The Star (Nairobi)

4 January 2013

Kenya: Maina Njenga Included in ICC Charges

THE name of Mungiki leader Maina Njenga will now be included in the Document Containing Charges for the trial of Deputy Prime Minister Uhuru Kenyatta and former Cabinet Secretary Francis Muthaura.

The ICC Chief Prosecutor Fatou Bensouda had previously only mentioned "Mungiki leaders" who cooperated with Uhuru and Muthaura in the attacks in Naivasha and Nakuru.

The trial judges in the Hague have now accepted Uhuru and Muthaura's application that Maina Njenga should be specifically mentioned as among those contacted for the purpose of securing Mungiki services for the PNU coalition.

The trial of Uhuru and Muthaura at the Hague will start on April 10 while the trial of William Ruto, Uhuru's running mate, will start on April 11, the day scheduled for the second round run-off in the presidential election.

Muthaura also succeeded in having the name of former Police Commissioner Gen Hussein Ali included in the charges where the prosecution alleges that the former cabinet secretary ordered the police not to interfere with the Mungiki as they were travelling to Naivasha and Nakuru.

However Uhuru and Muthaura lost their bid to remove references to "pro-PNU youths" during the post-election violence. The two had argued that the prosecution wrongly attributed crimes committed by the Mungiki to "pro-PNU youths".

The judges allowed a request by Uhuru and Muthaura that the prosecution state the specific number of ODM supporters killed in Naivasha and Nakuru.

Originally the charges stated that, "In carrying out the attacks, the Mungiki and pro-PNU youth killed over 150 perceived ODM supporters"

The judges want the charges to now read that, "In carrying out the attacks, the Mungiki and pro-PNU youth killed approximately 150 people, including at least 82 perceived ODM supporters."

The judges also want the prosecution to specifically state in the charges that Uhuru and Muthaura held a preparatory meeting on or about January 3, 2008 at the Nairobi Club.

The trial judges also asked ICC Chief Prosecutor Fatou Bensouda to remove references to attacks in Nairobi slums from the charges against Uhuru and Muthaura/

Judge Christine Van den Wyngaert said that the charges should only contain "material facts and circumstances of the case as well as their legal qualification." She said that the charges should avoid background information.

"It would be far better if the Pre-Trial Chamber had itself formulated the charges exhaustively or made clear which parts of the Prosecutor's Document Containing the Charges it confirmed and which ones it rejected," Judge Christine said in a separate opinion.

In the case against Eldoret North MP William Ruto and radio presenter Joshua Sang, the prosecution has been asked to include the names of other persons involved.

"This information is to include the names of the three divisional commanders, if the prosecution considers them to be members of the common plan, as well as the names of any other members of the common plan, whose identity is known to the prosecution," the judges said.

Meanwhile, the ICC Presidency has asked the Trial Chamber V judges to seek the opinion of Bensouda and other participants on a request by Muthaura that the ICC relocate the trials to Nairobi or Arusha.

"The presidency requests the Chamber to seek the views of the parties on the application by the Defence for Mr. Muthaura, before deciding whether to recommend the Presidency to consult the relevant national authorities," declared Judge Cuno Tarfusser, who is the ICC Second Vice-President.

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