George Thuo, a former Member of Parliament for Juja constituency, died suddenly on Sunday while drinking with friends. As well as being a prominent businessman, Thuo was a Chief Whip in the previous Parliament.
During the ICC Confirmation proceedings, George Thuo gave a statement to the Defence in the case concerning Uhuru Kenyatta, Francis Muthaura and Hussein Ali (see paragraph 219 of the Confirmation Decision).
The Ruto/Sang Trial Chamber ordered that the victim applications of several OTP witnesses (which make them dual-status witnesses) should be confidentially disclosed to the parties.
The Trial Chamber also allowed the Common Legal Representative to prepare Witness 526- who recently completed her testimony- for purposes of examining her in court regarding victims’ interests. The CLR made this request because Witness 526 has a special status as both a victim and a witness
The Kenyatta defence applied for their client to be excused from continuous attendance at his trial. The application provides for Kenyatta’s physical presence at the opening and closing of the trial; but in any other situation where the court requires his presence, he would appear via video-link.
The Trial Chamber V(B)- the Kenyatta trial chamber- allowed the Prosecutor to disclose a less redacted version of witness 232’s victim application.
The same Trial Chamber refused the defence request an adjournment of the trial in order to ‘develop’ software and technology that could be used to analyse data from mobile phone records.
The Prosecutor in the Kenyatta case sought permission to add 2 more witnesses to her case. This follows the withdrawal of witness 426. The two witnesses are referred to as P-066 (who will testify to the nature and extent of sexual violence in the context of the Kenyatta charges) and P-548 (a Mungiki insider testifying as to the alleged Mungiki link with Kenyatta, coordination and organisation of attacks).
The CLR asked the Court to grant the Prosecutor’s request to add witnesses.
The VPRS gave its fifth report on the status of victims in the Kenyatta case.
In her opening statement, Fatou Bensouda, warned people allegedly bribing and intimidating ICC witnesses that her office was investigating.
Almost a week later, a local daily ran a story in which they detailed how a group was tracking down ICC witnesses, luring them out of hiding and offering them money to ‘forget’ their testimony. One passage, in particular, caught my eye:
“Another [alleged prosecution witness] claimed he quit the ICC train after he was told that his elderly mother was ailing and might die in his absence…[t]he man from Uasin Gishu County returned to Kenya late last month.“
It had echoes of the fate of a previous case involving Bernard Kiriinya, a police officer who was a witness to Police extra-judicial executions. Bernard thought he was safe hiding out with local Human Rights groups and telling them his chilling story. Unfortunately, in the Kenya Police, like in the Brazilian Police, ‘The System’ of police executioners takes care of its traitors.
Reports of what happened to Bernard Kiriinya conflict: some sources said Kiriinya came out of hiding to help his family move to safety, others claim he left his safe house after a visit from a friend while another allegation was that he was lured out by a phone call telling him that one of his children was either seriously ill or had been involved in an accident (like I said, the reports vary). What is unanimously agreed is that when Kiriinya came out of hiding, he got shot through the head.
Fortunately (if indeed bribery is good fortune), unlike in Kiriinya’s case, it seems the supposed witness hunters in the ICC Kenya cases are using the carrot rather than the stick to silence their prey.
The Kenyatta defence filed its observations on the impact of the Prosecutor’s disclosure and investigations on their ability to prepare a defence for trial. The defence team felt that the Prosecutor’s actions forced them to unnecessarily expend enormous investigatory resources and time (due to the volume of disclosure). They also repeated the allegation that the Prosecutor’s case has fundamentally changed from what she presented to the Pre-Trial chamber. They accuse the Prosecutor of doing so in order to shore up her case following the withdrawal of OTP-4 (the witness who changed his story about key meetings Kenyatta and Muthaura were alleged to have attended).
One new allegation the defence complained about is of a meeting with an intermediary and Mungiki members alleged to have taken place at Marble Arch Hotel on Tom Mboya St. in Nairobi. The defence wants the Prosecutor to be clearer about the details of the meeting; defence investigators will need to gather relevant information.
Marble Arch Hotel. Image Copyright nairobicity.com
The Defence team was also concerned about an older allegation, the ‘Nairobi Club’ meeting. They feel that the Prosecutor’s description of the meeting and the date on which it took place have become vague and unclear, making it difficult to challenge or answer this allegation.
Nairobi Club Lower Lounge. Copyright Nairobi Club
The defence felt that the supposedly fresh allegations, inserted after ‘unbridled’ Prosecution investigations and disclosed at the last minute to the defence, infringed the fair trial rights of the accused. The Kenyatta defence also pointed to the list of witnesses (expanded after the confirmation proceedings) and the number of witnesses and documents still to be disclosed to them. As a result, they asked the court to vacate the trial date.
The Muthaura defence also wanted the trial date pushed forward, and made additional submissions (they already argued the same point at the Status Conference) to the court pointing out that certain audio recordings that needed to be translated before being disclosed to them are not yet available and are not likely to be available before the April trial date.
Not everyone who can bear witness to what really happened during post-election violence is alive to do so. This BBC programme talks about those Mungiki members who began to ‘disappear’ (i.e. were brutally executed) shortly after the 2008 violence. It also has a unique angle as the reporter interviews one of the widows of the disappeared- most of the interviews I’ve seen on the issue have been with colleagues of the deceased, or with civil society activists seeking the truth behind the killings.
The Muthaura defence is upset with the Prosecutor’s officer. According to an application for sanctions that the defence team filed, members of the OTP revealed names of defence witnesses to several prosecution witnesses during interviews and thus ‘put the safety and security of critical defence witnesses in jeopardy.’ According to the allegation, one such incident occurred during an interview with a prosecution witness. The interviewee suggested that an individual was a defence witness; the OTP interviewer allegedly confirmed the witness’s guess. The application further alleges that the Prosecutor failed to regulate her officers in the conduct of their duties and that the Prosecution Counsel are ‘high-handed’ in dealing with the defence. The Muthaura defence wants the court to get an explanation from the OTP as to the conduct of its officers and, if appropriate, mete out appropriate sanctions. The application also asks for a Code of Ethics to be promulgated for the Prosecutor.
The Prosecutor responded to the application, suggesting that the defence had written ‘highly charged rhetoric’ into the application. She argues that the allegations are untrue: the prosecution witnesses already knew the defence witnesses before the interview. She asks the court to dismiss the ‘misleading’ application.
Reading through the two filings (witness names are blanked out), it is easy to deduce that the Prosecution and Defence witnesses in question are alleged Mungiki members. Given that both parties’ cases rely a whole lot on who met (or did not meet) with Mungiki and the credibility of defence and prosecution Mungiki insider witnesses, it’s not surprising that things will get tetchy as the case goes on. The Prosecutor’s unsubtle remarks in her response about attempted bribery and coercion of her witnesses only add fuel to the fire. More will surely come…
Mungiki and its leadership feature prominently in one of the ICC cases (Kenyatta/Muthaura). Specifically, the trial will focus intensely on meetings that were or were not held between Mungiki and the Defendants, venues of the alleged meetings and what was discussed during those alleged meetings. And then there is the question of the involvement of Mungiki in perpetrating Post-Election Violence.
This interesting blog post by Jacob Rasmussen talks about the re-surgence of the movement, possible internal divisions and whether Mungiki has truly reformed since its heyday 5 years ago (before the brutal police crackdown and Maina Njenga’s epiphany).