, NAIROBI, Kenya, Feb 7 – Francis Muthaura’s lead counsel Karim Khan QC says he is confident the former civil service chief will be cleared during trial by the International Criminal Court, if his appeal against the decision to confirm his case fails.
In an interview with K24’s Capital Talk, Khan maintained that Muthaura was not involved in the 2008 Naivasha attacks.
“If the appeal doesn’t succeed, I am confident I will clear Muthaura at the trial stage. Like I said, even dressing up the prosecutor’s case in Sunday best, it will still be in tatters!’ he asserted.
Khan says it is not easy to succeed in an appeal even though he already filed for leave to challenge the decision of the Pre-Trial Chamber.
“There can’t be guarantees, getting appeals is difficult. The same judges who confirmed the case must decide whether or not to grant leave to appeal. They are the gate keepers to the appeal,” he says.
However he says he is not worried of the trail stage: “A trial should not hold fear for us. Whether it holds fears for the prosecutor is another matter. For us, we were not scared of the investigations, we were the ones beseeching for investigations.”
Khan who is leading a defence team comprising top international lawyers Shyamala Alagendra (Malaysian) and Essa Faal (a Gambian) both formerly working for the ICC prosecution, strongly believes the prosecution wrongfully picked on Muthaura.
That is why the confirmation of charges came as a shocker to all of them on January 23.
“We received it 10 minutes before the bench walked in the court to read the verdict. But a colleague at The Hague rang me and went straight to the end of the ruling. We were very shocked,” he recounts.
The lawyers pulled aside Muthaura, his family and close friends to deliver the hard-hitting verdict. They did not expect Muthaura to hold up. Instead he was even the one consoling those moved by the news.
“Muthaura said, ‘God is good, God is great and I am innocent and I will continue forward,’ Khan recalls Muthaura’s words as he described him as a very calm and a humble man.
“Of course it was devastating news particularly for the wife. He has two children – they shed tears. He was such strength to the family. When he went out to the rest of the friends and other family members they prayed. Other people were shedding tears but he was giving strength to them.”
The lead counsel said it will be a matter of time before they prove the prosecution wrong on its allegations.
According to him, Muthaura is wrongfully accused of crimes against humanity blaming it on poor investigations by the prosecution.
“We were the ones beseeching for proper investigations and because of lack of proper investigations we are sadly where we are today,” he decries.
He accuses the prosecution of relying heavily on information from unreliable sources which he feels the prosecutor did not spend time to sieve.
“The prosecutor was plugged into a certain information stream and swallowed everything as he said in court ‘lock stock and barrel’ because there was constant information that was coming,” Khan alleges.
Khan who was a member of the prosecution for the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) strongly believes Muthaura had no hand in the 2008 post election violence.
He insists that his client never attended any meetings at State House with the outlawed sect and neither was he present at a meeting in Nairobi Member’s Club on January 3 2008 to plan attacks by Mungiki.
He also says Muthaura did not make any phone calls to Major General Hussein Ali to discuss the attacks.
“That is the meeting the prosecution says Muthaura hacked a criminal plan with Uhuru Kenyatta for Mungiki to commit crimes in retaliation. If you know Muthaura, he is the kind of man who stays in his office and goes home. He is not a social creature, he doesn’t attend clubs,” he asserts.
Since Ali was cleared by the court last Monday, the lead counsel is questioning why Muthaura is facing allegations that he ordered police to protect Mungiki yet there was no evidence linking police to the violence.
“So the responsibility of Muthaura is what? No longer security service, no longer police, he is in charge of Mungiki, that is what is alleged, he is at the apex of Mungiki, him, Kenyatta, Maina Njenga the intermediaries controlling the Mungiki?” he frowns.
He also accuses the prosecution of stereotyping Kikuyus as Mungiki just because they speak the language or belong to that tribe.
“The prosecution is saying Michuki is Mungiki, Muthaura, Kenyatta is Mungiki. So every Kikuyu is Mungiki? How pensive is that? Are you sinologists like saying every Muslim is al Qaeda, how offensive is that,” he wonders.
Khan terms the allegations of Muthaura’s involvement with Mungiki as ridiculous and far fetched, “A normal Kenyan would laugh if they are asked do you think Muthaura is in charge of Mungiki? We asked Mungiki, a key person and none of them ever met him, instead they laughed. The laugh is not a theoretical laugh.”
The lawyer still discredits one of Ocampo’s witnesses as ‘a self confessed mafia hoodlum belonging to a veil body of people that commit atrocious crimes’ for implicating Muthaura as a Mungiki associate.
But he is determined to win as the case progresses forth.
Muthaura is accused of rape, murder, forcible transfer of populations, persecutions and other inhumane acts. He has since last week stepped aside as head of the Civil Service following the ICC indictments.