A defence witness told the International Criminal Court that Kenya’s top bureaucrat cannot give orders to the country’s police chief as has been alleged by the court’s prosecutor.

Thuita Mwangi, the Permanent Secretary of the Foreign Affairs Ministry, was testifying on Tuesday as the second defence witness for one of the suspects facing pre-trial proceedings before the ICC. A permanent secretary is a presidential appointee and the senior-most bureaucrat or technocrat in any ministry in the Kenyan government.

Mwangi told the court about his more than 10 years working relationship with Francis Kirimi Muthaura, who is Kenya’s Head of Public Service and Secretary to the Cabinet. Muthaura is one of three suspects undergoing confirmation of charges hearings before Pre-Trial Chamber II this week.

ICC Prosecutor Luis Moreno Ocampo wants Muthaura and the other two suspects to be charged with five counts of crimes against humanity for their alleged roles during the bloodshed that claimed more than 1,000 lives between December 2007 and February 2008. Moreno-Ocampo alleges Muthaura used his position as chairman of the National Security Advisory Committee to order the police to provide a “free zone” to the Mungiki criminal gang to carry out attacks against non-Kikuyus in the Central Rift region in retaliation for the killings of Kikuyus in Kenya’s North Rift region.

Mwangi, who has been an on and off member of the National Security Advisory Committee since 2005,  told the court that it was not the practice of the committee to issue orders to any department or agency. He said that this applied especially to operational matters of different security agencies.

“I believe the Police Commissioner would caution members _ and I know he has done many times _ we should not discuss operational issues,” during committee meetings, Mwangi said. He was responding to a question by one of Muthaura’s defense lawyers, Shyamala Alagendra, who was leading him in his evidence.

Mwangi also said that the police commissioner did not report to Muthaura even though Muthaura chaired the National Security Advisory Committee (NSAC). Mwangi said that being a presidential appointee, the commissioner reported to the president and the minister in charge of internal security.

He also said that Muthaura could not have had any dealings with Mungiki.

“That suggestion first of all is absolutely inconsistent with the position that Ambassador Muthaura and the whole NSAC had taken on the question of dealing with Mungiki. It sounds absurd,” Mwangi said.

Later, in response to a question by the lawyer for the victims, Morris Anyah, Mwangi went further to say such a proposition was “inconceivable”.

“Perhaps the only single issue we [the NSAC] have addressed over the years is the Mungiki and therefore I find it inconceivable,” that Muthaura would have any dealings with Mungiki, Mwangi said.

Between December 2007 and February 2008, the NSAC met daily, Mwangi said. The period before the December 27, 2007 General Elections, the committee met to assess security threats in light of Kenya’s past history of violence in some constituencies before elections, Mwangi said. And then once the postelection violence broke out following the disputed presidential results, the committee met to address security concerns as they arose, he said.

The role of the NSAC is to advise the Cabinet Security Committee, which is chaired by the president, Mwangi said. Muthaura is the secretary of that Cabinet committee in his capacity as Secretary to the Cabinet.

When he was cross-examined by prosecutor Adesola Adeboyejo, Mwangi said that he was not with Muthaura during the entire postelection violence period. He also said that by virtue of the position he held as Head of Public Service and Secretary to the Cabinet, Muthaura was not an ordinary civil servant. But Mwangi denied any knowledge of public complaints against Muthaura by Cabinet ministers alleging he uses his powers to interfere with their work.

“Your honour, in a democracy like Kenya where you have a fully functioning public service complaints by ministers directed to permanent secretaries is not unusual,” Mwangi said.

The prosecution then put Mwangi on the spot asking him about what happened when he became implicated in a multi-billion Kenyan shillings scandal involving Kenyan embassies in several countries and the procurement of new premises for those missions. Mwangi denied he was directly implicated. He also said that though he had “stepped aside” for about a year to allow investigations to proceed, he remained the Permanent Secretary of the Foreign Affairs Ministry.

“I never ceased. I was never suspended. I was never interdicted,” Mwangi said. “I stepped aside to allow investigations to be finalised involving the purchase and disposal of government assets including in Japan.”

In response to a question by Anyah, the victims’ lawyer, Mwangi said that any civil servant would obey an instruction given by Muthaura, but with certain caveats.

“To the extent that his instructions are consistent with the law, they would be obeyed,” Mwangi said.