How the Kenyatta case was won

The Kenyan government’s obstruction of the ICC and intimidation of witnesses fatally undermined the Kenyatta prosecution.

By Africa Confidential 

Ultimately, it was a combination of failings by the International Criminal Court prosecutors and the government's non-cooperation that resulted in the dropping of the case against President Uhuru Kenyatta on 5 December. The ICC Office of the Prosecutor (OTP), many believe, did not mount a robust enough defence of its actions or openly resist or sufficiently investigate the wholesale intimidation of witnesses, which cost Prosecutor Fatou Bensouda her case. The following weekend, Kenyatta's supporters celebrated in the presidential strongholds. A camp for displaced people in Naivasha houses mainly Kikuyu victims of the 2007-08 post-election violence: almost eight years later, they have still not been resettled or compensated. Yet when the news that the case had been dropped came through, the eruption of celebrations there exemplifies the deep contradictions that have characterised the Kenyatta case (AC Vol 55 No 6, A year of living precariously). 

At what is widely seen as the most sacred Kikuyu shrine, at Mukurwe wa Nyagathanga, in Murang'a County, the news interrupted a ceremony and people broke into spontaneous singing and thanksgiving. For many Kenyatta supporters, the ending of the case confirmed a deeply-held belief that the President, scion of the most powerful political family in Kenya, is the anointed one, his elevation to State House the realisation of divine prophecy and the end of the case determined not by judges but by the gods. Uhuru, like his father before him, is seen as targeted by the West and the fact that he still emerged victorious taps into a deep sense of grievance that ultimately united the Kikuyu community behind him.

Bensouda has not quite given up, though. She is attempting to follow through on Trial Chamber Five's finding on 3 December that the Kenyan government was guilty of non-compliance and thus in breach of the ICC founding document, the Treaty of Rome. She is pushing for the government to be referred to the Assembly of State Parties. It is unclear what remedy she seeks, perhaps a sanction for non-compliance.

Critical evidence withheld

The prosecution's main complaint against Nairobi is its refusal to release Kenyatta's telephone and banking records. Bensouda believes they would prove direct links between Kenyatta and the Mungiki, the ethno-religious criminal militia at the heart of the violence in the Central Rift Valley towns of Naivasha and Nakuru (AC Vol 54 No 16, The crucial M-Pesa and call logs).  One of the last remaining witnesses, a self-confessed Mungiki member known as P-12, states that on 27 January, the day the Mungiki terrorised Naivasha, he spoke with Kenyatta on at least six separate occasions.

Bensouda also said that the challenges her Office had faced included harassment and intimidation of witnesses and anyone who sought to give evidence, plus a social media campaign designed to reveal the identities of protected witnesses and a 'relentless' stream of false media reports about the case.

It has not helped the Court that Kenyatta found ample support from the African Union, which declared last June that sitting heads of state should not be prosecuted while in office. He also benefited from Western reluctance to back the ICC when faced with the threat of increasing competition from China for Kenya's affections. The West also supports the role of the Kenyan armed forces in Somalia. 

The disappearance of witnesses or recantations of testimony are mainly responsible for killing off the case. The first sign of trouble came in December 2012, when Witness No.4, a lynchpin of the OTP's evidence, recanted. Witness No. 4 was revealed as James Maina Kabutu. He had claimed to have witnessed several meetings between Mungiki members and Kenyatta, the former civil service head, Francis Muthaura, and several others. Charges against Muthaura were dropped in April last year as a result of Kabutu's withdrawal. Kenyatta's lawyers then began pushing for a similar withdrawal of charges against their client.

Kabutu's story reflects the fraught ties between witnesses, victims and senior members of the Mount Kenya political establishment. A known member of Bunge la Wananchi, a group of street activists drawn mostly from Nairobi's informal settlements, Kabutu was shipped out of the country in 2009 in order to protect him. First he went to Swaziland and then to the United States. 

In New York in April 2010, Kabutu was approached by two Kenyans believed to be state security agents who had earlier infiltrated human rights activist circles in Nairobi. They persuaded Kabutu to recant and recorded him on film claiming his earlier testimony had been false. The agents had been close enough to the Kenya National Commission on Human Rights to obtain access to its database, say Nairobi sources (AC Vol 51 No 9, Worrying the witnesses). Ever since the height of the post-election crisis, the KNCHR had been collecting testimony and evidence of the violence, mainly in the Rift Valley, and on who was responsible for it. The database, we understand, was obtained by Kenya security officials and used to help to identify witnesses who might also have been approached by the ICC.

No link has been proven between the state's acquisition of the database and the subsequent withdrawal of OTP witnesses. Kabutu's about-face, however, taped and broadcast on YouTube, lent force to the widespread suspicion of a campaign of witness coercion.

Mungiki murders

The murder and kidnapping of senior Mungiki members began in early 2008 and appears to have been part of the original plan. Almost every ranking member of the militia who was not in prison when the violence ended was tracked down and murdered. Kwekwe Squad, a unit under the command of former senior police officers, is believed to have had this job. The United Nations Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, Philip Alston, directly implicated the police in the murders of Mungiki. But the government dismissed the accusations and no investigation of the spate of Mungiki killing has taken place.

Widows of low-ranking Mungiki operatives – who were allegedly recruited to carry out the reprisal  violence in Naivasha and Nakuru in late January 2008 against Luo and other perceived supporters of the Orange Democratic Movement – claim that they last saw their husbands late that February. At an interview in June 2013 at Mungiki former leader Maina Njenga's home in Isinya, Kajiado County, a 40- minute drive from Nairobi, at least six widows revealed that their husbands had disappeared between late February and early March 2008 (AC Vol 51 No 14, Mungiki's new man). 

They told almost identical stories of their husbands' sudden change of fortune in late 2007, when the men cryptically explained that they had recently been recruited for 'work' by senior politicians. The women spoke of how the men then briefly returned to their homes, donning police combat fatigues and pistols.

They were picked up the same night and disappeared, between December 2007 and January 2008, for periods ranging from ten days to three weeks. They had then returned home before being whisked away again in late February.

In each testimony, the widows claim that this was the last time they had seen their husbands. They have been searching for their bodies ever since. 'We know our husbands are dead. Every time we hear of an unclaimed body at any morgue in the city, we all rush to confirm whether it is one of ours. But our search has been futile. All we want now is closure,' said a representative of the women.

They claim that their network has anywhere between 500 and 10,000 members. We were unable to verify these figures. However, a widows' legal representative claimed that the men had probably been killed   when they returned to their employers for their final payment and their bodies were disposed of without trace.

The widows' stories do not appear to have been investigated by the OTP. In April 2009, veteran barrister Paul Muite, Njenga's lawyer, wrote to the OTP offering to provide it with evidence of the extra-judicial killing of Mungiki members. An OTP official wrote back three weeks later, confirming receipt of Muite's letter. It was the last time he ever heard from the OTP, we understand. Nor did it help that potential witnesses whom the OTP had approached remained exposed to reprisal for months or even years after they had made contact with ICC  investigators.

Many of these people were on the run in March 2013 when Kenyatta was controversially declared winner in the first round of the presidential election. Exposed and vulnerable, they lost faith in the ability of the OTP to protect them and recanted their evidence voluntarily.

In May 2013, the Prosecutor made a complaint to the judges about witness intimidation but it is not known what action she then took. By January 2014, when she pushed for an adjournment of the trial, seven of her 30 witnesses had  withdrawn.

If by some strange twist, Bensouda attempts to revive the Kenyatta prosecution, as she has reserved the right to do, she will face the same hurdles as ever: non-cooperation from a government that, flush with victory, is in no mood to play nice. Meanwhile, attempts to tell the story of the witnesses who disappeared completely, in addition to those who were intimidated, could well remain buried along with Kenya's other unsolved political mysteries.

Republished with permission from Africa Confidential.

Copyright © Africa Confidential 2014 

Lead image: Kenyans celebrating the dropping of charges against President Kenyatta (Maina/AFP)