Francis Kirimi Muthaura

19.04.2016 ( Last modified: 13.06.2016 )
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facts

Franics Kirimi Muthaura was born in Mariene, an Eastern Province in the Republic of Kenya on 20 October 1946. He is of Meru ethnicity. Muthaura is married and has three children.

Holding a Bachelor of Arts in Economics and Political Science and a Diploma in International Relations from the University of Nairobi, Muthaura began his career in the civil service under President Moi’s regime, where he got promoted to high profile diplomatic positions. In 1987 he became counsellor to the High Commission in London and got subsequently promoted to the position of Kenyan Ambassador to Belgium, Luxembourg and the European Community. In 1993 he moved to New York to work as Kenya’s ambassador to the Permanent Mission to the United Nations. Finally he was appointed as the head of the Public Service and Secretary to the Cabinet in 2003.

As a Chairman of the National Security and Advisory Committee he had an essential role in the coordination of intelligence and security activities. As head of Public Service, all public servants report to him.

On 30 December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki, candidate for the Party of National Unity (PNU) had won the 27 December 2007 presidential election. This marked the beginning of an extremely violent conflict between the supporters of Orange Democratic Movement (ODM) and the government forces supporting the PNU, over allegations of electoral fraud.

According to the Prosecutor of the International Criminal Court (ICC), in response to William Ruto, Henry Kosgey and Joshua Sang’s planned attacks on PNU supporters, as well as to deal with protests organized by the ODM, Muthaura, together with Uhuru Muigai Kenyatta and Mohammed Hussein Ali (see “related cases”) developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power. With that aim, Kenyan Police Forces were allegedly deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera (Kibera Division, Nairobi Province).

As a consequence, between the end of December 2007 and the middle of January 2008, the Kenyan Police Forces, under the authority of the National Advisory Committee, of which Muthaura was the Chairman, allegedly indiscriminately shot at and killed more than a hundred ODM supporters in Kisumu and Kibera.

Furthermore, Muthaura, in his capacity as Chairman of the National Security Advisory Committee, allegedly ordered that the Kenya Police shall not interfere with the movement of pro-PNU youth, including the Mungiki. As a consequence, the pro-PNU youth attacked civilian ODM supporters by going from door to door and by setting up road blocks for intercepting vehicles, killing over 150 ODM supporters.

The contributions of Muthaura to the implementation of the common plan includes the adoption of the plan, procuring the services of the Mungiki and pro-PNU youth, providing the Mungiki and pro-PNU youth with logistical and other support, authorizing the Kenyan Police Forces to participate in some attacks and not to intervene in other attacks and authorizing the Kenyan Police Forces and the Mungiki and pro-PNU youth to implement the common plan.

The violence, according to the Prosecutor, resulted in more than 1,100 people dead, 3,500 injured, approximately 600,000 victims of forcible displacement, at least hundreds of victims of rape and sexual violence and more than 100,000 properties destroyed in six out of eight of Kenya’s provinces. Many women and girls perceived as supporting the ODM were raped.

On 15 December 2010, the Prosecutor of the ICC requested the Pre-Trial Chamber II of the ICC to issue summonses to appear for Uhuru Muigai Kenyatta, together with Francis Kirimi Muthaura and Mohammed Hussein Ali. According to the Prosecutor, there are reasonable grounds to believe that they are criminally responsible under article 25 of the Rome Statute (individual criminal responsibility) for murder, rape and other forms of sexual violence, deportation or forcible transfer, persecution on political grounds, and other inhumane acts, as crimes against humanity, pursuant to article 7 of the Rome Statute.

legal procedure

On 15 December 2010, the Prosecutor of the International Criminal Court (ICC) requested the Pre-Trial Chamber II of the ICC to issue summonses to appear for Uhuru Muigai Kenyatta, together with Francis Kirimi Muthaura and Mohammed Hussein Ali.

According to the Prosecutor, there are reasonable grounds to believe that they are responsible as co-perpetrators, or in alternative, part of a group of persons acting with a common purpose pursuant to article 25(3)(a) or (d), of the following crimes that fall under the ICC’s jurisdiction:

– Murder as a crime against humanity pursuant to article 7(1)(a) of the Rome Statute;
– Deportation or forcible transfer of population as a crime against humanity, article 7(1)(d);
– Rape and other forms of sexual violence as a crime against humanity, article 7(1)(g);
– Other inhumane acts as a crime against humanity, article 7(1)(k);
– Persecution as a crime against humanity, article 7(1)(h).

In addition, to requesting summonses to appear for Uhuru Muigai Kenyatta, together with Francis Kirimi Muthaura and Mohammed Hussein Ali (case 2), the Prosecutor requested summonses to appear for William Ruto, Henry Kosgey and Joshua Sang (case 1).

On 8 March 2011, Judge Ekaterina Trendafilova and Judge Cuno Tarfusser of Pre-Trial Chamber II, by Majority, issued the decisions on the applications submitted by the Prosecutor to summon Francis Kirimi Muthaura, Henry Kiprono Kosgey, William Joshua Arap Sang, Samoei Ruto, Uhuru Muigai Kenyatta and Mohammed Hussein Ali to appear before the Court on 7 April 2011.

On 31 March 2011, the Kenyan government submitted an application, pursuant to Art. 19 of the Rome Statute, to the ICC, seeking to quash the cases against the six senior leaders, i.e. Francis Kirimi Muthaura, Henry Kiprono Kosgey, Uhuru Kenyatta, William Ruto, Mohammed Hussein Ali and Joshua Sang, based on grounds of inadmissibility.

On 8 April 2011, the Pre-Trial Chamber II of the ICC scheduled the confirmation of charges hearing in the cases of Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali to start on 21 September 2011. The ICC will then determine whether there is sufficient evidence to establish substantial grounds to believe that each suspect committed each of the crimes charged. If the charges are confirmed, the Pre-Trial Chamber commits the person for trial before a Trial Chamber.

On 23 January 2012, the ICC Pre-Trial Chamber confirmed the charges of crimes against humanity against Muthaura. In the same case, the judges confirmed the charges against Kenyatta but declined to confirm the charges against Mohammed Hussein Ali on the basis of insufficient evidence.

The Chamber was satisfied that the evidence established substantial grounds to try Muthaura and Kenyatta, under article 25 (3)(a) of the Rome Statute, to be responsible for the crimes against humanity of murder (article 7 (l)(a)), forced displacements of population (article 7(l)(d)), rape (article 7(l)(g)), persecution (article 7(l)(h)) and other inhumane acts (article 7(l)(k)) committed during the post-electoral violence of 2007-2008 in Kenya.

On 9 July 2012, the ICC has set the commencement of the trial on 11 April 2013. On 7 February 2013, the Defence requested the Trial Chamber to refer three preliminary issues back to the Pre-Trial Chamber for reconsideration. On 7 March 2013, pending the determination of the issues raised by the Defence, Trial Chamber V postponed the start of the trial and set a provisional commencement date on 9 July 2013. On 13 March 2013, the Prosecutor, claiming there is no reasonable prospect of a conviction, filed notification of the withdrawal of the charges against Muthaura.

context

2007 PRESIDENTIAL ELECTIONS AND ENSUING VIOLENCE

On 27 December 2007, presidential elections were held in Kenya. Mwai Kibaki was elected President, but the voting took place along ethnic lines and the opposition as well as international observers claimed that the elections had been manipulated. Supporters of Raila Odinga, the opponent of Mwau Kibaki, staged several non-violent protests, but also engaged in violent demonstrations in several parts of the country. The Police shot at a number of demonstrators causing more violent protests. Civil unrest and targeted ethnic violence ensued. It was first directed mainly against the Kikuyu people, the community of which Kibaki is a member, in the Rift Valley Province. This violence escalated with the killing of over 30 unarmed civilians in a church near Eldoret (Western Kenya) on 1 January 2008. Some of the Kikuyu people engaged in retaliatory violence against ethnic groups supportive of Odinga, primarily the Luos and the Kalenjin people. The slums of Nairobi witnessed intense violence including ethnically motivated attacks, outrages at extreme poverty and actions of criminal gangs. The violence continued sporadically for several months, particularly in the Rift Valley.

In January 2008, former UN Secretary General Kofi Annan successfully brought the two sides to negotiation. On 28 February 2008, Kibaki and Odinga signed a power-sharing agreement called the National Accord and Reconciliation Act, which established the office of prime minister and created a coalition government. Odinga became the Prime Minister of the government, which was sworn in on 17 April 2008.

COMMISSION OF INQUIRY AND TRUTH, JUSTICE AND RECONCILIATION COMMISSION

By the end of January 2008, around 1,300 people were killed and approximately 300,000 were displaced. The government of Kenya established several inquiry commissions including the Commission of Inquiry on Post-Election Violence (Waki Commission) to investigate the clashes that ensued after the 2007 presidential elections. On 15 October 2008, the Commission submitted the so-called “Waki report”, recommending the creation of an independent court with international oversight to try cases of international crimes and allegations that ministers, legislators and businessmen funded and fomented the violence. Names of the alleged perpetrators were not disclosed publicly, but to Kofi Annan, who handed them over to the ICC Prosecutor in July 2009. The Commission gave the Parliament one year, beginning July 2009, to establish such a court after which, it would disclose the names of the alleged perpetrators to the International Criminal Court (ICC).

In October 2008, the Parliament established the Truth, Justice and Reconciliation Commission to investigate and recommend appropriate action regarding abuses committed between the country’s independence in 1963 and the conclusion of the power-sharing deal of 28 February 2008. The Commission was supposed to be complementary to prosecution of human rights abuses either by an international tribunal in Kenya or the ICC. The Commission does not have the power to prosecute, but to recommend prosecutions, reparations, amnesty in exchange for the truth by the perpetrators who did not commit gross human rights violations. Victims may apply for reparations if they qualify.

In February 2009, the Parliament rejected the Constitution Amendment Bill, which would have allowed for the creation of a special court for the prosecution of crimes committed during the post-elections violence. The “Waki Commission” disclosed the names of the alleged perpetrators to the ICC Prosecutor. On 31 March 2010, the ICC authorized the Prosecutor to open an investigation into the situation in Kenya in relation to alleged crimes against humanity falling within the ICC jurisdiction. Three persons are currently indicted at the ICC: William Samoei Ruto, Joshua Arap Sang and Uhuru Muigai Kenyatta. Furthermore, the ICC has issued an arrest warrant against Walter Osapiri Barasa.

2013 PRESIDENTIAL ELECTIONS

On 4 March 2013 general elections were held in Kenya. These were the first general elections held under the new constitution from 2010, and the first that were run by Kenya’s Independent Electoral and Boundaries Commission, a regulatory agency in charge of supervising referenda and elections. Uhuru Kenyatta was declared President-elect. He defeated his opponent, the then incumbent President Raila Odinga, in what observers considered mostly fair and transparent elections. William Samoei Ruto was appointed Kenyatta’s Deputy-President. The fact that both Kenyatta and Ruto face charges of crimes against humanity before the ICC, which was publicly known before the elections, did not prevent them from winning over the majority of voters.

AFRICAN UNION AND ICC

With indictment against Kenya’s Uhuru Kenyatta and arrest warrant for Sudanese President Omar al-Bashir, the ICC is seeking to prosecute two incumbent African heads of state. The tension between African countries and the ICC, which have existed since the Court’s creation, increased considerably with a controversial decision the African Union took on 12 October 2013. The 54-member organization of African states unanimously adopted a resolution asking the UN Security Council to defer the trials against any serving head of state or government or anybody acting during his term in office. The AU decided further, Kenya’s President Kenyatta should refuse to attend his trial before the ICC. On 10 September 2013, the AU sent a letter requesting that the ICC defer the investigation and prosecution of acts connected to 2007 post-election violence in Kenya, and allow the newly reformed national judiciary to investigate and prosecute. In addition, in October 2013, Kenya’s UN ambassador sent a letter to UN Security Council to ask that the ICC defers the trials against Kenyan officials.

The Organization has repeatedly accused the ICC of being one-sided, because it has so far only tried African cases.

In September 2013, the Kenyan Parliament started debating on withdrawing from ICC. The motion to suspend any cooperation with the ICC was approved by the National Assembly. This in no manner affects the trials which have already started before the ICC. In order to end its membership, Kenya has to officially submit the request to the UN.