BY MIGUNA MIGUNA
Francis Kirimi Muthaura and Uhuru Muigai Kenyatta – two of Moreno Ocampo’s most powerful Kenyan indictees – have announced that they have resigned from ICC-related functions within government.
Muthaura has reportedly written a letter to the Minister for Internal Security, George Saitoti, that he would no longer chair the National Security Advisory Committee whose members include the Chief of General Staff; the heads of intelligence; head of police; army, air force and navy commanders; among others.
The National Security Advisory Committee is an extraordinarily powerful body. Its chairman is at the very pinnacle of the security apparatus in Kenya. This is the Committee that makes all important decisions affecting national security, including but not limited to security operations. Essentially, it has power over life and death.
Muthaura heads the committee by virtue of his position, firstly, as the President’s Permanent Secretary; secondly, as Secretary to the Cabinet; and thirdly, as Head of the Civil Service. He was appointed to these powerful positions by President Mwai Kibaki; not by George Saitoti. Therefore, his resignation ought to have been addressed to the President. It’s unclear why it took Muthaura this long to “resign.” The ICC Prosecutor named him a suspect on December 15, 2010.
Moreover, by dint of the three significant offices he continues to occupy – his purported resignation being limited to the security advisory committee – he remains the de facto head of the police, intelligence, military, provincial administration and other state security agencies. Within the presidency, it’s Muthaura who has been signing appointment letters of all civil servants, including that of the Police Commissioner, the head of intelligence service, the Chief Justice and all judicial officers.
In Kenya, therefore, the police, intelligence – even the military and judiciary – operationally fall under the Head of Civil Service. Consequently, Muthaura has power, authority and control over all investigative, prosecutorial and judicial processes in Kenya and would be able to obtain any information pertaining to the ICC process and witnesses whenever and wherever he desires.
Similarly, Uhuru was reported to have written a letter to the Attorney General, “resigning” from membership of the Witness Protection Board. Uhuru is a member of the Board by virtue of his position as the Minister for Finance. It is the Ministry of Finance that funds the Board. The Ministry of Finance is an executive portfolio. However, legally, the executive powers are only exercisable by the minister. Those powers cannot be delegated to anyone; not even an acting minister. An assistant minister has no executive powers. As such, an assistant minister cannot be a member of the Board. Even if the assistant minister could attend meetings of the Board or participate in its deliberations, he would only be doing so on behalf of the substantive Minister. As the substantive Minister for Finance, Uhuru is still the person directly responsible for the entire ministry. Even if he doesn’t attend the Board’s meetings or participates in its deliberations, he would still have power, authority and control over the Board. He would still have access and be privy to all the Board’s activities, including vital information over the ICC investigations and witnesses.
Moreover, Uhuru was not appointed the minister of finance by the AG. It wasn’t the AG who prescribed the responsibilities that fall under the ministry. As a presidential appointee, Uhuru’s “resignation” should have been addressed to the President.
In any event both Uhuru’s and Muthaura’s orchestrated “resignations” are cheap political ploys. They don’t affect the functions, powers, responsibilities, authority, control or influence of both individuals.
Even the President usually doesn’t attend meetings of the National Security Advisory Committee. He doesn’t attend meetings of the Witness Protection Board. However, by virtue of his state functions, power and authority, he is able, on demand, to get any information he wants. But for virtually all information to reach the President, Muthaura must receive, review and make a determination first. The same applies to Uhuru. So, essentially, Muthaura and Uhuru will continue to have access to all information on the ICC investigations including vital ones on witnesses.
Therefore, membership, in and by itself of the key bodies, wasn’t the issue Moreno-Ocampo was raising with respect to Uhuru’s and Muthaura’s abilities – if they so choose – to interfere with, compromise and/or undermine investigations and/or witnesses.
The practical reality is that because the two individuals remain extremely powerful and influential within government, they will continue to obtain, on demand, all information regarding the ICC process. Virtually no civil servant can disobey the orders of the two for fear of losing their jobs, being stigmatized, undermined and/or otherwise targeted for all manner of reprisals.
Uhuru and Muthaura have behaved as if the public offices they preside over are private fiefdoms. Uhuru is on record stating that the Ministry of Finance is Kibaki’s and that until or unless Kibaki says otherwise, he will continue to be the minister of finance. That followed legitimate demands for his resignation by the civil society, the ICC Prosecutor and the media. That was one of the most unfortunate utterances by a senior public servant.
No ministry, department or state agency belongs to any individual; no matter how powerful. All ministries belong to the people of Kenya. Therefore, for Uhuru to assert that the Ministry of Finance belongs to Kibaki implies that he considers even the government as belonging to Kibaki alone. No wonder these people hurl epithets at the Prime Minister of the Republic of Kenya – who is their superior – with so much arrogance and impunity.
In the final analysis, Uhuru’s and Muthaura’s so-called resignations are empty ploys that the ICC will see through.
(Miguna is the PM’s advisor on Coalition Affairs. The views expressed here are his own)