Striking similarities between Uhuru Kenyatta’s trial at The Hague and Jomo Kenyatta’s Kapenguria case

The case against President Uhuru Kenyatta in The Hague enters a crucial stage in the next few weeks after judges asked him to appear at a special session to determine how to proceed after prosecutors submitted they do not have sufficient evidence to sustain a credible trial.

It is right that so much media attention — in Kenya and abroad — has been fixed on the case. No sitting head of state has been tried in a tribunal outside his country before.

Yet it is quite astonishing that little analysis of this matter has highlighted the remarkable similarities between the case President Kenyatta faces in The Hague and the most sensational court process Kenya has known, the trial of Mzee Jomo Kenyatta, in the hands of colonial authorities.

The parallels are quite stunning. Substitute the dates, drop 1952 and insert 2014 and you have almost the exact same circumstances: Claims, later proved true, of witnesses procured (they used that same term in the 1950s, too), to offer evidence.

EXTERNAL POWERS

Claims, since vindicated, of an overwhelming role by external powers and ultimately a process so heavily weighted in favour of the prosecution (in the case of Mzee Kenyatta), that it took up to six years before the star witness, Rawson Macharia, came forward and admitted he had been paid by the British Government to send Mzee Kenyatta and his co-accused to jail.

After an almost similar period, the star witness against the younger Kenyatta confessed before prosecutors late last year that he had lied in an attempt to have Mr Kenyatta sent to jail.

There are rich historical accounts detailing the 1952 trial of Kenya’s first president. One of the best accounts is to be found in the historian John Lonsdale’s work, Kenyatta’s trials: Breaking and Making an African nationalist.

Another scholar, Montagu Slater, details the proceedings of the case in “The Trial of Jomo Kenyatta”.

Given this rich breadth of recorded history, it is surprising that there has been little reflection on the common thread that binds these two cases of father and son.

All of the accounts of Mzee Kenyatta’s trial arrived at the same conclusion as Kenyatta’s lawyer, the eminent early nationalist Dennis Pritt, whose summing up argument was later proved exceedingly accurate.

“I would submit this is the most childishly weak case made against any man in any important trial in the history of the British empire,” he said.

Slightly over 60 years later British lawyer and Queen’s Counsel Steven Kay would describe the younger Kenyatta’s case in even stronger words terming it a fraud.

The parallels between the two trials should command at least some attention.

The various strands in the books are weaved together in the Harvard Professor Caroline Elkin’s work on pre-independence Kenya, Britain’s Gulag: The Brutal End of Empire in Kenya.

CRIMES WERE COMMITTED

From the account, it is clear that then, as now, crimes were undoubtedly committed. In the early 1950s, settlers were in panic following a string of attacks by Mau Mau insurgents on their homes.

In the plateau overlooking Naivasha, in October 1952 at a time when the colonial authorities had refused to heed nationalist demands for talks on the confiscation of land by settlers, a colonial veteran of the world wars who had settled in Kenya, Eric Bowker, was attacked in his home and killed.

A few days later, in the Aberdare Forest, another settler, Ian “Jock” Meiklejohn, was slain in a machete attack. His wife narrowly survived.

Angry settlers demanded justice. Only the arrest of Jomo Kenyatta, the purported leader of the Mau Mau, would calm the agitated British settlers.

The colonial government could simply have moved to detain Kenyatta but that would have upset critics of colonial policy in Kenya back in London.

So the authorities opted to prosecute Kenyatta along with five of his so-called deputies: Bildad Kaggia, Fred Kubai, Paul Ngei, Achieng’ Oneko, and Kung’u Karumba.

The trouble was, there was no evidence to sustain any credible prosecution against the men or to link them to the crimes which were committed by young Mau Mau “radicals” and the authorities were fully aware of that.

“From the moment Kenyatta was arrested (colonial governor Evelyn) Baring and his legal advisers knew they had little credible evidence with which to prosecute him,” writes Ms Elkins.

“Even after a tonne and half of documents, books and papers had been confiscated from Kenyatta’s home and picked apart by colonial officials, there was virtually nothing.

Ultimately, and with the slimmest of evidence, the government decided to charge Kenyatta and the others with “managing an unlawful society” or, in layman’s terms “fomenting a revolution.”

The trouble was that the colonial government had to find a way to give the case some legs.

“The evidence in hand provided no basis for a conviction, at least not under British standards of impartial justice. But this was Kenya, and the system of justice accorded to Africans had been a travesty for years. Of course, the stakes were much higher and those responsible for orchestrating Kenyatta’s trial were top-level colonial officials including Baring himself.”

Kenyatta was the real target of the colonialists and there were already several technical hitches before a trial could start.

First, since the crime was alleged to have been committed in Kiambu, he was supposed to be tried there or in the neighbouring Nairobi city.

But the colonialists feared nationalist demonstrations. So they instead took the trial to Kapenguria and, to solve the riddle of why he was being tried so far away, Kenyatta was briefly released and then arrested again and the prosecution explained that he was being tried there because that was the place of arrest!

How was the problem of a lack of evidence solved? Money, Elkins writes.

“Even with the new evidence the colonial government had a very weak case — a problem easily solved through a few well-placed bribes. In the first instance, Baring helped to fabricate, or at the very least influence, the so-called witnesses to Kenyatta’s crimes by offering them healthy financial incentives. Writing to (Secretary of State for the Colonies Oliver) Lyttleton in November 1952, he said, ‘every possible effort has been made to offer them rewards.’”

Tales of witnesses allegedly being offered bribes by prosecutors or their intermediaries have been a running theme in the case involving both the younger Kenyatta and in the William Ruto and Joshua Sang trial.

But what is most remarkable about the Mzee Kenyatta trial was the fact that the colonial officials decided to bribe the judge, too.

The man to preside over the sham trial was one Judge Ransley Thacker, QC, a former Attorney-General of Fiji, who had served 12 years in Kenya’s supreme court.

This is how Ms Elkins sums up this episode: “The aging, pot-bellied and bespectacled Thacker apparently had no qualms about selling his verdict long before the trial began. He insisted upon £20,000 to ensure a conviction, and in what must be described as his most self-incriminating move as governor, Baring complied. The bribe, in fact, did not go through the attorney-general’s office in Kenya, as others had, but rather was appropriated by Baring himself from a special Emergency fund.”

EMINENT JURISTS

That amount of £20,000 was a vast sum in those days and that was how the judge decided to convict Kenyatta and the co-accused in Criminal Case Number 1 of 1952.

Perhaps the only difference between the case at that time and today is that judges in The Hague are eminent jurists who are unlikely to fall for such shabby inducements.

In Mzee Kenyatta’s case, he was sent to prison for seven years.

The star witness, Rawson Macharia, whose evidence alone was used to jail the Kapenguria Six, was put on a flight to London immediately where he was to stay for two years at British taxpayers’ expense.

In letters which came to light when Macharia ultimately wrote his memoirs in 1991 confessing and apologising for his role, The Truth About the Trial of Jomo Kenyatta, Macharia revealed that he had been paid to offer evidence.

One letter from the Attorney-General’s Chambers in Nairobi to ASP Henderson of the Special Bureau in the Nyeri Police Training School outlined favours Macharia was to receive.

“As arranged, I would be glad if you would show this letter to (Rawson Macharia) confirming the offer made to him by the Government, which read as follows: a) An air passage to the United Kingdom £278 (b)Two years course in Local Government at a university £1,000 (c) Subsistence for his family for two years £250 - Total: £1,528.”

The letter further stated: “In the event of the above named being murdered for providing evidence, Government will undertake the maintenance of his family and the education of his two sons. At the end of the two years course in Local Government the above named will be offered a post by the Kenya Government.”

Haunted by his guilt conscience, Macharia admitted on November 22, 1958, that he had lied on oath and that his entire testimony that got Mzee convicted was false.

“I admit that my said evidence was false, and so false to my knowledge, insofar as it (implicated) any of the accused persons in the commission of the offences with which they were charged… I further state that a number of other prosecution witnesses were to my knowledge similarly procured and suborned to give false evidence for the prosecution and to the best of my knowledge and belief gave such evidence therein.”

Embarrassed colonial officials immediately ordered his arrest and he was charged with perjury.

It was a dramatic conclusion to one of the most embarrassing and scandalous legal episodes in Kenyan history, and the parallels between the case involving two generations of Kenyattas are simply striking.

But whether the perjurers in the younger Kenyatta’s case will ultimately be prosecuted, time will tell.

Dr Obuya teaches at the Kenya School of Government.