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.
|