Why is ‘First Prosecutor’ Maina Kiai hallucinating?



Maina Kiai was the Head of the Kenya National Commission on Human Rights (KNCHR) when the much discredited report ‘On the Brink of Precipice’ was published. Subsequent investigations into the post election violence that rocked Kenya between December, 2007 and February 2008 have one thing in common. All of them borrow heavily from Maina Kiai’s KNCHR report.

The Waki report particularly plagiarizes Maina Kiai’s report even repeating an obvious factual inaccuracy that Uhuru Kenyatta was MP for Gatundu North. Mr Kenyatta served as MP for Gatundu South for two terms. Louis Moreno Ocampo and his successor Fatou Bensouda have also borrowed heavily from Maina Kiai’s report.

The foregoing places Maina Kiai in a very unique and privileged position. He is not your run-of-the-mill civil society activist. He is very central to the ongoing case at the ICC. Given his pioneering role in investigating the post election violence, he is clearly the first prosecutor of the cases. I recall attending the first meeting of Kenyans for Peace, Truth and Justice (KPTJ) in January, 2008 at the Panafric Hotel. In that meeting, Maina Kiai was categorical about two things.

First, he stated solidly that the 2007 election was stolen and second, that there is no need to talk about peace before justice is established. That was at a time when most of us were of the view that irrespective of who was responsible for what in the election, unconditional stopping of the violence was of utmost priority. Mr Kiai, the First Prosecutor, was of contrary opinion. “Justice first, peace later” was his unequivocal position.

Now, Maina Kiai, the First Prosecutor, would like Kenyans to believe that his life is in danger. Never mind that the self-proclaimed prince of the rule of law has not deemed it fit to report the matter to the police. Of course Mr Kiai is anything but certainly not a fool. He knows that if he reports his claims to any authority (except, perhaps the KNCHR investigators), he will be hard pressed to provide hard evidence, which he does not have except in his always fertile imagination. But there is something else Mr Kiai knows.

He is alive to the fact that the ICC is seized of the serious matter of witness protection. By claiming that no less than the President of the Republic of Kenya is responsible for threatening his life, the First Prosecutor, Maina Kiai is simply assisting the Fourth Prosecutor, Fatou Bensouda to create imagery in the minds of the judges. This week, Prof Makau Mutua, a close ally of The First Prosecutor Maina Kiai posted on his Twitter account that it is time the ICC issued warrants of arrests against Mr Kenyatta and Mr Ruto. The web of intrigue that culminated in Mr Kiai’s claims is discernible even to the naked eye.

There are two other reasons why The First Prosecutor is hallucinating. One has to do with the case at The Hague and the other one is much closer home. At The Hague, matters seem to be going down South for the Fourth Prosecutor. A case involving a sitting President and a Deputy President of a sovereign nation is being heard behind closed doors. Can you believe that? One would have thought that the Fourth Prosecutor Bensouda would gleefully share whatever evidence she has with the world. When she dropped the case against Francis Muthaura, Bensouda claimed that witnesses were being intimidated.

Whenever her case is not doing well, the Fourth Prosecutor always claims that witnesses are being tampered with. Short of any evidence to prove that, she will find the claims by the First Prosecutor, Maina Kiai very useful in creating the imagery of a rogue state headed by rogue leaders where the rule of law is worse than in Europe during the Stone Age era.

Closer home, Mr Kiai has reason to hallucinate. Mr Steve Kay, Mr Kenyatta’s lead counsel at The Hague has applied for some confidential information from a local mobile phone operator. That case is being heard in-camera.

The civil society rushed to court with unprecedented speed and alacrity, demanding that the case be heard in open court. Now, I am confused. Bensouda wants the case at the ICC to be heard in private, yet the local civil society wants the Kay case to be heard in public. Could the Kay case be reason why Mr Maina Kiai, the First Prosecutor, is panicking ? Are we on the verge of getting incontrovertible evidence of how the ICC witnesses were procured ? Methinks we are headed for very interesting times.

(The writer comments regularly on public affairs and policy matters Twitter:@HonMosesKuria)

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