The International Criminal Court prosecutor Fatou Bensouda has accused President Uhuru Kenyatta of being involved in the killing of various Mungiki leaders to silence the group and cover-up his guilt.
In a confidential ex-parte filing of July 11 available to the prosecution and the government only but made public on July 29, the prosecution also said that Maina Njenga, the Mungiki leader, received payments from Mr Kenyatta after he was released from prison in October 2009.
President Kenyatta previously denied any links with the outlawed Mungiki sect in a sworn testimony during the pre-trial hearings in 2011.
Then Deputy Prime Minister, Mr Kenyatta also denied meeting the Mungiki as alleged by former ICC prosecutor Luis Moreno Ocampo and even threatened to sue Prof Peter Kagwanja who had written an academic paper linking him to Mungiki.
In a submission on 9 July, the prosecution states that various witnesses in its custody have linked President Kenyatta to the murders of various senior Mungiki members in the years 2008 and 2009 so as to cover up his involvement with them in the post-election violence.
“While these killings are not the subject of any charges, if true, the accused’s involvement would be a powerful indicator of his guilt. These killings are also likely to have involved the expenditure of funds,” the prosecution said.
The prosecution also says that Uhuru Kenyatta later footed the funeral expenses of a number of Mungiki leaders as well as that of Mr Njenga’s wife, Ms Virginia Nyakio, who was shot dead in January 2010.
“If true, the obvious motive would be to secure the silence of the deceased’s family members,” Ms Bensouda said.
These allegations are contained in the prosecution’s submission to support the temporal scope of the request for the financial and property records that Ms Bensouda wants the government to provide to her office to carry on with the trial of Mr Kenyatta.
Ms Bensouda wants the government to cooperate with her office in obtaining Mr Kenyatta’s assets, phone details, M-Pesa transactions and value-added tax information, foreign exchange transactions and companies or businesses he owned or had interests in between June 1, 2007 and December 15, 2010.
The prosecution has also asked the government to assist it to obtain information on assets owned by Mr Kenyatta’s family and associates as well as land or real property registered in Mr Kenyatta’s name either personally or through third parties, which might have been transferred to any other person or entity between June 1, 2007 and December 15, 2010.
Records covering the time period, the prosecution argues, are necessary to enable her office and other parties avoid risking improper conclusions being drawn from the data.
The government has contested the time frame, arguing that it was too wide and irrelevant to the charges. Instead the government wants the prosecution to restrict itself to the period of the post-election violence between December 2007 and February 2008.
Ms Bensouda has however said that the only way in which the significance of withdrawals of cash or transfers of money, land or other property at the time of the violence can be properly assessed is by comparing the records for other, more normal periods, in order to establish whether such withdrawals or transfers were unusual.
Such an analysis would place the transactions during the PEV in their proper context and enable them determine whether there is any significance to the payments or transfers made, or whether they were normal activities habitually engaged in by the accused.
The ICC prosecutor added that the shorter period advocated for by the government would prevent a proper comparison being made and would lead to an analysis based upon a narrow snapshot of time, taken out of context.
Ms Bensouda stated that an examination of transactions during the pre-violence period was appropriate to establish the preparations Mr Kenyatta made ahead of the 2007 General Election.
Trial Chamber V (b) consisting of judges Kuniko Ozaki, Robert Fremr and Geoffrey Henderson on July 29 upheld the prosecution’s argument for a wider time frame.
The judges held that investigative enquiries need not be confined merely to the immediate period of the violence.
“Such inquiries are also appropriately conducted with respect to any period during which it is reasonably surmised, having regard in particular to the existing evidence, that related preparatory or post-violence steps may have been undertaken by the accused,” the judges said.
The chamber said it was satisfied the prosecution had appropriately specified and justified, in terms of relevance and necessity, the time frame.
The trial of President Kenyatta is highly dependent on the government providing the records requested by the prosecution after certain key witnesses were withdrawn or recanted their testimonies.
The Chambers has tentatively set October 7 as the opening date of the trial.
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