Officials in President Mwai Kibaki’s government went to extraordinary lengths to conceal Mr Uhuru Kenyatta’s alleged involvement in the 2007/08 post-election violence, including systematically eliminating Mungiki members, according to allegations released on Monday by ICC Prosecutor Fatou Bensouda.
The allegations published on the orders of ICC Trial Chamber judges, claim that Mr Kenyatta used Mungiki members to carry out retaliatory attacks against perceived ODM supporters in Naivasha and Nakuru.
The Pre-Trial Brief (PTB) also gives the grounds on which the case against Mr Kenyatta was built before it was withdrawn on December 5 because of insufficient evidence.
The brief, originally uploaded on the ICC website, was later pulled down.
And Tuesday, the court cautioned that the initial brief contained confidential and privileged information and promised to upload a more redacted version. The new version had not been uploaded by the time of going to press last evening.
But the document had been widely circulated through social media platforms and mainstream media by the time of the caution.
Trial Chamber judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson had on December 11, 2014, issued the order after a request by the lawyer for victims, Mr Fergal Gaynor.
KILLED OR FORCIBLY DISAPPEARED
A request by Mr Kenyatta’s defence team to be allowed to respond to the brief was denied by the judges on Monday.
According to the brief, nine senior Mungiki members who had allegedly been in contact with Mr Kenyatta and his agents were either killed by police or forcibly disappeared.
“These killings and forced disappearances were part of a “clean-up” campaign to conceal the accused’s involvement in the PEV. In addition, even if the chamber concludes that these events cannot be directly attributed to the accused, they are nonetheless relevant because of the effect they have had on the witnesses who will be testifying at trial,” states the brief.
The ‘clean-up’, the prosecution said, also involved attempts to retrieve guns and police uniforms that had been distributed to Mungiki members during the violence.
“Acting through PNU intermediaries, including (Redacted) and (Redacted), the accused and other members of the common plan contacted Mungiki members and demanded the return of the materiel. Materiel not returned remained in the possession of Mungiki members to whom they were supplied,” said Ms Bensouda.
Intermediaries allegedly acting on behalf of Mr Kenyatta — including a member of his defence team and another individual purportedly based at State House — were also accused of approaching witnesses 11, 12 and 152 in February 2011.
According to the pre-trial brief, the intermediaries “attempted to enlist them (witnesses 11, 12 and 152) to identify Mungiki witnesses who would be willing to “say whatever they [the intermediaries] want” about Mr Kenyatta’s involvement in the PEV.
“The intermediaries told witnesses 11 and 12 that funds had been “set aside to buy” witnesses, and instructed them to “[l]ook for these people. We buy them”. The intermediaries stated that individuals who “volunteered to defend Uhuru, to say Uhuru… did not use the Mungikis, will be paid a large amount of money”.
The intermediaries are also said to have coached the witnesses on what they should tell Mr Kenyatta’s UK lawyers, Mr Steven Kay and Ms Gillian Higgins.
According to the prosecution, the witnesses were required to tell the lawyers that “Uhuru was not involved in any way of maybe funding those people who go and fight . . . he did not use Mungiki at all.”
In the application to have the charges against Mr Kenyatta terminated in October 2013, the defence had heavily discredited witnesses 11 and 12 accusing them of procuring witnesses for the prosecution and attempting to extort money from the accused.
JUST GET RID OF
Ms Bensouda’s brief further states that the intermediaries also conveyed a more sinister message that they would “just get rid of” those who refused to comply with the scheme to procure false testimony and that “unless a witness ... cooperated (with the scheme), he will be eliminated.”
She also alleges that there were attempts to bribe prosecution witnesses 4, 11 and 12.
Witness 4, the brief states, was tracked down some time in 2009 by a personal aide of Mr Kenyatta and a defence intermediary.
In exchange for withdrawing his testimony and agreeing not to cooperate with the ICC, says the prosecution, Witness 4 was paid substantial sums of money and land was bought for his family.
The prosecution says that the intermediaries had informed Witness 4 that if he refused to withdraw his statements, his family might be harmed.
“The intermediaries informed Witness 4 on multiple occasions that the money they paid to him originated from Mr Kenyatta,” states the brief.
Prosecution Witness 4 had been crucial at the confirmation of charges stage when the prosecution relied on his evidence but was dropped as the trial approached “in part because the bribery campaign has damaged his credibility”.