writes Leo Odera Omolo
Thousands of Kenya who glued their eyes on Television sets eagerly waiting to see how the senior most top government officials would react to questions put to them by the trial judges at the Hague.
To their disbelief, the three top official who included the Deputy Prime Minister and Minister for Finance Uhuru Muigai Kenyatta, the Head of Public Service and the Secretary to the Cabinet Ambassador Francis Muthaura and the former Commissioner of Police Maj-Gen Mohamed Husssein Ali finaly appeared before judges accompanied by batteries of highly esteemed criminal lawyers from Great Britain, Canada and Kenya.
But back at home in Kenya is mounting opinion that the three must step aside and relinquished their offices while awaiting for their eventual trial. Recent speeches in a series of rallies conducted by some of them showed to total defiance on thee part to that effect, particularly the Deputy Prime Minster Uhuru Kenyatta who has arrogantly and repeatedly insisted that he would continue working as normal.
Kenyans who gave interviews to the various TV ,radio and newspaper were unanimous that now that the three have appeared before a court of law on serious criminal charges against humanity, they must step aside and wait until the end of their trial. If found not gulty then they will eventually be reinstated on their jobs respectively.
This is the first time when President Kibaki’s allies appeared before the International Criminal Court to answer to accusations of crimes against humanity. The crimes were allegedly committed to crush opposition protests against his 2007 disputed re-election.
Deputy Prime Minister Uhuru Kenyatta, Head of Civil Service Francis Muthaura and Postmaster General Hussein Ali, who was the police chief during the 2007/2008 post-election violence, made their initial appearance at The Hague Friday.
They appeared only hours before the United Nations Security Council in New York met to deliberate on Kenya’s request for a deferral of the cases by a year.
The unsettling eventuality, of his trusted aides being hauled before a foreign court on alleged international crimes that President Kibaki had fought so hard to forestall, including a plea to the UN Security Council and a challenge to ICC’s jurisdiction, came to pass.
Mr Muthaura, Mr Uhuru and Maj- Gen (Rtd) Ali are alleged to have directed police and Mungiki attacks on ODM supporters between January 24 and January 30, 2008, in Nakuru and Naivasha towns, to suppress protests sparked by the declaration of President Kibaki as winner of the disputed December 27, 2007 presidential vote.
Same Court
Eldoeret North MP, William Ruto, Tinderet MP, Henry Kosgey, and Kass FM radio presenter, Joshua arap Sang, appeared before the same court on Thursday.
Muthaura, Ali and Uhuru faced five counts of crimes against humanity – murder, forcible transfer of populations, rape, other inhumane acts, and persecution.
Confirmation of charges hearings would be on September 21. A status conference will be held on April 18, at which the prosecutor will make available to the defence teams the evidence he has against the three.
The ICC issued a stern warning to the trio, just like it did to Mr Ruto, Mr Kosgey and Mr Sang, that they risked arrest if they sustained statements that could trigger fresh violence.
On The Radar
Presiding judge of Pre-Trial Chamber II Justice Ekaterina Trendafilova though did not mention the particular individuals on the radar for hate speech, only noting the caution was based on reports in the Kenyan Press.
In an apparent reference to the anti-ICC campaigns preceding The Hague visit, she warned the trio the court could take the “drastic measures” to substitute summonses with arrest warrants.
“I want to reiterate the concern of the Chamber also raised in yesterday’s proceedings that it came to the knowledge of the Chamber by way of following some articles in the Kenyan newspapers that there are some movements towards triggering fresh violence by way of delivering some dangerous speeches,’’ said Lady Justice Trendafilova.
She added: “I would like to remind the suspects — and I’m not referring to anyone in particular, but this is a general point to be made to all the suspects — that such type of action could be perceived as constituting the breach of one of the conditions set out in the summonses to appear: Namely, to continue committing crimes within the jurisdiction of the Court. Accordingly, this might prompt the Chamber to replace the summonses to appear with warrants of arrest.”
But Muthaura rushed to clear himself because he did not want to share in the collective blame widely seen as targeting politicians, who had whipped up anti-ICC rhetoric in rallies prior to The Hague appearance.
Adverse Comments
Through his British lawyer, Karim Ahmad Khan, Muthaura told the court he had not made any adverse comments and reiterated his commitment to obey the ICC conditions.
“There is the impression created that some adverse comments have been spoken by Ambassador Muthaura. I don’t want the public to think in any way that anything has been said or done by Muthaura to that effect. I want to assure of his commitment to the conditions set out by the court,” Khan said.
Justice Trendafilova clarified she was not referring to anyone in particular but that was a general caution to all the suspects. She, however, acknowledged the assurance by Muthaura and his “desire to make that clear to the public”.
The three suspects were calm and responded only to the questions put to them, unlike the bid by Ruto and Sang the previous day to raise issues they were not happy about.
Yesterday, it was the defence teams, foreigners among each team, who did most of the talking, directing jibes at Moreno-Ocampo.
Possible Unrest
Ali’s lawyer protested at “extra-judicial comments” by Moreno-Ocampo in Press briefings, such as reference to “possible unrest in Kenya”.
“It is not helpful when the prosecutor makes the extra- judicial comments,” he said.
They sought gag orders against the prosecutor, but the judges said they would decide on the matter while determining the pending application in 21 days.
The lawyer said there ought to be an “understanding between the parties” on how the Press is going to be addressed in the arena.
Earlier Muthaura, Uhuru and Ali were asked to identify themselves, before a court official read out the charges to each one of them. Thereafter the presiding judge informed them of their rights.
Muthaura stared expressionless, as the court official read out the charges to him, but leaned back and sighed as the list went on.
Ali followed proceedings with his right hand resting against the side of his cheek. He is accused of being criminally responsible by contributing to crimes committed against groups of persons, unlike his two co-accused alleged to be indirect co-perpetrators.
Uhuru said he had been informed of the charges against him, through “some press release from the prosecutor’s office” but he acknowledged subsequently a formal notification was delivered from the ICC registrar.
In an uncanny coincidence with history, Uhuru was facing the international crimes charges at The Hague on a date on which his father, the late President Jomo Kenyatta was jailed by colonialists. Kenyatta was jailed for seven years on April 8, 1953, on a Wednesday, after the infamous Kapenguria Six trials. Jomo Kenyatta was that year sentenced to seven years hard labour for his role in the Mau Mau freedom movement.
Different Positions
The court arrangement was slightly different, with Muthaura, Uhuru and Ali sitting in different positions, each with his defence lawyers. Muthaura sat on the left of the judges’ bench with Ali on the side, and Uhuru a row behind.
Ruto, Sang and Kosgey sat together on Thursday.
Earlier, Ali was the first to arrive at the court accompanied by his advocates. Muthaura, who was accompanied by his wife, followed. Uhuru came later holding hands with his wife.
Ruto and Sang were at The Hague in solidarity with their co-accused. But Kosgey was absent.
After the session, the three joined other MPs accompanying them to sing the National Anthem.
The defence lawyers made applications to press for the faster disclosure of the evidence the prosecutor intends to use during confirmation of charges hearings.
And Khan, who in 2006 led the defence for former Liberian President Charles Taylor at the Special Court for Sierra Leone, said Moreno-Ocampo should disclose evidence against the suspects “at the minimum in the next hearing”.
“The filing by the Government of Kenya cannot be used to decide to slow down proceedings and prejudice our client’s right to full disclosure,” said Khan.
He was responding to the prosecutor’s remarks that full disclosure is constrained before the determination of the challenge of admissibility of the cases lodged by Kenyan Government.
Stiffer Conditions
The three serving State officers, however, left without stiffer conditions expected following Moreno-Ocampo’s protests they hold influential positions in Government.
Muthaura has stepped down from chairing the National Security Advisory Committee while Uhuru has given up his position in the Witness Protection Board.
Outside the court, Uhuru said:
“We expect nothing short of justice. We now have got the official chance to see what evidence the prosecutor has got against us. Also what we are accused of, and I have no doubt I will prove my innocence,” said Uhuru.
British lawyers Steven Kay and Gilian Kay Higgins represent Mr Kenyatta. The two defended former Yogoslav warlord Slobodan Milosevic at the International Criminal Tribunal for Yugoslavia.
Ali’s lawyers are Evans Monari and Mr Gershom Otachi.
Ends