Anger and frustration greeted International Criminal Court Prosecutor Luis Moreno-Ocampo’s disclosure of his last bundle of evidence against three eminent Kenyans facing crimes against humanity cases at The Hague.
Sources told the Sunday Nation that President Kibaki and his allies were on Saturday furious over the allegations that State House facilitated the post-election violence.
State House has denied the allegations.
The prosecutor’s State House allegations are being interpreted in some quarters as targeting its chief tenant, the President. Notably, one of the suspects, Head of Public Service Francis Muthaura is the President’s permanent secretary and confidant.
However, Mr Moreno-Ocampo is on record saying that he had no evidence linking President Kibaki and Prime Minister Raila Odinga to the violence.
The disclosure late on Friday set off crisis meetings by defence lawyers who seemed to have been taken by surprise by Mr Moreno-Ocampo’s latest evidence. Our inquiries returned a picture of disillusionment by those around Deputy Prime Minister Uhuru Kenyatta, Mr Muthaura and Post-Master General Hussein Ali.
The prosecutor seems to have caught the suspects and their defence teams off-guard when he confronted them with new evidence only a few days to the confirmation hearings next month, effectively returning them to the drawing board.
A source at State House told the Sunday Nation that the “mood had changed” in the official presidential residence following Mr Moreno-Ocampo’s Friday allegations (Read: Dossier links State House to chaos) that the place was used as a base of planning retaliatory attacks by Mungiki in Nakuru and Naivasha during the post-election violence.
Besides, the prosecutor’s narrative took a dramatic turn when it appeared to implicate Kenya’s military in the 2008 post-election violence saying that Mungiki members were transported from State House to Naivasha in military trucks.
There were strong indications that the defence teams may apply for more time to review the new evidence ahead of the confirmation hearings.
“The case has fundamentally changed. We have to change tack because Mr Moreno-Ocampo has shifted goal posts and radically altered his prosecution theory in this case,” said a source close to one of the suspects who spoke under the cover of anonymity because of the sensitivity of the matter.
He pointed out that the prosecutor seemed determined to push the case to trial.
Already, Mr Kenyatta and Maj-Gen Ali’s lawyer’s who have lost a long list of battles with the prosecutor in the past couple of months, have cried foul over the process claiming it was being used to “rubber-stamp” charges against the suspects.
A picture emerges in which successes of defence teams have been decreasing in the run up to the confirmation of charges hearings, an issue that is causing discomfort.
Just last week, they lost the battle to have the number of witnesses increased from two.
The suspects’ effort to have the hours accorded to the witnesses increased was also rejected.
Earlier, an application by lawyers for Eldoret North William Ruto and Tinderet MP Henry Kosgey to have the hearings postponed was defeated. Moreover, Judge Ekaterina Frendiflova has so far not allowed any application for leave of appeal.
“The order of the single judge (on the witness limit) will significantly affect the outcome of the trial in the sense that such a restriction upon the defence to counter the evidence of the prosecutor using persuasive, probative live testimony risks turning the confirmation process into a rubber-stamping of the charges against the suspects,” protested Mr Kenyatta’s lawyers, Mr Steven Kay and Ms Gillian Higgins.
They accused the court of handling the matter as if it had already been decided on before those affected would make their contributions, leaving them with no option but to accept the outcome.
“The confirmation hearing should not be treated as a fait accompli,” they said.
Perhaps as a sign of the frustration, one of Maj Gen Ali’s lawyers, Mr Otachi Bw’ Onwon’ga, has questioned the command responsibility doctrine as applied by international tribunals and the calibre and sources of evidence accepted.
He said evidence can include diaries, letters and press reports which can be used to sanction suspects.
Confirmation hearings for Mr Kenyatta, Mr Muthaura and Maj Gen Ali are set for September 21 to October 11 and the court has indicated the decision on whether the cases will be confirmed will be reached two months after the hearings.
The other three suspects, Mr Ruto, Mr Kosgey and Mr Joshua arap Sang, will have their confirmation hearings from September 1, 2011.
Mr Kenyatta’s political career might be in the balance if the case is confirmed. The same fate would befall Mr Ruto and Mr Kosgey.
Mr Kenyatta and Mr Ruto have declared their intentions to contest the presidency, with Mr Kenyatta touted as President Kibaki’s heir apparent by the central Kenya power elite.
Sources close to the defence teams indicated that there were considerable differences between the evidence the prosecutor submitted in his applications seeking permission to investigate the Kenyan case and the one released on Friday.
In his last batch of evidence, the prosecutor has refined the controversial issue of alleged meetings between the Mungiki criminal gang, Mr Kenyatta and Mr Muthaura.
Whereas in the past he spoke of the meetings being held to plan retaliatory attacks before the 2007 election he now says the raids occurred after the polls.
In the prosecutor’s application of December 15, last year, he alleged that there was lack of police intervention before, during and after the attacks in Nakuru and Naivasha.
Now the prosecution seems to suggest that the police intervention was inadequate.
Uniforms and weapons
For the first time, the prosecution alleges that Mr Muthaura together with Mr Kenyatta provided uniforms and weapons to the Mungiki.
One of the new pieces of evidence alleges that after the election, the police under Maj-Gen Ali’s leadership killed several Mungiki leaders with the intention of eliminating evidence.
“Police specifically targeted Mungiki leaders with knowledge of the involvement of Mr Kenyatta and other PNU politicians in the planning of the post-election violence and reported to senior Kenya Police officers, including Ali,” alleges the prosecutor.
Mr Kenyatta is accused of facilitating Mungiki gangs to organise retaliatory attacks against perceived ODM supporters in the Rift Valley.
It is alleged that the primary purpose of the attacks was to strengthen the PNU hold on power after the swearing-in of the President.
It is further alleged that the recruitment, mobilisation and payment of pro-PNU youth to participate in the retaliatory attacks in Naivasha and Nakuru were carried out in Kanu offices. Mr Kenyatta is the Kanu chairman.
The ICC prosecutor claims that Mr Kenyatta specifically tasked a former Kanu MP to organise the Nakuru operations, thereby placing the Mungiki under a responsible command.
“He directly provided funding for Mungiki operations during the post-election violence or provided information as to where to secure funding. In preparation for the attacks, Mr Kenyatta was also responsible for arming and providing transportation for pro-PNU youth.”
Mr Moreno-Ocampo alleges that, Mr Ruto and Mr Kosgey were in charge of a network with military structure which planned financed the eviction of the Kikuyu, Kamba and Kisii from in Rift Valley in the 2008 post-election violence.