It’s decision time for top Kibaki men

Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Postmaster General Hussein Ali, the second group of the Ocampo Six, will be at the International Criminal Court from Wednesday for confirmation of charges hearings, where they will confront accusations the prosecutor has brought against them.

Mr Kenyatta and Mr Muthaura are key pillars of the Kibaki administration while retired Maj-Gen Ali served as police chief before he was moved to his current position in 2009.

Own evidence

They will also present their own evidence to challenge the prosecutor claims that they planned revenge attacks against pro-ODM supporters in the Rift Valley during the 2008 post-election violence.

They will also be calling up witnesses to present their case.

Their case comes a fortnight after that of former ODM ministers William Ruto and Henry Kosgey, and radio journalist Joshua Sang. (READ: Three deny poll chaos was organised)

Judgment on whether the cases will go to full hearing is expected before Christmas. In one of the most dramatic moves, Mr Kenyatta will be taking the stand for more than three hours as his own witness.

The move by the DPM means that the prosecution and judges will have the opportunity to directly question him during cross-examination.

The move has been faulted by some Kenyan lawyers but Mr Kenyatta has decided to soldier on.

Lawyer Steven Kay, representing Mr Kenyatta, has also complained that the two witnesses allowed for each case were not enough.

“Surely if the defence want to call more evidence to combat and challenge hearsay and supposition, why can’t they? It must be for them to decide which of their rights they wish to exercise and if it delays proceedings a while to properly decide the substantial grounds issue, that is a trumping right at that stage. Or is it all just a paper exercise?” Mr Kay recently wrote in a blog.

Mr Muthaura and Maj-Gen Ali will not be taking the stand but will each call two witnesses and will have the opportunity to address the court on the first day. Mr Kenyatta’s defence will also call another witness who is yet to be identified.

The Chamber allowed Mr Kenyatta to make changes to his witness list but denied him the opportunity to add an extra one. His defence had submitted to the court that the prosecution had changed the nature of its case and he therefore had to change his witnesses.

The three suspects have also indicated that they will be challenging the jurisdiction and admissibility of their cases at the ICC. Judge Ekaterina Trendafilova has asked the three to file their applications on the challenges by Monday.

They will be attending court one week after a visit by the ICC registrar Silvana Arbia whose office is seeking to establish a field office in Kenya.

The schedule of the hearings shows that the hearings will go on until October 5 when the suspects, the prosecution and the victims’ lawyer will present their closing statements. However, as happened in the first hearings in the cases against Mr Ruto, Mr Kosgey and Mr Sang, it may end sooner.

The case is expected to be more dramatic than the previous one as it involves two key allies of President Kibaki – Mr Kenyatta and Mr Muthaura.

The case also involves sensational claims by the prosecution that members of the outlawed sect Mungiki were shuttled to State House in Nairobi and dressed in police uniforms before being transported to Naivasha and Nakuru to commit crimes.

Forcible eviction

The three are accused of being responsible for forcible eviction of civilians and murders committed in Nakuru and Naivasha. The three also face counts of rapes committed in Nakuru and other inhumane acts.

According to the prosecution, Mr Kenyatta and Mr Muthaura ensured the initiation and success of retaliatory operations to be carried out by Mungiki and pro-PNU youth.

Maj-Gen Ali, who was police boss at the time, is alleged to have given orders to his juniors not to interfere with the movement of the gangs.

The prosecution also claims that through a series of meetings held in Nairobi, including at State House, between the end of December 2007 and end of January 2008, Mr Kenyatta organised and financed retaliatory attacks by Mungiki against perceived ODM supporters in the Rift Valley.