My seven years of tribulations over ICC suspect tag

Former assistant minister Jayne Kihara was dramatically plucked from an aircraft at JFK International Airport in New York over accusations that she was involved in Kenya’s deadly post-election violence in 2008.

The former Naivasha Member of Parliament, who controversially lost the seat in the 2007 General Election, had travelled to the US to visit family and friends but her arrival apparently triggered alarm bells in security systems.

In a tell-all interview with the Sunday Nation, Mrs Kihara said the pilot spoke over the public address system that fateful November day in 2010 as the plane prepared to land at JFK to advise all passengers of an extraordinary security check.

“He said that he had instructions from security agents at the airport that upon landing, every passenger was to remain in their seats with their passport in hand until everyone had been cleared for disembarking,” Mrs Kihara said.

After the plane touched down and taxied to a stop, there was a hushed silence as two security officers walked into the plane, plucked her out as the other passengers watched in stunned silence.

“They did not immediately explain to me why they had singled me out. I was escorted through a labyrinth of corridors and up and down escalators into a room. In my mind, I thought they may have wanted to clear up the question of my passport. As an assistant minister I had been issued with a diplomatic passport but on this trip, I had since left government and was using my ordinary passport,” she said.

Little did she know that the trip to the interrogation room — where she would be detained for about 10 hours — had to do with the deadly attacks in Naivasha during the post-election violence in 2008 and tribal clashes that had occurred in Mai Mahiu before that in 2005, between herders and farmers.

By the time she got to the interrogation room, her luggage had long been removed from the belly of the aircraft. The officers would go through the suitcases with a fine-tooth comb before turning to interrogate her for an entire day.

In hand they had a report prepared by the Kenya National Commission on Human Rights (KNCHR) after the 2005 herders-farmers conflict in which she had been named as one of the inciters of violence.

She had also been accused of involvement in the 2008 post-election violence, which eventually led to cases involving prominent Kenyans at the International Criminal Court (ICC) in The Hague.

From a list of six people named by then ICC prosecutor Luis Moreno-Ocampo, only one Kenyan case remains — involving Deputy President William Ruto and journalist Joshua arap Sang — after charges against President Uhuru Kenyatta were withdrawn last December. 

Ms Kihara recalled that her name was rumoured to be one of those on a list contained in a sealed envelope the commission on post-election violence chaired by Justice Philip Waki handed over to former UN Secretary General Kofi Annan, the man who had brokered a peace deal following Kenya’s worst political violence.

The “Waki envelope”, whose contents were secret, contained the names of the individuals suspected to have been at the centre of planning the violence. It was on the basis of the suspicions raised against her that Mrs Kihara would be questioned by US federal agents for a whole day at the airport.

WHAT MY ROLE WAS

“They asked me numerous questions starting with the tribal clashes in Mai Mahiu in 2005. They actually had the report prepared by the human rights people (KNCHR). They kept asking what my role was. They would then move to the violence in Naivasha in January 2008. Back and forth we went, only taking a coffee break and a lunch break,” she said.

Mrs Kihara said she consistently told her interrogators that the authors of the report they were relying on had never given her a chance to respond and had relied on rumours and propaganda.

“I told them that had I been given a hearing, it may have changed what they were relying on quite substantially,” Mrs Kihara said.

For a brief moment, she was allowed to call her relatives and inform them about her predicament at the famous US airport.

After more than 10 hours of interrogation, she was released, but not without consequences. She had travelled on a long-term visa issued when she was an assistant minister in the Kibaki government prior to 2007.

That visa was promptly cancelled at the end of the interrogation.

However, Mrs Kihara was allowed to stay for the month-long visit she had planned, on condition that she would not leave the state of New Jersey, where some of her relatives live, without the permission of federal agents.

The politician had no option but to comply with the travel restriction.

On the day of her return to Kenya, she went through the check-in counters and immigration without incident.

But as she made her way to the waiting area, two plain clothes federal agents approached her and flashed their badges.

“They were two men, but this time, the situation was less dramatic. They escorted me to an interrogation room where we found a third agent, a woman,” she said.

They assured her that it was only a routine interview that would not take long.

“The interrogators asked me the same questions but only for a short time and then I was escorted to the plane,” she said.

ON THE BRINK

When Kenya slid towards the abyss in 2008, the African Union, backed by the UN, had sent a team to arbitrate the conflict which had been touched off by a bitterly contested battle for the presidency between Mwai Kibaki (PNU) and Raila Odinga (ODM). 

The declaration of a Kibaki victory was clouded by allegations of rigging leading to violence across the country on a scale never before witnessed in Kenya.

More than 1,000 people lost their lives and hundreds of thousands were uprooted from their homes in the ensuing battles premised on the power-struggles in Nairobi.

As Kenya tottered on the brink, the international community rushed to reconcile the protagonists in order to cool down the temperatures and end the deadly violence. Mr Annan was appointed to lead the team.

Another commission, this time headed by South African judge Johann Kriegler, was appointed to establish the truth behind the bungled election.

The Rift Valley region was the worst hit with perceived ODM supporters attacking those they thought were from the rival PNU. But in Naivasha, perceived PNU supporters were said to have organised retaliatory attacks.

Mrs Kihara was the Naivasha parliamentary incumbent with John Mututho, now chairman of the National Authority for Campaign against Alcohol and Drug Abuse, her main challenger. Both would later be mentioned in commission reports and ICC documents for allegedly playing a role in the violence.

Mrs Kihara told the Sunday Nation that she had hoped the Waki Commission would seek her testimony over the violence that rocked Naivasha — the area she had represented until 2007 after winning a by-election following the death of her husband Paul Kihara, who was the MP in 2003.

“I realised as time wore on that no-one had asked for my side of the story,” Mrs Kihara said.

Although the KNCHR had accused her of causing violence, she believed that the Waki team, with its international stature, would afford her a hearing.

She also knew that they were partly relying on information collected by the KNCHR, which worried her to the bone since she already had a history with the human rights team.

“I was the accused. The stories they were told about me had been carefully constructed by my known political rivals who offered bribes to security chiefs and police officers. They did this in conjunction with human rights groups who are not themselves qualified investigators. They ended up with contorted information, rumours, innuendo and conjecture that they presented as the gospel truth,” Mrs Kihara said.

The former MP said that shortly before On the Brink of the Precipice, the KNCHR report on the post-election violence, was published, she had learnt that her name was among those listed as having played a role in the violence.

“I made every possible attempt to get heard but it was too late. The (KNHCR) report was published with my name in it and as before, without anyone caring to listen to my side of the story,” she said.

Subsequently, Mrs Kihara said she made feverish attempts to present her statement to the Waki Commission. One day, she even burst into a KNCHR meeting presided over by then Justice minister Mutula Kilonzo in the hope that she would get a hearing. It was a public forum but commission officials, she said, quickly whisked her away and handed her over to an officer to hear her matter.

“By then, there was furore since the report had already been published and what had been left for me was to issue media statements,” Mrs Kihara said.

It was clear during the interview that almost seven years later, she is still bitter about the report.

“The one question that the commission and its representatives were never able to answer is why no one cared about my rights. What human rights were they defending?”

The formation of the Waki Commission gave Mrs Kihara a glimmer of hope that finally, someone would listen to her. As it turned out, she said, the commission kept holding meetings, many of them in camera, without a word to her. 

Towards the end of the life of the commission, Mrs Kihara was contacted by one of the investigators, Mr George Morara and requested to fly to Mombasa where the team was supposedly writing its report.

“I told them that as long as they would meet my expenses and those of my lawyer, I was willing to go to Mombasa. My reasoning was that they had been to many other parts of the country, Nairobi and Naivasha included, during which time they could have invited me but did not. To ask me to go to Mombasa required then that they indulge me and meet my expenses,” she said.

The investigator promised to get back as soon as he had consulted. When he called back, he said that Justice Waki was scheduled to fly to Nairobi for other business and would meet her there. The meeting never took place.

Instead, an investigator would later take a statement from Mrs Kihara and her lawyer C. N. Kihara (no relation) at a restaurant in the city centre in October 2008.

The accusations were that she had on December 25, 2007, bought 200 pangas at a supermarket in Nakuru for distribution to attackers, that she had held at least two meetings to plan violence in Karagita and at a restaurant in Naivasha town and that she had instructed that non-Kikuyus who did not vote for her be evicted.

She responded that she was at different places on the dates she was said to have been planning violence and gave a detailed account of where she was and what she was doing.

On Christmas Day 2007, for example, she said she had spent nearly the entire day at PNU headquarters in Nairobi collecting credentials for her agents and sorting out last-minute issues before driving to Naivasha late in the day.

“To my utter dismay, shock and disbelief, Justice Waki and his team handed over their report the next day. I, therefore, have every reason to believe that my statement was filed away and in all likelihood, was not considered.

“I doubt anyway that they would have considered it overnight and weighed it before turning in their report the following day,” Mrs Kihara said.

She believes that the fact that the KNCHR had not listened to her side of the story and that the Waki Commission may never have considered her statement, paved the way for her encounter with the ICC, a journey she described as a very lonely six years.

“The Waki report practically reproduced what the KNCHR report had. That would inevitably mark the beginning of my long nightmares that, like I said before, were carefully constructed by my known political rivals and some human rights activists in tow. It should never have been believed,” Mrs Kihara said.

Next week: Mrs Kihara’s role in The ICC intrigues and why the post-election violence continues to haunt her.