Uhuru, Muthaura and Ali must go

Now that the International Criminal Court has issued summonses for the Ocampo Six to appear before it and answer criminal charges concerning the post 2007 election violence, there is no point in Uhuru Kenyatta, Francis Muthaura and Hussein Ali continuing to hold public offices. It is about time they had the decency to resign or be shown the door by President Mwai Kibaki.

According to the Press Release by the ICC the Pre-Trial Chamber II, where Luis Moreno-Ocampo’s plea to have the six charged were made, found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution committed in some locations in the Republic of Kenya and during the time-frame specified in the Prosecutor’s application.

The Chamber, however, found that there were no reasonable grounds to believe that Sang was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, the Chamber was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. As to the count of torture, the Chamber did not find reasonable grounds to believe that acts of torture were committed.

According to the release the Chamber found reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. The Chamber, however, found that there were no reasonable grounds to believe that Ali was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential.

Instead, the Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. Finally, the Chamber found no reasonable grounds to believe that, in relation to Kisumu and Kibera, the alleged perpetrators committed the said crimes.

When Moreno-Ocampo first accused Muthaura, Ali and Uhuru, Mwai Kibaki claimed that the three could not be asked to step down from the positions they held since the allegation by Moreno-Ocampo were just that- allegations. But today they are a little bit more than allegations. They have been examined by Pre-Trial Chamber II, which had the powers to either reject Moreno-Ocampo’s claims or accept them, and found to have enough grounds on which to place charges against the accused.

It so happens that two judges out of three agreed that there were enough grounds to summon the suspects before the ICC and place charges against them. The two are Judge Ekaterina Trendafilova and Judge Cuno Tarfusser. According to the release the third judge, Hans-Peter Kaul, disagreed with the other two in both cases on the question of whether the crimes alleged amounted to crimes against humanity under the jurisdictional ambit of the Court.

The release said he held that Moreno-Ocampo had failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization within the meaning of article 7(2)(a) of the Rome Statute which describes crimes against humanity.It said Hans-Peter Kaul believed that the Court lacked subject-matter jurisdiction in the situation in the Republic of Kenya, including both cases. It also said the dissenting opinions would be issued in due course.

It is absolutely ridiculous that Uhuru, Muthaura and Ali continue to hold public offices as Deputy Prime Minister and Minister for Finance,the Head of Civil Service and Post Master General, when the Pre-Trial Chamber II at The Hague believes that from on or about 27 December 2007 to 29 February 2008, they committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.

The Chamber also found that there were reasonable grounds to believe that from on or about 24 January 2008 until 31 January 2008, the Mungiki criminal organization carried out an attack against the non-Kikuyu population perceived as supporting the ODM (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in Nakuru and Naivasha. According to the material presented, the events in Nakuru resulted in at least 112 deaths, 39 reported cases of rape, at least five cases of forcible circumcision and the displacement of thousands of people. The Chamber found close ties between Uhuru and Mungiki.

What is shocking about the PNU/KKK reaction to all these serious allegations is the fact that they still want to send Kalonzo Musyoka and a team of Cabinet Minister to the United Nations to plea for the deferral of the cases against the six instead of making that plea at the Pre-Trial Chamber II. No one in the PNU/KKK camp is denying that the crimes were committed. All they are saying is that the trial for those offences should take place in Kenya even though the same group is frustrating every effort of establishing a credible local tribunal to try the cases.

The Chamber concluded that it was satisfied that there were reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute and that Ali was criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute for a number of acts which constituted crimes against humanity committed from on or about 24 January 2008 until 31 January 2008.

These acts included murder committed in Nakuru and Naivasha within the meaning of article 7(1) (a) of the Statute. Forcible transfer of population committed in Nakuru and Naivasha within the meaning of article 7(l) (d) of the Statute. Rape committed in Nakuru within the meaning of article 7(1 )(g) of the Statute . Other inhumane acts committed in Nakuru and Naivasha within the meaning of article 7(l) (k) of the Statute. Persecution committed in Nakuru and Naivasha within the meaning of article 7(l) (h) of the Statute.

According to the release the Chamber decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure was sufficient to ensure their appearance before the Court. Though the Government has indicated it intends to challenge the admissibility of these allegations the fact remains that Muthaura, Uhuru and Ali are facing criminal charges at The Hague. They can therefore not hold public offices while those charges are pending.