Karim Khan QC, the defense lawyer forKenya’s head of public service Francis K. Muthaura today told Pre-Trial Chamber judges of the International Criminal Court (ICC) in The Hague that prosecutors have no evidence against his client, who prosecutors say bears responsibility as an indirect co-perpetrator for serious crimes committed during the post-election violence in Kenya from late December 2007 to late January 2008.

“There is zero evidence against Ambassador Muthaura,” Mr. Khan told the judges today.

Mr. Khan was presenting his defense for Mr. Muthaura after prosecutors had concluded their submissions against all three suspects in the case. As they concluded their evidence today, prosecutors told the judges that Mr. Muthaura, Deputy Kenyan Prime Minister Uhuru Kenyatta, and former Police Commission and now Post Master General Mohamed Hussein Ali bear individual criminal responsibility for the crimes committed during the post-election violence in Kenya. Prosecutors said that Mr. Muthaura, as head of Kenya’s public service gave instructions to Mr. Ali for police officers to give a free zone to perpetrators of violence against supporters of the Orange Democratic Movement (ODM). These directives, prosecutors say, were put into effect by Mr. Ali when he allegedly ordered his police officers not to stand in the way of the Mungiki, an organization that prosecutors say was coordinated and directed by Mr. Kenyatta to commit crimes.

As he presented his defense on behalf of Mr. Muthaura, Mr. Khan told the judges that a question needs to be answered as to how the suspects ended up being at the ICC. He explained that the ICC got involved in Kenya because of a recommendation by the Commission of Inquiry into the Post-Election Violence (CIPEV) in Kenya. He explained that CIPEV was formed based on a recommendation by the National Security Advisory Committee of which Mr. Muthaura was Chairman. The recommendation to establish CIPEV, Mr. Khan said, was made on January 14, 2008 and that was before crimes were committed in Naivasha and Nakuna Districts inKenya. Prosecutors say that Mr. Muthaura bears responsibility for the crimes committed in these two districts.

On January 15, 2008, Mr. Khan said that Mr. Muthaura wrote a letter toKenya’s Attorney General expressing the need for a commission of inquiry and for people responsible for crimes to be held accountable.

Mr. Khan asked the judges whether Mr. Muthaura would put a noose over his own neck by asking for an investigation to hold perpetrators responsible for crimes and then go ahead and commit the same crimes. He told the judges that Mr. Muthaura was doing this as a devoted civil servant who came to his tasks with clean hands.

Mr. Khan told the judges that prosecution evidence that the Mungiki youths perpetrated violence because they wanted to keep the Party of National Unity (PNU) in power was false. He argued that there was evidence to prove that the Mungikis infact supported the ODM in the 2007 elections, not the PNU as alleged by the prosecution. Mr. Khan showed a video of an interview with the former leader of the Mungiki Maina Njenga who said that he wanted ODM leader Raila Odinga to win the 2007 elections. He also referenced a National Security Intelligence Services (NSIS) report, which indicated that the Mungikis were supporting the ODM in 2007 because the party had promised to recognize the banned sect and provide jobs for its members.

Mr. Khan also read a portion of a statement made by Prosecution’s own witness, identified as Witness No. 12, who said that the Mungikis did not support the PNU, but rather, they had their own way of moving their people to vote for the ODM.

The Mungiki was totally in support of the side of the ODM because the incumbent PNU government was making efforts to eradicate them, Witness 12 is reported to have said.

Referencing prosecution evidence that the Mungiki youths had held a meeting at the State House on November 26, 2007 where President Mwai Kibaki and Mr. Muthaura were present, Mr. Khan read a statement from President Kibaki that no such meeting had taken place. The president in his statement said that the only meeting that had taken place on that date was a meeting with some youths with whom he discussed plans to create more jobs for youths. Mr. Muthaura was present at this meeting. Mr. Khan showed a video showing Mr. Kibaki meeting with youths at State House, arguing that that was the meeting referenced by prosecutors as a meeting with Mungiki youths.

Mr. Khan told the judges that the prosecution had got the wrong man to answer the crimes committed by other people. He assured the judges that  he will establish the “flimsiness” of the prosecution’s evidence in the next two days, as he presents his case for Mr. Muthaura.

“The charges raised against Ambassador Muthaura are unprecedented in their flimsiness,” Mr. Khan said.