Week #4. The five things we learnt

This week has all been about the International Criminal Court, the Ocampo Six, the Ocampo Four and the departure of Francis Muthaura and Uhuru Kenyatta from office. It was interesting to see Henry Kosgey back to pre-December 2010 smiles and Major General Hussein Ali taking tea and biscuits with the crime reporters who knew him better in his time with the police. We know, also, that the ICC process will be with us for some time. As the tout shouts to his driver when the bus stop is empty, go ahead.

It takes more than a statement from the legal chief

Under the (new) Constitution, the Attorney General is no longer the powerful personage of old.

He cannot drag a minister to court, he cannot threaten you if you imagine the death of His Excellency the President, he cannot withdraw a case against you in court and he certainly cannot ask the police to re-investigate a case they bungled and report back within seven days.

Those days went long before Amos Shitswila Wako beamed out of office last year.

But it does not mean the new Attorney General just sits at Sheria House and smiles the day away. In this era, when Parliament is passing law after important law whenever it meets, the AG has to read through a lot of blue bills before they are transmitted to the Government printer to be pressed, answer questions in Parliament and advise the President and the Cabinet, of which he is still a member.

Prof Githu Muigai must have done exactly that last Monday when the President made his cool, calm and collected response to the International Criminal Court’s decision to have Uhuru Kenyatta and Francis Muthaura committed to trial. He said he had also directed Prof Muigai to constitute a team to examine the ICC decision and advise the Government accordingly. There were whispers that the establishment of this team would amount to exactly nothing as the good professor can read the ruling and ciome up with a position within a few hours.

But you don’t question the President and so Prof Muigai set up the team as directed and called the press to announce that. But the press was interested in more interesting subjects and they therefore asked him whether Mr Kenyatta and Mr Muthaura should be asked to leave their official positions in accordance with the Constitution and various other statutes.

That’s rather simple, the AG must have figured, as the law naturally assumes that you are innocent until proven guilty and the two subjects of the question would be appealing against the confirmation of charges anyway.

“Our understanding is that the confirmations have been made against the four and the four are going to appeal. We cannot make a precipitate decision. We cannot determine any issue until the four citizens have exhausted their rights of appeal,” said Prof Muigai

On Thursday afternoon, the Presidential Press Service announced that the two had asked to be relieved of their duties, and the President had agreed.

So much for that longish statement from the legal chief. It clearly takes more than that.

Notable is the silence of the legal team and the AG on how Kenya will handle the ICC matters.

The Intelligence men are intelligent

There are still some good books waiting to be written about some aspects of Kenyan history, and I think one of those books should be written by men like Imenti Central MP Gitobu Imanyara and Senior Counsel Paul Muite.

Mr Imanyara was quite enthusiastic to talk about his experiences at the hands of the Special Branch when hosted by K24 presenter Jeff Koinange on his famous bench. I remember he would give detailed answers to Jeff’s questions and there was not enough time to get the full detailed story. I also recall covering Mr Muite when he claimed that the dreaded Kwekwe squad had instructions to kill him.

The experiences, the novels of Fredrick Forsyth and the James Bond movies encourage our imagination of intelligence service men as dangerous double-faced characters with recording devices hidden in their shirtsleeves and cigarette holders.

In Kenya, since the publication of the Waki Report, we have established that while the intelligence men might no longer go about arresting and torturing politicians and activists, they certainly keep track of things.

Reading through the ruling by the Pre-Trial judges at the International Criminal Court, one also notices the constant references to NSIS situation reports that appear to confirm the Prosecutor’s theory.

The men and women at Nyati House would be happy that their work is considered excellent and the ordinary folk would also want to know that the men and women whose very name suggests good brains have been doing their work.

The judges did note, however, that while Kikuyu MP Lewis Nguyai claimed to have spoken with the Mungiki during those turbulent times, the NSIS appeared to have no idea that he was.

HK was not in a good state

The press conference at which Henry Kosgey briefly spoke of his delight at the decision of the Pre-Trial Chamber judges at the ICC to let him go was a funny affair.

There were activists and party loyalists on one side and they kindly advised those of us who found them seated to find some space behind them and the television cameras to sit.

There were about seven ODM MPs at 10 am, the time it was scheduled to begin, but this number had increased to 20 when Mr Kosgey finally strolled in, beaming brighter than the lights Citizen TV was using to illuminate the event they relayed live.

Given the long face we had constantly been seeing on the paper whenever his other case came up at the courts at Milimani, and the reticence in Parliament and at the ICC, the man who appeared eager to answer was vastly different.

There was suddenly a shortage of questions from the journalists, apart from those who wanted the statement repeated in Swahili, and since the ODM MPs were happy to stay in the background, the event ended rather quickly.

He was also rather vague about his political prospects as we had also hoped he would say something about ODM, where his role, even as chairman, appeared to have been subdued in the year he has been under the ICC spotlight.

As he left, he was mobbed by the supporters and MPs.

Major-General Hussein Ali appeared to poke fun at Mr Kosgey when he spoke at his own press conference the following day. 

Kenyan lawyers can swim with the big fish

Towards the end of the press conference at the Serena Hotel where he spoke in the softest tones about the ICC decision, the attention shifted from Maj-Gen Ali to his lawyer Evans Monari. (The miracles of technology made it possible to hear the former Police Commissioner loud and clear on TV. It was a struggle to hear him from less than three metres away)

Mr Monari allowed the reporter to ask the long question and then lifted his shoulders in a long shrug, turned palms skywards and contorted his face to suggest it would be futile to read his lips.

“This was the General’s conference,” he said when pushed to speak.

After the conference at Norfolk Hotel the previous day, all the attention was on Henry Kosgey, with his lawyers disappearing into the crowd of reporters and ODM members.

Yet neither George Oraro nor Evans Monari waxed lyrically eloquent or were flamboyant when their clients appeared at The Hague. True, Gregory Kehoe, Gen Ali’s other lawyer, provided some comic relief at The Hague with his suggestion that the Kenyan football team should also have been thrown into the PEV fray.

Their clients were also careful to have them at the head of the teams that worked for them.

Neither has spoken of the tactics they employed to get their clients free, and we would perhaps need Gen Ali to be more candid about his silence since December 15 and hope Mr Kosgey will explain his similar silence.

At the back of our minds, we will know that Kenyan lawyers can swim with the big fish.

There is quite a long way to go with the ICC

This post is being written a day after lawyers for the four suspects filed their notices of appeals against the Pre-Trial chamber.

There are several lengthy PDF documents to read in addition to the actual ruling, and the Rome Statute to be studied, even before we get to the trial stages.

In their reaction to the ruling, Amnesty International suggested that the ICC is not adequately funded to facilitate the speedy trial in the Kenyan case but made the mistake of going into the actual budget.

Given the time it would take to process the appeal,  and the possible long period before the case goes to the full trial stage, it would perhaps not be wrong or partisan to suggest that those that the ICC has touched should settle in for a long wait.



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