonstrations were widespread and he could not access his house to drop his family before he left for the town. He said that he addressed the demonstrators asking them what they demonstrating about.

The witness explained that the IDPs told them of how they had been attacked with some of them been killed and their property had been destroyed.

He added that the IDPs were from various districts west of Naivasha including Molo, Eldoret, Kisumu, Kipkelion, Kitale, Trans Nzoia, Narok and Bomet. He said that the stories narrated by the IDPs were likely to fire up emotions against in the locals.

Mr Mwanza started his testimony by explaining the government security and intelligence structure at the district level.

He explained that there were structures within the provincial administration to deal with security which included the district security committee as well as the state security agencies including the regular police, administration police as well as KWS officers.

Mr Mwanza said members of the DSIC were drawn from different tribes.

He said he was first posted to Naivasha in January 2007 and was the DC during the 2008 post-election violence. He said that the largest number of residents in terms of population is the Kikuyu but other tribes and nationals live in Naivasha.

“Naivasha’s population was about 350,000 at the time (2007). Naivasha is highly cosmopolitan. Kikuyus occupy about 75 per cent. We also have the Maasai, the Luo, the Luhya, the Kalenjins, the Kisiis and other tribes in Kenya. We also have other nationals especially investors from Europe, Asia and Africa,” he said.