MP to help Uhuru fight Mungiki link

Finance minister Uhuru Kenyatta attacked the credibility of witnesses the prosecution has lined up to testify against him as he opened his battle to escape trial for crimes against humanity. (Read: Uhuru’s turn to take the stand in his own defence)

Mr Kenyatta’s defence team said that the two witnesses that the prosecution was relying on were professional extortionists who had switched camps after growing disappointed with them.

The lawyers said they had appointed an independent counsel, who identified three prosecution witnesses as individuals who had offered evidence exonerating the minister.

They subsequently changed their positions and pointed to Mr Kenyatta as the key initiator of attacks in Naivasha and Nakuru, which stunned the nation for their brutality weeks after similar killings were carried out in parts of Rift Valley, the defence team claimed.

“The evidence the prosecution is relying on is inherently flawed, unreliable, irrelevant, hearsay and or unattributable to the author or the source,” said Ms Gillian Higgins, counsel for Mr Kenyatta.

Ms Higgins claimed that analysis of the prosecution’s case pointed to contradictions in accounts of witnesses, which undermined the overall strength of the case.

The defence’s assertions on the identity of the witnesses are subject to challenge by the prosecution who will cross-examine Mr Kenyatta on Friday.

They are based on a report by a forensic investigator, Mr Gary Summers, who was retained by the defence team after they grew suspicious of the identities of the prosecution witnesses.

Ms Higgins said another defence witness, Kabete MP Lewis Nguyai, would testify that he identified the two Mungiki members who agreed to offer evidence for the Kenyatta defence team.

The agreement, the defence claimed, was that they would only be paid transport expenses.

“Not only did (the forensic investigator) confirm that the defence had correctly identified the two protected prosecution witnesses, he made the following conclusion. That it was the refusal to pay more expenses to the witnesses that led to their disenchantment. Both witnesses were knowing and willing parties to an extortion attempt on Uhuru Kenyatta in 2011. Both had attempted to pervert the course of justice by giving inculpatory (incriminating) accounts to the prosecution after giving exculpatory (exonerating) accounts to the defence.”

Mr Kenyatta, Public Service head Francis Muthaura and Postmaster-General Hussein Ali face accusations that they instigated, sponsored or facilitated the campaign of murders, deportations and rapes that took place in Naivasha and Nakuru in the last week of January 2008.

Chief prosecutor Luis Moreno-Ocampo says this was part of a campaign initiated by Mr Kenyatta to help President Kibaki’s PNU hold on to power “by any means necessary”.

MPs William Ruto and Henry Kosgey and radio journalist Joshua arap Sang face separate charges in connection with killings in other parts of Rift Valley.

Lower the stature

In her opening statement, Ms Higgins claimed that the prosecution’s evidence was undermined by so many errors that it would “lower the stature of the court” if the case was allowed to go to full trial.

The lawyer said that one witness had given contradictory accounts of Mr Kenyatta’s and Mr Muthaura’s involvement in the violence.

She said Prosecution Witness No Four claimed that Mr Kenyatta met him and another member of the Mungiki at 8pm on November 25, 2007, at a café on the ground floor of Yaya Centre, Nairobi, where he promised to take them to State House.

Ms Higgins said they had established that the last café on the ground floor of Yaya Centre closed at 6.48pm that day.

She told the chamber that the same witness had placed the meeting on the second floor of Yaya Centre in a separate statement to the Waki commission.

She said the witness’s first 13-page statement of a meeting at State House on November 26 2007 did not place Mr Kenyatta in the picture.

A second statement, she said, claimed Mr Kenyatta, Mr Muthaura and Internal Security minister George Saitoti attended a planning meeting with the Mungiki at the Nairobi Club, but he switched his account of the venue of the meeting to another establishment, the Nairobi Safari Club.

“Credibility is central,” said Ms Higgins. “We will demonstrate that the main witnesses relied on by the prosecution must be set aside as centrally flawed and thoroughly unreliable.”

There appeared to be a convergence in defence strategy between the approach taken by lawyers for Mr Muthaura and Mr Kenyatta.

Before the hearings began, the Muthaura defence team called for an independent investigation into Mr Moreno-Ocampo’s witnesses.

“(There are) strong grounds to believe that persons who may be prosecution witnesses at the confirmation hearing may have committed an offence under Article 70 of the Statute.”

Article 70 of the Rome Statute outlines offences against the administration of justice.

They include giving false testimony, presenting evidence that the party knows is false or forged and corruptly influencing a witness.

In the event of conviction, the court may impose a fine, a term of imprisonment not exceeding five years, or both.

The judges rejected that application and it is likely that the prosecution will insist that the witnesses they have lined up are not the same ones as those cited by the defence.