ICC Alert: Uhuru Loses Another One

[OtishOtish]

Uhuru Defence asked the Trial Chamber to stop the public release of a document listing their "disagreements" with the OTP over changes to the Document Containing Charges. (The document was posted on the ICC website and them taken down a short while later, after an "urgent" request by Team Uhuru.) Note that the corresponding document in Ruto-Sang was made public without noises from anybody.

The Trial Chamber has now ruled that the document must be made public:

www.icc-cpi.int/iccdocs/doc/doc1467952.pdf

The document has still not been posted back, but I will post an ICC link to it when that happens. I did, however, download a copy when it first appeared, and, having read it, I am puzzled as to why Uhuru Defence doesn't want it made public; it all seems to be fairly routine and dull stuff, with the possible exception of Muthaura's alleged interactions with the police (Ali is still very much in the mix), Uhuru's facilitation of meetings with Mungiki, and the inclusion of several allegations that the PTC did not address. Oh, and OTP seems to be implying that there were more planning meetings than those previously discussed and objects to the Defence request that only previously disclosed meetings be included in the DCC. Still, all in all, perhaps there is something there that requires very close scrutiny.

While awaiting the ICC link, which is unlikely to be available for several more days, as Uhuru Defence might continue the fight, I have sent a copy of the document to Onyango Oloo for posting if he deems it worthwhile.

[Onyango Oloo]

See attached.

Attachments:

[jonah]

OtishOtish You ask why would the defence want this document kept private? Maybe UK's lawyers don't want Maina Njenga to know that they are trying to stitch him up and make him a co-perpetrator in the PEV (his jailing at the time notwithstanding). Additionally Kenyans (and particularly our media) will most likely misunderstand the document and its true purpose. They may even take some statements as admissions. Take a look at this paragraph written by UK's lawyers and imagine the way it would be (mis)construed by Kenyans:

--- (p.61)
The PTC was quite specific as to who were parties to the alleged common plan.

In para 400, the “Chamber finds that there is sufficient evidence to establish substantial grounds to believe that a common plan to commit the crimes in Nakuru and Naivasha was agreed between Mr. Muthaura, Mr. Kenyatta and Maina Njenga. As shown above, this conclusion is established to the requisite threshold by the evidence demonstrating:
(i) the contacts between Mr. Muthaura, Mr. Kenyatta and Maina Njenga through their respective intermediaries for the purposes of securing the services of the Mungiki for the PNU Coalition;
(ii) the agreement reached between Mr. Muthaura, Mr. Kenyatta and Maina Njenga to the effect that Mungiki members would be used for the attack in Nakuru and Naivasha;[
(iii) the order given by Mr. Muthaura and Mr. Kenyatta to Mungiki leaders to commit the crimes in Nakuru and Naivasha; and
(iv) the activities performed by Mr. Muthaura and Mr. Kenyatta at the execution stage of the plan to commit such crimes.”

It is quite clear from the above finding of the Chamber that the alleged principal
perpetrators are Muthaura, Kenyatta and Maina Njenga. The Prosecution appears to
be making a deliberate effort to avoid mentioning Maina Njenga anywhere in the
charging document. Such an approach will amount to a deliberate refusal to portray the case as confirmed by the PTC. Maina Njenga is now a central player in the case confirmed by the judges.

Furthermore, the PTC acknowledged all OTP allegations in its Decision (para 288) but in its findings chose to focus only on those facts for which “based on a comprehensive analysis of evidence available, it deems to be satisfactorily established” and after such analysis gave conclusions (paras 299-300 of the CD).

[OtishOtish]

Jonah:

Interesting comments. Time permitting, I'll read the document with a different mindset and post comments. Odd enough, though, I found the corresponding doument in Case 1 to be more "revealing". Anyway, the Uhuru-Muthaura team has been given until tomorrow to ask for specific redactions to that document, which is why it is still not up at the ICC website. If they do, it will be interesting to see what they ask for.

What is amusing in all this is that many people (including journalists) who rarely read these dull annexes are now likely to read this one precisely because the Defence is fighting to keep it from the public.

RE: "Furthermore, the PTC acknowledged all OTP allegations in its Decision"

What I stated was "..the inclusion of several allegations that the PTC did not address". If you read the OTP's updated Document Containing Charges, you will find over 100 instances of the statement "Allegation not addressed by Pre-Trial Chamber". I doubt that the OTP is making it all up; at least, I checked about 25 of them and agreed with the OTP.

Said allegations include meetings other than the "popular" ones at State House and Nairobi Members Club: "The key preparatory meetings include [INSERT State House and Club ones, 30 Dec and early Jan] and ... , mid and late January and in Central Province on or about 31 December 2007."

The inclusion now of some---many are "routine"---of these allegations is interesting: one wonders whether the OTP provided only enough evidence to support some allegations, with additional "fireworks" held in reserve for the trial. We'll find out from April.

[OtishOtish]

Jonah:

I took another quick read at the document. Some preliminary observations and impressions:

* Yes, I agree with you that although Njenga still features prominently in the DCC, it might appear that Uhuru and Muthaura want to make sure that he remains very much in the thick of things. A typical example is the insistence that the "principal perpetrators" be replaced with "Mr. Kenyatta, Mr. Muthura, and Maina Njenga". I imagine Njenga won't be amused by that

* Planning meetings: Were there other planning meetings beyond the much-discussed two? If not, why is the Defence insisting that no additional meetings be mentioned, and why does OTP insist that additional meetings be mentioned, with evidence to be provided at trial?

* The OTP's statements imply that Muthaura's instructions to the police (to not interfere with Mungiki) went beyond Ali and also included other security agencies. Wondering: Why does Defence object to that if they didn't? Also relevant is the claim of a "the grant of impunity by MUTHAURA to the main perpetrators of the attacks".

* In response to claim of vague generalities that should be omitted, the OTP has now provided

- provided the name of the Muthaura's guy who gave AP uniforms to Mungiki as they prepared for their atrocities.

- the name of Uhuru's guy who carried his money to Njenga.

- the names of Mungiki leaders that Muthaura was dealing with

- name of the person who carried out oath-taking and mobilization in preparation for the atrocities.

* Defence seems very keen to downplay the scale of the violence as well as the gruesome nature of the atrocities.

* Defence seems very keen to distance PNU from the whole matter.

[jonah]

OtishOtish

The screw is tightening - it appears that OTP has more evidence than many Kenyans have been led to believe.

People: when you read this document - search for the word 'redacted'

[OtishOtish]

The matter has now been decided by the Trial Chamber:

www.icc-cpi.int/iccdocs/doc/doc1472625.pdf

a) Defence has given up the fight to keep the entire document confidential.

b) Defence has asked that information that can be used to identify three individuals be redacted; presumably this is more than just the names. That request has been granted.

The new, redacted Annex D has yet to be made public. When it is, I will post the link. In the meantime, I urge Jukwaaists to stop reading the version above, lest they learn things that Uhuru and Muthaura don't want them to know.

The Trial Chamber has also ordered that all the OTP and Defence submissions in the matter be made public. I will post links when that happens.