Tuesday, 13.03.2012 Nairobi, Kenya    Category: Media   0 comments

The Editor, The Dally Nation,

I am counsel for Dr. David Nyekoreach-Matsanga. On his behalf, I hereby request the right to reply to two disparaging and vituperative opinion pieces published In the Saturday Nation of March 10, 2012 at page 13 by Malna Kiai under the title  ' With  a police force like this, we have no option  but to support the ICC process" and Makau Mutua in the Sunday Nation  of 11March 2012 Sunday Review page 19 tilted "Did key Ocampo witness recant his testimony?".

In his Saturday Nation opinion piece, Maina  Kiai betrays his obsession in the support  of the ICC indictments  against some prominent  Kenyans to the extent of using uncivil language to impugn the reputation  of anyone who faults the process and the controversial methods the Prosecutor Mr. Luis Moreno Ocampo has employed in pursuing this matter of Kenya. Unlike any other Prosecutors of an International Criminal Tribunal, In  recent  memory, he  has litigated  much  of  his  case, at  times concerning sensitive matters in the public media. It is in this context that the verbiage and Incendiary blackmail of Maina Kiai and Dr Makau Mutua and the startling revelations about matters that should belong only within the special knowledge of the Prosecutor, must be seen and analyzed.

Mr. Maina Kiai falsely accuses my client of being a hired gun for the government of Kenya. A man who accuses the police of not respecting the rule of law has on occasion displayed such disregard for the  rule  of law  and fundamental freedoms  and the  ICC process in particular  to  the  extent  that uninvited he ventures to make reckless accusations against my client with no proof to substantiate. His sole credential   In doing this, it may reasonably been inferred  from his invectives, is to  seek political relevance, take advantage of the pending process to exact retribution against Individuals he may not like or whose stand on issues conflict with his.

It is evident from this opinion, as well as past publications by Mr. Maina Kiai that he has invited himself deep into the proceedings and in so doing done more harm to the Prosecutor's case than anyone else. There are several startling revelations concerning the conduct of the investigations in the Kenyan case that we know through press articles published by Prof. Makau Mutua and Mr. Maina Kiai. The present ones fall within that category. In fact Mr. Maina Kiai and Prof. Mutua have tampered with witnesses since the ICC matter started in Kenya. We shall produce that evidence in court when the cases go for before Judges. Police should have started with arrest of Maina Kiai for tampering with ICC process in Kenya.

It is through these two perhaps, that the world learnt much about the developments in the conduct of the investigations by the Prosecutor of the ICC in the Kenya case.It is these two who have written persistently  about  the  nature  of  the  evidence the  Prosecutor intended  to  present  during  the confirmation hearing even before it was presented.

Judging from  Press reports in our possession, it is these two, who have held out  themselves as persons who possess the key to decisions made in the Prosecutor's office and present an appearance of professional soothsayers of the outcome of the judicial process. These are the people who should be investigated  for  incitement, interfering  with  the  judicial process, malicious publications  and incitement.

Prof. Mutua and others organized a meeting with  the Chief Prosecutor in New York to  plot  the detention of the four Kenyans before the ICC. Kenya's envoy in UN had to Intervene to stop such tampering with ICC [process where the accusers of my client were at the centre of the organizational structures of the meeting.

Prof. Makau Mutua perpetrates the crimes he is accusing my client in the most egregious manner bordering on Impunity.  He has not only exposed the identity of the witness but he provides details which only an insider to the Prosecutor office could possess. Should Mr. Ocampo or the Kenyan Police treat these disclosures and reckless accusations by Mr. Maina Kiai and Prof. Makau Mutua with indifference, then there must be a fundamental reason for doing so.

By their reckless publications, Mr. Maina Kiai and  Prof. Makau Mutua  have caused irreparable damage not just to the credibility of the alleged witness but to the integrity  of the ICC proceedings. Their publications in which they revealed and put on the public scrutiny matters which were supposed to be solely within the knowledge of the Prosecutor's office will make compelling exhibits in a court of law.

In calling the Police, they forget the fact that the Police must first ascertain the motives, actions and conduct of the messenger prior to ascertaining the contents of the message. And we submit, both opinion writers have acted with so much impunity  and transgression of the law to the extent that fundamental freedoms enshrined in international conventions of which Kenya is a state party ,and the fair trial guarantees which are the bedrock of all civilized criminal prosecutions including the ICC mean nothing to them.

On the alleged revelation of the identity  of a protected  witness, it can reasonably be inferred from Newspaper publications in Kenya and the press opinions of Prof. Makau Mutua and Mr. Maina Kiai that the identity of Prosecution witnesses have been subject of public discussion, fuelled In part by the Prosecutor himself in litigating much of his case before the public media on that and other issues even before my client obtained the retraction of a witness he did not know was a protected witness or if he were the conditions of his protective status are largely unknown. We are learning that only now from Dr. Makau Mutua in the startling and reckless revelations in his opinion piece. He must have reasonable access to the ICC file of this witness to know these details.

The movement of witnesses in and out of Kenya has been widely reported in the press, NGOS, and even when one allegedly had a confrontation with a protection officer or when one returned to Kenya and was brought back to his country of abode. In another publication, a well known association, which is not affiliated with the ICC in a published report stated that it had provided protection to ICC witnesses.   How would they have done so without knowing their identity?   Prof. Makau Mutua a supposed expert on what takes place within the Chambers of the ICC and the Prosecutor's office judging from his publications on these matters provides even greater details than previously known. We take note of this. We want Dr. Makau and his cronies in the ICC to initiate proceedings and the entire truth will be told.

He goes further to opine about what will happen in the cases against the indicted prominent Kenyans and my client hereafter.   A distinguished intellectual that he is, he should have made an effort to read his opinion piece before publication. He must have been in such a fit of anger that he failed to do so. He provides a possible explanation why my client like many to whom the deposition of the retracting witness was taken would know this witness and why he might not have perpetrated any crime what so ever in publishing the material that came into his possession.

Prof. Mutua Makau and Maina Kiai by their publications claim a monopoly of the right to write about the ICC process and will stop at nothing to incite, insult, post incendiary publications  against the Government of Kenya, the Kenya Police Force, any academic or legal practitioner  who ventures to proffer an opinion contrary to theirs. Let me remind them that to the extent that the case is at the ICC the proceedings and events unfolding there will be subject  to scrutiny, by the  press worldwide, committed  academics, legal practitioners  and policy makers. It is no longer within their exclusive preserve nor that of anyone in Kenya.

A court process is different from an opinion page of a newspaper. Therefore, someone who calls for the arrest of another, must be prepared to justify why in any process that may arise pursuant to that appeal, he should not be summoned for intensive cross-examination of his acts and conduct which might have directly or indirectly influenced the process. Makau has on several occasions told Kenyans how the cases would go. How did he get all these facts?

The two Individuals have gone further to assailed the character of my client, pointing to his actions in brokering the Peace Process that brought peace to Northern Uganda, a process that was supported by the UN,EU and AU. My client acted after EU, AU, UN had agreed that LRA needed representation in the mediation process that was in Juba. Had the two of them used the weight of the offices they hold or held ,and the public trust  placed in them to be agents of peace rather  than agents of conflict, hatred and division, Kenya would have been at peace before and after the elections.

My client represented His Excellency President Mugabe and he is proud for having the honour  of rendering great services to  a great African  statesman against neo-colonial agents in that capacity. That is the type of service Prof.Mutua and  Maina Kiai should seek and discharge for the good of Africa rather than their obsession with vindictive justice that to their surprise will never bring reconciliation in Kenya. It has not done so in Rwanda, Yugoslavia, Sierra Leone and elsewhere. Rather it is the various efforts  towards  reconciliation  initiated  by people who hold positions in society similar  to theirs, in those countries and elsewhere that have paved the irreversible way to reconciliation.

My client  therefore  totally  rejects their  unprovoked campaign of blackmail and the dishonor they have so far brought on the ICC process which they purport to support and even speak for, and Kenya, in the  result  compromising the ability  of any reasonable Tribunal to  rely on any information or evidence gathered  and submitted  by them purportedly  to  assist the  process. The standing  and functions they profess to holding demands some level of civility in public discourse, which I regret is in short supply most the time they write on this ICC process.

They are advised to stop this blackmail forthwith. We invite  the Daily Nation Newspaper to avoid possible litigation by making sure that  articles published  therein  meet internationally recognized ethical standards of journalism.


Chief Charles A.Taku,
Counsel for Dr. David Matsanga.
+254 723312564




About me

Name:David Nyekorach - Matsanga (PhD)
Work: Publisher, Owner, Chairman of Africa World Media Ltd Specialist: Political Science, African History, Governance, Democrary, Great Lakes Region, Conflict Resolution, Media Impact on Africa, International Management and Lobby work
Location: London, Surrey UK

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