Muthaura is a threat to stability

The longer Francis Muthaura remains in office the greater the danger of instability becomes in the country. Nothing exposes this sad reality more than the February 28, 2011, secret letter to the ICC President, Christian Wenaweser, by Kenya’s Permanent Representative to the United Nations, Ambassador Macharia Kamau. Either unwittingly or through sheer stubbornness, the letter claims that without Muthaura in office there can be no Government worth talking about in Kenya. It also clearly suggests that Muthaura is the one man who stands out as the most dependable pillar of Kenya’s stability.

To begin with the chances of a comparatively junior diplomat of Macharia’s status writing authoritatively about the shape and structure of the Government of Kenya without the knowledge of the Head of the Civil Service are extremely remote. It is therefore very likely that the real author of such a threatening letter to the ICC was in fact none other than Francis Muthaura himself. His aim was to spell out the dangers of charging him with criminal offences when he was in a position to destabilize not only the Government of Kenya but to create havoc to the stability of the entire region.

No sooner was Macharia’s letter received at the ICC than Moreno-Ocampo revealed his plan to write to President Mwai Kibaki asking him to relieve Muthaura of his job before the PEV cases begin in The Hague. Obviously the prosecutor’s concerns are based on the threats in Macharia’s letter which ,among other things, say the civil servants accused by the ICC are in office and “charged with the responsibility for peace and security”.

The fact of the matter is that there are only two civil servants charged with criminal offences by Moreno-Ocampo: Hussein Ali, who is the Post Master General and today has nothing to do with any security matter; and Francis Muthaura, who chairs the National Security Advisory Committee and knows everything about security matters in Kenya. The innuendo in Macharia’s letter is that with Muthaura behind bars security in the country would be put in jeopardy.

Indeed there is no need to bother scrutinizing that hidden interpretation of Macharia’s letter because he openly says: “The pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country.” That is a very bold statement to come from a simple ambassador like Macharia. Where did he get the impudence to state openly that the exercise of Government would be jeopardized by the prosecution of Francis Muthaura? When did Muthaura become the same thing as the Government of Kenya? Is this the thinking of Macharia or of Muthaura himself?

Without mentioning their names, Macharia refers to Ruto and Kenyatta as the “front runners” in the next presidential elections which exposes the writer’s ignorance about the real picture of political situation in the country. According to him if the ICC trials go on as planned there is sure to be more bloodshed and instability in Kenya. If Macharia is expressing Muthaura’s points of view concerning the pending cases and the next presidential elections then an extremely sinister scheme to cause problems in this country has been exposed by the threatening letter.

This threat alone, whether it comes from Muthaura or from Macharia, should be enough reason for President Kibaki to suspend or even sack Muthaura while the case against him is still pending in The Hague. The taste and tone of the letter is meant to tell the ICC to drop the case against Muthaura or push the country in a dangerous situation of civil war. Macharia is asking the ICC a question that clearly exposes his intention. He says: “Is the rush to undertake a pre trial process in the political climate of Presidential campaign worth the risk of destabilizing the country and a return to violence and loss of life in Kenya?”

Reading between the lines in that question clearly indicates that Muthaura and Macharia know something the rest of us don’t. That question however explains the reasons why Ruto and Uhuru have started their presidential campaigns so early. It also explains the reasons why their language has been both rough and provocative in the said campaigns.

Macharia’s letter also threatens the entire process of the implementation of the new Constitution. By suggesting that what President Obama described as “significant step forward for Kenya’s democracy” is being subverted by the ICC action right now, Macharia and Muthaura are letting the cat out of the bag that if the case against Muthaura is not stopped the entire process of implementing the new Constitution may be subverted. The simple question to ask after that threat is: Who will subvert that process? From now on Kenyans should be extra vigilant and lookout for MPs who will be deliberately subverting the efforts to implement the new Constitution.

Already the country is witnessing the renewal of Mungiki criminal activities. In Embakasi constituency, for example, they are said to have the blessings of their local MP, Ferdinand Waititu, to continue harassing matatu owners. Are these heightened Mungiki crimes related to the Muthaura/ Macharia threats to the ICC? Why are the police forces not doing anything to protect the wananchi from Mungiki harassment? Is this sin of omission by the Police part of the Muthaura/Macharia threats?

Macharia’s letter to the ICC is also threatening peace and stability in the entire region of East Africa. He admits that at this late stage the country could not get a referral from the ICC by the use of article 19 of the Rome Statutes. That part of the Statutes is on challenges to the jurisdiction of the court or the admissibility a case. It deals with referral issues in situations in which a State can prove that it has adequate local mechanisms to try cases of crimes against humanity at an acceptable international level. Macharia admits Kenya does not have such judicial facilities and blames Attorney General Amos Wako for that weakness.

For this reason Macharia was seeking a 12 month reprieve from the United Nations Security Council in accordance with Article 16 of the Rome Statutes which says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that that request may be renewed by the Council under the same conditions. May be it was because of the taste and tone of the letter that the Security Council refused to accept Macharia’s request.

The major reason for Macharia’s request, according to his letter, was to help facilitate the implementation of the new Constitution, the transformation of governance structure as well as the judicial and police systems, while helping “avert potential violence and chaos in Kenya and the East African region at large.” That was the most shocking threat to peace and stability that has ever been made by someone holding a top job in the Government.

The letter did not say what Kibaki’s faction of the Government was doing to stop the potential violence. Indeed Macharia and Muthaura were in fact warning that if the case against the Kenyan suspects, particularly Muthaura, is not stopped, there would be a breakout of chaos in the country and the entire region. In other words, Muthaura is now a threat to peace and stability.