Fresh details have emerged revealing the strategy prosecutors at the International Criminal Court adopted to charge Uhuru Kenyatta with crimes against humanity, and why it failed.
Prosecutors flipped former Mungiki leader Maina Njenga to testify against Kenyatta in exchange for not being prosecuted, says a special report published by the New York Times. They also attempted to get former police commissioner Hussein Ali to testify against Kenyatta and head of the public service Francis Muthaura in exchange for dropping charges facing him, but did not succeed.
After the Attorney General forbade senior police officers who were in charge of security from speaking to ICC investigators, Ali reportedly felt safe enough to decline the offer.
Prosecutor Luis Moreno-Ocampo’s team had considered charging the Mungiki leader, but instead chose to turn him. Njenga had pleaded ignorance when questioned by Kenyan investigators about the post-election violence but came clean when confronted by ICC investigators. Maina Njenga allegedly detailed the structure of his organisation and its role in the violence. He later agreed to testify in The Hague.
The Mungiki leader allegedly told his lawyer, Paul Muite, that he had personally administered the Mungiki oath of loyalty to Uhuru Kenyatta, though it is not clear if he told this to ICC investigators.
Muite, who represented Njenga in court, says “almost every Kikuyu politician of consequence during that era took the oath”. According to Muite and a former lieutenant of Njenga’s interviewed by the New York Times, one of the politicians who took the oath, before becoming president, was Kibaki.
Njenga was shot and seriously injured two years ago during a highway attack on his convoy in Nyahururu in which five people travelling with him were killed. Although police said the shooting was part of infighting within the Mungiki militia gang, Njenga blamed the police and linked it to the ICC investigations.
"I was approached many times to write a statement in favour of those guys (Uhuru) and I have refused; and this shooting is linked to the ICC case," Maina told the media at the time.
Njenga was released from jail and his case terminated after he demanded state protection in order to give evidence involved in the activities of the Mungiki, a secret sect banned in 2002 over violence. Njenga had been jailed in 2007 for possession of drugs and a firearm but was acquitted and immediately rearrested for 29 murders in Karatina, Central Kenya. Muite was his lawyer.
Documents filed at the ICC allege that Njenga, who was in jail during the 2007/8 post-election crisis, continued to command the Mungiki and receive payments for the sect members’ participation in the violence.