LINK TO PARTICULARS OF CHARGES AGAINST FORMER POLICE CHIEF MOHAMED HUSSEIN ALI, SECRETARY TO THE PRESIDENT FRANCIS KIRIMI MUTHAURA AND DEPUTY PRIME MINISTER AND MINISTER OF FINANCE UHURU KENYATTA

D. CONCISE STATEMENT OF THE FACTS PURSUANT TO ARTICLE 58(2)(C)
OF THE ROME STATUTE

16. In response to attacks directed against PNU supporters in the Rift Valley, and in order to deal with protests organized by the ODM, prominent PNU members and/or Government of Kenya officials, MUTHAURA, KENYATTA and ALI (“Principal Perpetrators”), adopted and implemented a common plan to attack civilians perceived to support the ODM. The attacks were designed to consolidate the PNU’s hold on power by suppressing and crushing any protests by ODM supporters and penalizing ODM’s supportive communities.

17. MUTHAURA and ALI utilized the Kenyan Police Forces to perpetrate attacks against ODM supporters in Kisumu and Kibera between the end of December 2007 and middle of January 2008 in order to suppress any protests by them. With the support of ALI, MUTHAURA and KENYATTA also used the Mungiki, a criminal
organization, and pro‐PNU youth to perpetrate the attacks against ODM supporters in Nakuru and Naivasha during late January 2008.

18. The contributions of MUTHAURA, KENYATTA and/or ALI to the implementation of the common plan includes:

(1) adopting the plan;

(2) procuring the services of the Mungiki and pro‐PNU youth;

(3) providing the Mungiki and pro‐ PNU youth with logistical and other support;

(4) authorizing the Kenyan Police Forces to participate in some attacks and not to intervene in other attacks; and

(5) authorizing the Kenyan Police Forces and the Mungiki and pro‐PNU youth to implement the common plan.

19. The activation, mobilization and coordination of the Kenyan Police Forces and the Mungiki and pro‐PNU youth by the Principal Perpetrators was essential to the commission of the widespread and systematic attacks against perceived ODM supporters.

The Principal Perpetrators had the capability to commit the widespread and systematic attacks against perceived ODM supporters. Of the eight provinces in Kenya, three provinces were particularly affected by the attacks orchestrated by the Principal Perpetrators: Rift Valley, Nairobi and Nyanza Provinces.

20. As the Head of the Public Service and Secretary to the Cabinet, MUTHAURA is at the top of the administrative hierarchy and all public servants and senior State House officials, including ALI as head of the Kenya Police, reported to him.

21. At all times relevant to the Application, MUTHAURA and ALI were members of the National Security Advisory Committee (“national security committee”) which was chaired by MUTHAURA. The national security committee is a central intelligence sharing, security advisory and coordinating body within the Kenyan government. Its composition is mirrored in the Provincial Security and Intelligence Committee (“provincial security committee”) and District Security and Intelligence Committee (“district security committee”).

As Chairman and a member of the national security committee respectively, MUTHAURA and ALI were
responsible for ensuring the implementation of decisions of the committee and directing the provincial and district security committees on strategic and operational matters. By virtue of his position in the security committee, MUTHAURA exercised additional authority over ALI and the Kenyan Police Forces.

22. During the PEV, MUTHAURA convened weekly or bi‐weekly national security committee meetings depending on the gravity of the security situation. General strategic and operational orders from the national security committee were transmitted to the provincial security committees which were responsible for reviewing, directing and coordinating security measures at the provincial level, and these orders were then passed on to the district security committees for action at the district level.

23. In their positions as Chairman and a member of the national security committee, MUTHAURA and ALI had formal access to intelligence gathered through a vertical structure organized from the ground level (district and provincial levels) all the way up to the central level. The presence of representatives from government administration, police and intelligence entities involved in maintaining security in the security committees at central, provincial and district levels ensured an effective intelligence and information sharing system. ALI also received daily intelligence reports prepared by the National Security and Intelligence Service.

24. Despite possessing intelligence indicating that violence would occur in specific locations across the country, MUTHAURA and ALI nevertheless utilized the Kenyan Police Forces to implement the common plan in two ways. First, they directed them to target perceived ODM supporters in attacks in Kisumu and Kibera.
Second, in Nakuru and Naivasha, they directed the Kenyan Police Forces not to intervene in attacks by the Mungiki and pro‐PNU youth against perceived ODM supporters.

25. KENYATTA was the focal point between the Mungiki and MUTHAURA in the implementation of the common plan. He used his connections with different Mungiki leaders to mobilize members of the organization and other pro‐PNU youth to launch retaliatory attacks against civilian supporters of the ODM. KENYATTA had a long and close association with the Mungiki from as early as March 2002 when the Mungiki officially endorsed him as their legitimate presidential candidate.

26. Through KENYATTA, Mungiki leaders entered into a political agreement with senior Government of Kenya officials in November 2007. They negotiated an end to the police crackdown against members of the organization along with a list of other demands in exchange for providing political support to the PNU.
MUTHAURA was charged with meeting these demands and he collaborated with KENYATTA in dealing with the Mungiki. After the elections, MUTHAURA and KENYATTA took the association with the Mungiki to a criminal level by directing its leaders to attack perceived ODM supporters in retaliation for the killing of the
Kikuyu in the Rift Valley.

27. The cooperation between the Kenyan Police Forces and the Mungiki and the pro‐PNU youth is confirmed by the lack of police intervention before, during and after the attacks. Despite knowing the identity and location of Mungiki perpetrators, the Kenyan Police Forces did not prevent the attacks or punish its instigators. The few mid‐level perpetrators who were arrested were rapidly released, without any
charges, after the intervention of local civil or political authorities.

28. In each of the identified areas, the excessive use of armed force, killings, rapes, forced circumcision, systematic and coordinated attacks on houses and properties identified as belonging to perceived ODM supporters, destruction of such properties, beatings and mutilations were some of the methods used by both the Kenyan Police Forces and Mungiki and pro‐PNU youth in executing the plan of the Principal Perpetrators.

29. MUTHAURA, KENYATTA and ALI collectively contributed to the commission of the crimes described in this Application by recruiting, funding, arming and/or granting impunity to the Mungiki and pro‐PNU youth. MUTHAURA and ALI also supervised the cooperation of the Kenyan Police Forces throughout the course of the commission of the crimes. By using the Kenyan Police Forces and Mungiki and pro‐PNU youth, they shared and sought to further the common plan of carrying out widespread and systematic attacks against a civilian population to crush any protests by ODM supporters and severely penalize ODM supporters.

30. The Prosecution submits that on the basis of available evidence and without prejudice to other possible crimes within the jurisdiction of the Court there are reasonable grounds to believe that during the PEV, including but not limited to the time period between 27 December 2007 and 29 February 2008, MUTHAURA,
KENYATTA and ALI, committed the following crimes against humanity:

murder under Article 7(1)(a) of the Statute;

rape and other forms of sexual violence under Article 7(1)(g) of the Statute; deportation or forcible transfer of population under Article 7(1)(d) of the Statute;

other inhumane acts causing serious injury under Article 7(1)(k) of the Statute; and

persecution based on political affiliation under Article 7(1)(h) of the Statute.

31. The Prosecution submits that there are reasonable grounds to believe that the requirements of indirect co‐perpetration or of common purpose criminal liability pursuant to article 25(3)(a) or (d) have been met.

3. Major General Mohammed Hussein ALI
ALI was born in 1956 in Eldoret, Rift Valley Province in the Republic of Kenya.26 He is an ethnic Somali and married with children. He attended Uasin Gishu School and then Kolanya Boys High School in Busia District. He joined the Kenyan Army in 1977 and trained in India, the United States and Egypt. During his military career he served as a military attaché in Zimbabwe and Uganda, and was the Commanding Officer of the Western Brigade of the Kenya Army Paratrooper Battalion and the Air Cavalry Regiment in Embakasi. He was eventually promoted to Brigadier in 2003 and Major General in 2005.

In 2004, he was appointed to the position of Commissioner of the Kenya Police whilst he was a Brigadier in the Kenya Air Force.29 By virtue of this appointment, ALI became the first person from outside the Kenyan Police Forces to occupy the position.

He held the position of Commissioner of Police throughout the period of the post election violence.

In January 2007, as part of efforts to improve the security situation in the country, the Kenya Police under ALI’s leadership began cracking down on the Mungiki. The crackdown was severely criticized by human rights organizations. During his tenure as Commissioner of Police, ALI, among other things, instituted a rigid and centralized reporting structure for the Kenya Police.

This structure was criticized in 2009 in a report by the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston. The report recommended that ALI was a stumbling block to police reform and called for his resignation.

On 8 September 2009, ALI was transferred to the position of the Chief Executive of the Postal Corporation of Kenya.

F. CRIMES WITHIN THE JURISDICTION OF THE COURT WHICH MUTHAURA, KENYATTA AND ALI HAVE COMMITTED PURSUANT TO ARTICLE 58(2) OF THE ROME STATUTE

Count 1
Murder constituting a crime against humanity
(Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co‐perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town
(Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(a) and 25(3)(a) or (d) of the Rome Statute.

Count 2
Deportation or forcible transfer of population constituting a crime against humanity (Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co‐perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the deportation or forcible transfer of civilian population supporting the Orange Democratic Movement political party in or around locations including Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(d) and 25(3)(a) or (d) of the Rome Statute.

Count 3
Rape and other forms of sexual violence constituting a crime against humanity (Articles 7(1)(g) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co‐perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely rape and other forms of sexual violence against civilian supporters of the Orange Democratic Movement political party in or around
locations including Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(g) and 25(3)(a) or (d) of the Rome Statute.

Count 4
Other inhumane acts constituting a crime against humanity (Articles 7(1)(k) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co‐perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely the inflicting of great suffering and serious injury to body or to mental or physical health by means of inhumane acts upon civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(1)(k) and 25(3)(a) or (d) of the Rome Statute.

Count 5
Persecution as a crime against humanity (Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute)

From on or about 27 December 2007 to 29 February 2008, MUTHAURA, KENYATTA and ALI, as co‐perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity, namely persecution, when co‐perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, rape and other forms of sexual violence, other inhumane acts and deportation or forcible transfer, in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of
Kenya, in violation of Articles 7(1)(h) and 25(3)(a) or (d) of the Rome Statute.