International Criminal Court judges say they are convinced Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and President Kibaki met Mungiki members at State House in Nairobi.
However, State House has denied the claims and President Kibaki even sent a personal statement to the International Criminal Court (ICC) during the confirmation of charges hearings against Mr Muthaura, delinking himself from the Mungiki. (READ: Kibaki’s personal statement read in Muthaura defence)
But the judges, in their ruling on Monday, poured cold water on President Kibaki’s denial, saying that they approached his statement and that of former State House Comptroller Hyslop Ipu “with reservation” and considered that they could not be regarded as decisive in the determination of whether a Mungiki meeting never took place at State House.
“The evidence placed before the Chamber provides substantial grounds to believe that, following these preliminary contacts, Mr Muthaura and Mr Kenyatta directly participated in a number of meetings with Mungiki leaders.
In particular, the Chamber is satisfied that there are substantial grounds to believe that on 26 November 2007 a meeting was held at Nairobi State House between Mr Muthaura, Mr Kenyatta, Mungiki representatives, President Mwai Kibaki, and others,” they said in the ruling. (READ: State House and city club linked to chaos)
The judges say that the evidence presented by anonymous prosecution witnesses proved that the first of such meetings aimed at securing Mungiki support for the President was held on November 26, 2007.
The judges say that Mungiki was represented by Mr Maina Diambo and two other individuals they have blacked out on the ruling.
The PNU side was represented by President Kibaki, Mr Muthaura, Mr Kenyatta, Mr Hyslop Ipu, Mr Isaiya Kabira and Mr Stanley Murage.
Also present but whose name has been blacked out by the judges is a former central Kenya MP.
“The occurrence, purpose and subject of this meeting are established, to the requisite threshold and in considerable detail, by the statement of Witness OTP 4, who was present at this meeting as a Mungiki representative,” the judges said in the ruling.
The Mungiki demands included the cessation of extrajudicial killings of its members, the release from prison of Mr Maina Njenga and the recruitment of Kikuyu youth into the security and armed forces.
The judges said that Witness OTP 4 stated that, after hearing the Mungiki demands, the President addressed Mr Muthaura, telling him “something to the effect of: ‘You have heard what the youth want, so now it is upon you’”.
During the hearings, Mr Kenyatta and Mr Muthaura argued that the evidence from the witness should be disregarded due to inconsistencies in his testimony to the Waki Commission and that given to the ICC.
However, the judges said in their ruling that some of the inconsistencies cited by the defence were errors of omission that did not alter the substance of the evidence.
The judges said that the inconsistency raised in relation to Mr Kenyatta’s involvement in the meeting was to be “more appropriately qualified as an omission” since the witness did not state to the Waki Commission that the Deputy Prime Minister was not present at the meeting at State House.
“In regards to the difference in the time of the alleged commencement of the meeting (11am versus 11.45am), the Chamber considers this difference as minimal and as such immaterial.
“Similarly, the Chamber considers as immaterial the alleged inconsistencies in relation to the amount of money received by the witness,” the ruling reads.
The judges also say that the witness testimonies brought to the court by Mr Muthaura’s defence from youth who met President Kibaki on the same day do not contradict the prosecution witness.