Top suspects Uhuru, Muthaura and Ruto are reported to be directing a serious campaign to intimidate potential witnesses. As Wikileaks cables now reveal, the November 2009 street-assassination of Mungiki spokesman Njuguna Gitau by reported undercover police officers on a busy Nairobi street is directly linked to ICC witness protection.
According to the Wikileaks cables, Gitau may have been the lynchpin who channeled funding from Uhuru Kenyatta during the latter’s sponsoring of Mungiki retaliatory murders and violence during the post-election violence. With his brutal murder, a high-priority witness with a "smoking gun" testimony disappeared forever. It is therefore paramount that other witnesses be guaranteed real protection if this ICC thing is to succeed.
One of the diplomatic dispatches from the US Embassy aptly captures Kenya's dilemma:
Minister for Justice and Constitutional Affairs Mutula Kilonzo has publicly acknowledged receiving "bundles" of letters from post-election violence witnesses reporting intimidation, many of whom testified before the Waki Commission, and who have therefore already attracted unwelcome attention from post-election violence inciters and organizers. While Kilonzo notes that threats will complicate any prosecution of post-election violence suspects, he continues to argue that he is powerless to protect them and accuses Attorney General Amos Wako, who is responsible for oversight of the witness protection program, of failing to fulfill his duties. (Note: Wako was recently subjected to 212f visa sanctions for his role in several high-level corruption cases, and does not appear to feel any sense of urgency with regard to his witness protection mandate. Kilonzo's suggestion that he has no ability to realize implementation of the witness protection program is disingenuous at best. End note).
The bold truth is that for successful investigation and prosecution of Uhuru Kenyatta and Francis Muthaura, the ICC will require nothing short of the FULL COOPERATION of the Kenyan government - which will never happen precisely because the two are at the very apex and center of that government. The last few weeks have proven that Uhuru Kenyatta is in fact the de facto leader of Kenya under this lame-duck closing-moment of Kibaki's tenure. Uhuru is the behind-the-scene director of Kibaki's own political realignments. Uhuru makes the picks for crucial appointments announced by Kibaki. Uhuru has gained the support and endorsement of the Gikuyu elite, vigorously fearful of ceding power to political rivals (Uhuru's endorsement by the Gikuyu glitterati was publicly espoused by John Michuki).
This de facto (and behind-the scenes) leader of Kenya has also proven that his priority is to save himself from ICC prosecution. Using his vantage as Finance Minister, the now boldly-assertive and foul-tempered Uhuru Kenyatta has been misallocating large amounts of Kenyan public resources in the singular bid to frustrate ICC prosecution of PEV. Part of Uhuru's directives have involved the forceful dispatch of Kalonzo Musyoka on the back-firing shuttle diplomacy mission across African capitals (like recently besieged Cairo and Tripoli) to mobilize anti-ICC sentiments and galvanize AU support for deferral of Kenya's case. More recently, Kalonzo has been turned away from the USA. Another of Uhuru's fingerprints was Kibaki's faux-pas nomination of Chief Justice, Attorney General, DPP and DoB.
Uhuru, assisted by Ruto, has similarly been coordinating the publicly unpopular Parliamentary effort to pull Kenya out of the ICC. Their string of 'successes', bolstered by the parliamentary numbers of impunity footsoldiers, has definitely emboldened them, and rejuvenated the perceived indomitability of their coordinated 2012 presidential bid.
Now back to their joint role in stone-walling the ICC probe of PEV.
Uhuru, Muthaura and Ruto are doing everything possible to kill Kenya's cooperation with ICC. They have certainly appreciated the reality that successful ICC prosecution requires some degree of cooperation with the government. That is why Uhuru and Muthaura are clinging at the heart of government — to prevent cooperation. Crucial aspects of this cooperation involve WITNESS PROTECTION and ASSET FREEZES/PROPERTY SEIZURES. ICC does not have its own witness protection programme, but relies on cooperation from member states. Keeping witnesses alive and safe will be the cornerstone of successful prosecution of the high and mighty: Uhuru is Kenya’s Deputy Prime Minister and Minister for Finance, and former first son — possibly the wealthiest man in Kenya today; Francis Muthaura is the head of Kenya’s civil service and secretary to the cabinet, and effectively Kenya's shadow president. How then could ICC possibly hope to get full cooperation regarding, say, the freezing of Muthaura's assets — if the instructions to do so essentially have to pass through the same Muthaura? How can witnesses be guaranteed protection if everything regarding the witness protection program (funding, passing amendments to the Witness Protection Act 2010, etc) all revolve around Uhuru and Muthaura?
Meanwhile, witnesses are being killed and intimidated. Apart from Gitau’s murder, former AP Deputy Commandant Oki Kaunya has also received death threats prompting his exile, facilitated by foreign diplomats cooperating with ICC. Muthaura has singularly stone-walled the ICC requested taking of statements from Security chiefs during the PEV. Uhuru and Ruto have mobilized parliamentary numbers to prevent the amendment of the Witness Protection Law to give it more independence, teeth and capacity. Uhuru is well on track to hand-pick his cousin Prof. Githu Muigai to be Kenya’s next Attorney General, essentially giving him the added bonus of a first-hand account and details of witnesses enrolled in the witness protection program. The Witness Protection program is currently under the AG’s office. Does anyone in their right mind think any witness protection program under Githu Muigai would be credible in guaranteeing safety to witnesses slated to testify against Githu’s own cousin, de facto employer and benefactor, Uhuru Kenyatta? The UK recently donated a paltry £200,000 ($311,945) to the ICC Registrar to specifically offer protection to witnesses of PEV slated to testify at the ICC. Truth is, it’s it's a drop in the ocean.
Under Kenya’s current Witness Protection Act, the Witness Protection Unit is headed by an Uhuru Kenyatta stooge called Alice Ondieki, and the unit falls under the AG. Security is provided by the rotten and corrupt Kenya Police, and AG must directly approve anyone entering the program. The program is also directly funded by Uhuru Kenyatta, through a line item in the budget of the Ministry of Justice. This program is too closely linked to Uhuru, Muthaura and the existing security forces. How can such a system protect a suspect set to testify against Uhuru Kenyatta or Francis Muthaura?
The impunity merchants are slowly grabbing back Kenya, away from the path of reform. All systems are being set to work for their individual interests and protection, not for the common good. They are derailing implementation of the new Constitution and deliberately triggering instability. Their recent language is laced with tribal epithets and slurs aimed at stoking ethnic divisions. The ICC Prosecutor must be finding it quite frustrating and expensive to successfully investigate and prosecute government insiders who have their hands in Kenya's public purse.
As Ocampo continues probing Kenya's PEV, and thabk God Pre-Trial Chamber II Judges have now issued summonses for the Ocampo 6 to appear before them on April 7, the ICC Prosecutor must do one more thing for Kenyans: he must investigate who killed the potential ICC witness and former Mungiki spokesman, Njuguna Gitau.