Expert Report by Miguna Miguna (First Draft Dated 24 Oct 2013)

Confidential
Defence Team of William Samoei Ruto before the International Criminal Court
Prosecutor v. William Samoei Ruto and Joshua Arap Sang

(ICC-01/09-01/11)
EXPERT REPORT ON THE ORANGE DEMOCRATIC MOVEMENT

(“ODM”)
ORGANISATIONAL STRUCTURE, FUNCTIONING AND POLITICAL
CAMPAIGNS: 2005-2008
Prepared on 24 October 2013
BY MIGUNA MIGUNA
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INDEX
Item Description Page No.
Certificate of Authenticity 5
PART I
1. Introduction: Case Information 6
PART II
2. Role and Duties of an Expert Witness 6
PART III
3. Scope of the Expert Report 7
PART IV
4. Qualifications and Basis of Expertise 7
a) Basic Background, Academic and Professional Qualifications 7
b) Relevant political background, experience and expertise 9
PART V
5. The Contents of the Expert Report 13
a) Formation and Structure of the “Orange Democratic Movement” 13
i) Relevant historical background: The genesis of the ODM 13
ii) ECK Chairman Samuel Kivuitu’s Orange Gift to Kenya 22
iii) The Orange NO Campaign assembles an impressive and diverse team 23
iv) The crystallisation of the ODM Platform 25
v) The main reasons why the ODM opposed the Wako Draft in 2005 31
Wako draft prepared unprocedurally without public participation 31
Seeking real change through a new people-focused constitutional order 32
Devolution/Majimbo was never about ethnicity or ethnocentricity 33
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Issue of corruption 37
Issues of equality regarding persons with disability 38
Towards an equitable and just Kenya 38
vi) Najib Balala coined the phrase “Orange Democratic Movement” 39
vii) The Orange NO Campaign/ODM Strategy in 2005 40
viii) How the issue of land and property was tackled 41
ix) Raila Odinga approached William Ruto to join ODM 42
x) The Orange NO Campaign/ODM was issue-and-fact-based 43
xi) The Orange NO Campaign/ODM Secretariat’s address & structure 43
b) The final break-up and collapse of the NARC 45

c) Milton Mugambi Imanyara registered the ODM in December 2005 46
d) Orange Democratic Movement-Kenya is born [2006] 47
e) Kalonzo runs away with ODM-K and Imanyara gives Raila the original ODM 53
f) ODM’s Constitution, Manifesto and Policies from August to 30 December 2007 55
Constitution 55
ODM’s main governance principles during and after the 2007 general elections 56
ODM Manifesto 57
ODM’s campaign message and activities were peaceful and legal 61
g) Structure and organogram of ODM’s 2007 Leadership and Campaign 68
Formal (titular) leadership structure (Art. 7) 69
Formal operational organs of the Party (Art. 8) 69
Informal (de facto) leadership structure 70
h) ODM Campaign Secretariats and office holders in 2007-2008 72
• The Pentagon House/Secretariat 72
• ODM National Secretariat/ Orange 75
• Rainbow House/Strategic Team 79
• 49 Communications 80
• The Titan House/Operations 80
• The Raila Odinga Centre (“ROC”) 81
i) October 2007 to 28 February 2008 82
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j) Mr. Ruto’s role, responsibilities, functions and conduct during the 2007 elections 105
PART VI
6. Proposition: 111
Comments and observations on the above proposition 111
PART VII
7. Comments and observations on “Annex 4” to the TOR 117
General Observations 117
Comments on “Annex 4” 118
PART VIII
8. What I believe caused the violence 124
Immediate causes of the conflict 124
Root causes of the violence 128
Do I believe William Samoei Ruto was involved, in any way, in the violence 133
Conclusion 142
PART IX
9. The Literature and other material used in preparing the Expert Report 144
Volume One of the Expert Bundle of Documents 144
Volume Two of the Expert Bundle of Documents 147
Volume Three of the Expert Bundle of Documents 150
Volume Four of the Expert Bundle of Documents 152
Volume Five of the Expert Bundle of Documents 157
PART X
10. Mr. Miguna Miguna’s sketch of ODM leadership structure 158
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PART I
1. INTRODUCTION: CASE INFORMATION

a) Mr. William Samoei Ruto, along with Mr. Joshua Arap Sang, have been charged by the
Prosecutor of the International Criminal Court (“ICC” or “Court”) with three counts alleging
crimes against humanity contrary to the Rome Statute of the ICC. It is alleged that these crimes
were committed in connection with the violence that occurred during the post-election period in
December 2007 and January 2008 in the Republic of Kenya (“Kenya”).
Ref: Terms of Reference (“TOR”) for Expert Report on the ODM Campaigns
: 2005-2008, p. 1, para 1; Expert Bundles of Documents, Vol. 1, Tab 1
b) On 23 January 2012, the Pre-Trial Chamber of the ICC confirmed three charges alleging
crimes against humanity against Mr. Ruto and Mr. Sang and committed the case for trial. Trial
commenced before the Trial Chamber V (A) of the Court on 10 September 2013.
Ref: TOR, p. 1, para 2; Expert Bundles of Documents, Vol. 1, Tab 1
PART II
2. ROLE AND DUTIES OF AN EXPERT WITNESS

a) I am aware of the following general duties of an expert witness:
i) an expert has an overriding duty to assist the Court on matters relevant to the expert’s
area of expertise;
ii) an expert witness is not an advocate for a party;
iii) an expert witness’s paramount duty is to the Court and not to the person
retaining the expert [emphasis in the original];
iv) an expert witness is required to prepare an Expert Report which may be placed before
the Trial Chamber if considered relevant and admissible to any issue arising in the
present case;
v) that because the ICC proceeds upon the principle of oral evidence, I may be required
to tender this Expert Report, which I have prepared, to the Court in person;
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vi) and that I may be required to physically attend ICC proceedings at The Hague, The
Netherlands, and testify before the Judges of the Trial Chamber V(A).
PART III
3. SCOPE OF THE EXPERT REPORT

a) This Expert Report on the formation and structure (formal and informal) of the Kenyan
political party known as the “Orange Democratic Movement” (“ODM”) in the period before,
during and immediately after the 2007 Kenyan General Elections has been prepared for the Court
upon request by the Defence Team of William Samoei Ruto.
b) The Report specifically covers the period between 2005 and 2008. It includes the respective
functions of the posts within ODM and the persons who held those posts; and the policies,
including the political manifesto, of the various ODM formations in the indicated period.
c) I have paid particular attention regarding leadership of the various ODM formations, including
the head of the ODM party, Mr. Raila Odinga, and all ODM Pentagon members, with particular
focus on the role, responsibilities, functions and conduct of Mr. William Ruto.
PART IV
4. QUALIFICATIONS AND BASIS OF EXPERTISE

The following outline summarizes my academic and professional qualifications as well as my
political exposure and experience:
a) Basic Background, Academic and Professional Qualifications
• I am a Kenyan-born citizen.
• I am an adult of sound mind.

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• I have no criminal record.
• I am not facing any criminal charges.
• I am not a member of any political party in Kenya, or anywhere else in the world.
• Attended Apondo Primary School (1971-1978), Onjiko Secondary School (Ordinary

Levels: 1979-1982) and Njiiri’s High School (Advanced Levels: 1983-1984).
• Between September 1986 and 13 November 1987, I studied Political Science,

Literature in English and Philosophy at the University of Nairobi before I was abducted
at gun-point, detained incommunicado and tortured before being released and summarily
expelled from the University with other student leaders for agitating for political
pluralism, democracy and academic freedom.
• In December 1987, I fled to Tanzania and sought political asylum. On 25 June 1988, the
United Nations Human Rights Commissioner for Refugees (“UNHCR”) resettled me in
Toronto, Canada, as a Canadian government-sponsored refugee.
• I attended the University of Toronto from September 1988 to June 1990, graduating with
a Bachelor of Arts Degree in Political Science and Philosophy in June 1990.
• Between June and September 1990, I worked as a researcher with a marketing and
public opinion firm and as a social worker with the City of Toronto.
• From September 1990 to June 1993, I studied law at the Osgoode Hall Law School of
York University, graduating with a Juris Doctor (JD/LLB) in June 1993.
• My one-year Articles of Clerkship was conducted at the law firm of Roach, Schwartz and
Associates (August 1993-August 1994).
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• Completed my Bar Admission Course and was admitted to the Ontario Bar on February
5, 1995. Thereafter, I practiced criminal law and civil litigation until my return to Kenya
in September 2007.
• In June 2001, I obtained a Master of Laws (LLM) degree from the Osgoode Hall Law
School of York University.
• On 3 April 2008, I was admitted to the Kenyan Bar.
• I am a member, in good standing, of both the Law Society of Upper Canada and the Law
Society of Kenya.
b) Relevant political background, experience and expertise
• Political Strategist and public policy researcher and analyst (1987 to Present).
• Author, Kidneys for the King: de-Forming the Status Quo in Kenya (Richmond Hill,
Ontario: Integrity Books, 2013). Although a sequel to my memoirs, Peeling Back the
Mask, this book analyses politics, government and history of Kenya in the twenty first
century (Published on February 11, 2013).
• Author, Peeling Back the Mask: A Quest for Justice in Kenya (London, UK: Gilgamesh
Africa, 2012). This is a 611-page memoir on my life, experiences, reflections and major
political developments in Kenya from 1987 to 2011 (Published on July 14, 2012).
• Senior Adviser to the Prime Minister of the Republic of Kenya, Raila Amolo
Odinga on Coalition Affairs: political strategy, parliamentary, constitutional
and legal affairs (Formal: March 6, 2009-August 4, 2011).
• Joint Secretary to the Permanent Committee on the Management of Grand Coalition

Affairs (Formal: March 6, 2009 to August 4, 2011). I represented both the Prime
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Minister and the ODM party at the joint coalition management secretariat (Formal:
March 6, 2009-August 4, 2011).
• Coordinator of the Prime Minister’s Strategic Teams (Informal: March 2009-2011).
• Member, ODM Strategic Team (Informal: April 2008-2011).
• Member, ODM Legal Team (Informal: April 2008-2011).
• Member, Strategic Team of the Raila Odinga for President Campaign Secretariat
(Informal: 2007).
• Coordinator, Rapid Response for ODM in North America (Informal: 2007).
• Life Member of the Orange Democratic Movement (“ODM”) in 2007 (Formal). I was
also an aspirant for the ODM Nyando Constituency Parliamentary seat in November
2007.
• Covenant/Life Member of the Orange Democratic Movement-Kenya (“ODM-K”) in

April 2006 (Formal). Between April 2006 and July 2007, Raila Amolo Odinga was
regarded as the de-facto leader of the ODM-K.
• Supported the “Orange NO Movement” during the 2005 constitutional referendum in

Kenya. I published numerous newspaper opinion articles in support of the Orange NO
Movement and the ODM and actively participated in debates on radio and in various
Internet-based blogs and discussion platforms.
• Life Member of the Liberal Democratic Party of Kenya (“LDP”) in April 2002 when
Raila Amolo Odinga was the de-facto leader of the LDP (Formal).
• Resigned from the ODM on 1 September 2012 (Formal).

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• Columnist for the Star national newspaper (Formal: 2009-2011). I published more than
500 articles on topical issues on governance, public policy, public ethics, constitutional
review process, legal interpretation, the fight against impunity, the ICC process, among
other issues, in less than three years.
• Regular contributor op-ed contributor on political, social, constitutional and legal

matters for The Standard and the Daily Nation national newspapers (2005-2011).
Published hundreds of articles on socio-political issues affecting Kenyans.
• Regular contributor to national (Kenyan) television, radio and electronic media. I have
participated in discussions, debates, meetings and seminars on national issues, including
the respective political parties’ campaign platforms from October 2006 to August 2011,
including representing Raila Odinga, ODM-K and ODM during these events.
• Regular contributor to The Kenya Times newspaper (published hundreds of op-ed

pieces from 2002-2006).
• Regular appearance on Kenyan political affairs in international media such as the BBC,
VOA and Al-Jazeera (2005-Present).
• Adviser to the Prime Minister of the Republic of Kenya, Raila Amolo Odinga
(Informal April 17, 2008 to March 6, 2009).
• Adviser to the ODM Party Leader/Captain and Presidential Candidate, Raila

Amolo Odinga (Informal: November 2007-March 2008).
• Member of the Pentagon Technical Team (Informal: December 2007 to March 2008).
This team was established immediately before the 2007 general elections. Its members
were mainly drawn from the Raila Odinga Presidential Campaign Strategic Team and a
few members from the Communications Team and the Coordination Team.
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• Head of Research and Policy of the Strategic Team for the Raila Odinga Presidential
Campaign Secretariat (Informal: September 2007 to December 2007).
• Adviser to the de-facto ODM-K Party Leader and Presidential Aspirant, Raila
Amolo Odinga (Informal: October 2006-August 2007). I researched, analysed and
drafted position papers and speeches for Mr. Odinga. I also organised speaking
engagements and fundraising events, and accompanied him to those events.
• Member of the ‘Raila Odinga for President Exploratory Strategy Team’ based at the
Raila Odinga Centre (“ROC”) from 2006 to 2007. This team included Dick Ogolla,
Caroli Omondi, Ceasar Asiyo, Tony Cege/Chege and Mike Njeru. Main functions were:
political strategy, policy research and analysis. I researched, analysed and prepared briefs
on many issues. Together with Caroli Omondi I prepared the blueprint on the
establishment of the “Raila Odinga for President Campaign Structure” (Informal).
• Coordinator for the Caribbean and Canada Working Committee of the 7th Pan African
Congress (Informal: 1994-1995).
• Coordinating Secretary of the Committee for Democracy in Kenya (Formal: 1988-

1993).
• Convener for the 1990 African Liberation Day in Toronto (Informal: 1990)
• Founding Member of the Pan African Law Society at Osgoode Hall Law School, York
University, Toronto, Ontario, Canada (Formal: 1991).
• Finance Secretary of the Students’ Organisation of Nairobi University (SONU) and an

Executive Member of the Students’ Representative Council (Formal: 1987).
• Managing Editor of the Campus Mirror, the University of Nairobi students’ newspaper
(Formal: 1987).
• Elected Representative of the Bachelor of Arts Faculty, University of Nairobi, Kenya

(Formal: 1987)
• Vice-Chair of the Kisumu District University Students’ Association (Formal: 1986-

1987).
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Ref: TOR; Expert Bundles of Documents, Vol. 1, Tab 1, , p. 1, para 5

Ref: Resume of Miguna, Expert Bundles of Documents, Vol. 1, Tab 3
PART V
5. THE CONTENT OF THE REPORT
a) Formation and Structure of the “Orange Democratic Movement”
i) Relevant historical background: The genesis of the Orange Democratic Movement
On December 27, 2002, Mwai Kibaki of the National Rainbow Coalition (“NARC”) was
elected president of Kenya with 62.2% of the votes cast, at 3,646,227, to Uhuru Kenyatta’s
1,835,890 (31.3%) and Simeon Nyachae’s 345,141 (5.9%).
Ref: Babafemi A. Badejo, Raila Odinga: An Enigma in Kenyan Politics (Nairobi,
Kenya: Yintab Books, 2006); Expert Bundles of Documents, Vol. 5, Tab 1, p. 236,
para 5
Ref: Raila Odinga, The Flame of Freedom (Nairobi: Mountain Top Publishers Ltd,
2013); Expert Bundles of Documents, Vol. 5, Tab 7, p. 687, para 3
The NARC victory was massive. The coalition dominated parliament by three quarters of
the parliamentary seats. While Branch claims that “NARC’s constituent parties took 132 of the
222 seats in parliament,” Raila Odinga’s figures (Raila Odinga, 2013, supra, p. 687) appear
more plausible to me. He writes: “Narc had 125 parliamentary seats in all – LDP had taken 59,
DP [Kibaki’s Democratic Party] 39, [Michael Kijana Wamalwa’s] Ford-Kenya 21 and [Ngilu’s]
National Party of Kenya six. [Uhuru Kenyatta’s] Kanu won 64 seats, [Simeon Nyachae’s] Ford-
People 15, Sisi Kwa Sisi, [Paul Muite’s] Safina and [Kenneth Matiba’s] Ford-Asili two each and
Shirikisho one.”
Ref: Daniel Branch, Kenya: Between Hope and Despair, 1963-2011 (New Haven and
London: Yale University Press, 2011); Expert Bundles of Documents, Vol. 5, Tab 3, ,
p. 250, para 2
My assumption is based on the fact that there were only 210 constituencies in Kenya in
2002. I assume Branch must have added nominated (not elected) members of parliament to
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NARC’s total tally. And even though Raila’s total number of 211 is one seat more than the 210
constituencies in Kenya then, I remember clearly the number of constituencies in Kenya in 2002.
Needless to say, Kibaki was sworn in as president on December 30, 2002.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 687, para 3
NARC was a coalition of the National Alliance Party of Kenya (“NAK”) and the Liberal
Democratic Party (“LDP”). NAK itself was a coalition between Kibaki’s Democratic Party of
Kenya (“DP”), Charity Ngilu’s National Party of Kenya (“NPK”) and Michael Kijana
Wamalwa’s Ford-Kenya.
Ref: Gabrielle Lynch, I Say To You: Ethnic Politics and the Kalenjin in Kenya
(Chicago and London: The University of Chicago Press 2011); Expert Bundles of
Documents, Vol. 5, Tab 4, , p. 154, para 1
The Memorandum of Understanding (“MoU”) signed between the LDP and NAK leaders
just weeks prior to the 2002 general elections “provided for equal power-sharing between the
two sides, and it was based on the draft Constitution prepared by the Constitution of Kenya
Review Commission [“CKRC”] headed by Yash Pal Ghai. Provision had been made for a
premiership, and it had been agreed that the president would come from NAK and the Prime
Minister from LDP. Our side had suggested that we needed six months to pass the new
Constitution but Kibaki’s side was very emphatic in saying three months […] The final
agreement envisaged 50-50 [power] sharing between LDP and NAK…”
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 688, paras
2, 3 & 4, p. 689, paras 2 & 3
The de facto leaders of the Liberal Democratic Party (“LDP”) were Raila Amolo Odinga
(a Luo from Nyanza Province but with a political base in the cosmopolitan Nairobi’s Lang’ata
Constituency), Stephen Kalonzo Musyoka (a Kamba from Eastern Province), George Saitoti (a
person who claimed to be of mixed Kikuyu and Maasai heritage from the Rift Valley), Moody
Awori (a Luhya from Western Province), Joab Omino (a Luo from Nyanza Province) and Joseph
J. Kamotho (a Kikuyu from Central Province). Others were Chirau Ali Makwere (a Mijikenda
from Coast Province), Franklin Bett (a Kalenjin from the Kipsigis of the Rift Valley Province)
and William Ole Ntimama (a cantankerous Maasai from the Rift Valley). However, given how
15
the party had been acquired and how it was being run, Raila essentially retained overall power
and influence over the party’s operations.
Ref: Joe Khamisi, The Politics of Betrayal: Diary of a Kenya Legislator (Nairobi,
Kenya: Trafford Publishing, 2011); Expert Bundles of Documents, Vol. 5, Tab 2, p.
127, para 1
Raila Odinga had earlier “purchased” the LDP from its original owner, Dennis Kodhe,
and had formally installed his close political allies Professor Larry Gumbe (a Luo academic from
Nyanza Province) as the new LDP chairman, and Ms. Mumbi Ngaru (a Kikuyu from Central
Province), as the party’s Secretary General. These two essentially headed and ran the party’s
secretariat for Raila Odinga.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 127
Formally, both Gumbe and Mumbi were “the legitimate and legal signatories of all party
transactions inter party agreements, and so on.” They were also in charge of recruitment and
therefore helped shore up Raila’s popularity with party members and functionaries.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, pp. 128 & 129
However, informally, Kalonzo’s fellow Kamba and close associate “David Musila (a
Kamba from Eastern Province) [soon] took over from [Raila’s ally Joab] Omino who had been
interim Chairman…” Nonetheless, many people still believed that then staunch Raila allies like
John Joseph Kamotho remained the party’s de facto secretary general, William Ole Ntimama the
de facto treasurer, Fred Gumo (a Luhya from Western Province but with a political base in
Nairobi) the organizing secretary, and Najib Balala (a Moslem from Arab extraction from the
Coast Province) the publicity secretary.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, pp. 129, para
3
Since Gumbe and Mumbi were “staunchly pro-Raila,” Khamisi argues that there was no
reasonable prospect of Kalonzo “upstaging or even undermining Raila” in LDP.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, pp. 128 & 129
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During this period, I have independent and distinct recollection of reading frequent print
and electronic media references to Raila as ‘the de facto LDP leader.’ I have also encountered
records confirming that “Kalonzo fulminated against the media over references of Raila as the de
facto LDP leader…[T]he reference had become common in the media coverage, but had gone
unchallenged until then” (Joe Khamisi, 2011, supra, pp. 128 & 129; 132). Significantly, even
Raila considered himself as the LDP leader.
Meanwhile, major differences within the NARC coalition (between Kibaki’s NAK
formation and the LDP leadership) erupted as soon as Kibaki had formed his new administration
(Raila Odinga, 2013, p. 689). In the midst of widespread discontent and mistrust within the
coalition, Kibaki maintained his silence (Raila Odinga, 2013, pp. 690-691). Barely three years
after NARC’s historic electoral victory in December 2002, these differences would lead to the
coalition’s total collapse.
Ref: Daniel Branch, 2011; Expert Bundles of Documents, Vol. 5, Tab 3, p. 260, para
2
In a nutshell, NARC collapsed due to three main reasons.
First, Kibaki’s refusal to honour the provisions of the MoU requiring him to share power
with the LDP on an equal basis precipitated discontent and anger from LDP leaders and set the
stage for deep searing mistrust and resentment within the coalition. His refusal to consult Raila
and other LDP leaders on important decisions affecting the country including appointments to
the cabinet made matters worse.
Ref: Babafemi A. Badejo, 2006; Expert Bundles of Documents, Vol. 5, Tab 1, p. 239,
para 3 & 4, p. 240, paras 1 & 2, p. 241, paras 1 & 4
1, lines 8-15, para 2
2 & 3, p. 689, paras 2 & 3, p. 691, para 4, p. 692, para 2, p. 694, para 3
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Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 103, para 3
In fact, Mr. Awori of the LDP had been chosen to chair the top decision-making organ of
the governing coalition called ‘The Summit’ whose members included Kibaki, Wamalwa, Raila,
Musyoka, Ngilu and Awori himself. However, as soon as Mr. Kibaki was sworn in as president,
he not only refused to attend meetings of the Summit, (I remember the media reporting during
this period that Kibaki’s advisers were arguing that as president, he could only attend meetings
he was chairing) he also did not consult The Summit or LDP members of The Summit on any
major decisions including cabinet appointments and appointments to key state and civil service
positions such as permanent secretary and state corporation chiefs. As well, corruption and
ethnic discrimination and marginalization, which many Kenyans had hoped would be addressed
during the NARC administration, continued to spiral out of control.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 99, paras 2,
3&4
Second, although the NARC leadership – and Kibaki in particular - had promised the
country and had undertaken, to swiftly facilitate the enactment of the ‘Bomas Draft’ constitution
that had been prepared by the Constitution of Kenya Review Commission (“CKRC”) under the
leadership of Prof. Yash Pal Ghai, Kibaki and members of his Kitchen Cabinet were widely
perceived to have started erecting roadblocks on the path towards a people-focused constitutional
dispensation now that he was in power.
2 & 3, p. 691, para 4, p. 692, para 2
1&2
Instead of facilitating the enactment of the Bomas Draft which had been prepared
following popular public demand and extensive public consultation and participation within 100
days, or three months, after taking power as he had undertaken during the campaigns for the
2002 general elections, Kibaki was now intent on consolidating and entrenching presidential
power for himself and his acolytes, and in order to acquire more wealth through shady financial
transactions.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 231; 234-
244
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Although the swift constitutional change that Kibaki had promised would have led to the
creation of the post of prime minister for Mr. Odinga, by June 2003, it was clear that the
constitutional review process was no closer to completion than it had been at the time of the
election in December 2002 (Daniel Branch, 2011, p. 258, paras 1 & 2). This development
caused intense disappointment and resentment from Mr. Odinga and his supporters, thereby
causing more turbulence in the coalition.
And third, on June 30, 2004, Kibaki made a cabinet reshuffle and announced the
formation of a ‘Government of National Unity,’ which saw some LDP cabinet ministers like
Kalonzo Musyoka (of LDP) demoted from foreign affairs to environment and Ochillo Ayacko (a
Luo from Nyanza Province and a member of the LDP) from energy to gender, sports and culture.
Meanwhile, Kibaki’s erstwhile political allies Simeon Nyachae (a Kisii from Nyanza Province
and Ford-People leader), Njenga Karume (a Kikuyu from Central Province of KANU) and Henry
Obwocha (a Kisii from Nyanza Province) were appointed to senior cabinet positions. This
further weakened LDP and strained the already frayed NARC coalition.
para 4, p. 252, paras 1 & 2
Soon, powerful forces at Kibaki’s State House engineered Mr. Odinga’s removal as the
chairman of the Parliamentary Select Committee on Constitutional Reform (“PSCCR”). He was
replaced by Paul Muite (a Kikuyu from Central Province). Inexplicably, Mr. Muite quickly
resigned from that position and was replaced by the Eldoret North Member of Parliament
William Ruto (a Kalenjin from the Rift Valley). Ruto was then the secretary general of KANU.
Under Mr. Ruto’s leadership, the Constitution of Kenya Review (Amendment) Bill 2004
was taken to parliament, passed and presented to Kibaki for signature on November 8, 2004. But
Mr. Kibaki refused to sign the Bill into law. Instead, he returned it to parliament with
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instructions that the 65 per cent majority requirement for any amendment to the Bomas Draft be
deleted.
By this time, Mr. Kibaki had managed to construct a loose, ad hoc, ‘government of
national unity’ with some small parties in parliament and had the Constitution of Kenya Review
(Amendment) Bill 2004 passed, with some minor amendments. Kibaki gave his assent to it in
January 2005. “But before that, in November 2004, the PSC under Ruto had met at Sopa Lodge,
Naivasha, and reached agreement on a number of controversial issues dogging the reform
process…Regarding the structure and powers of the executive, the committee agreed that:…‘the
executive authority of the Republic of Kenya will repose in the president, the prime minister and
the Cabinet…that the president shall appoint as prime minister the person who is the leader in
parliament of the party or coalition of parties with the majority support in parliament and shall
submit the name of the appointed prime minster to parliament for approval by at least 50 per cent
vote of all members of parliament.’”
Ref: Babafemi A. Badejo, 2006; Expert Bundles of Documents, Vol. 5, Tab 1, pp.
276-277
But Mr. Kibaki was not happy with those changes to the Bill. Soon Mr. Ruto was
replaced by then cabinet minister Simeon Nyachae. In addition, LDP members of the PSCCR
were eventually removed and their places taken up by Mr. Kibaki loyalists. Nyachae-led - and
Kibaki-controlled - PSCCR quickly retreated to an exclusive resort in Kilifi at the Coast. Within
no time, they emerged with a draft constitution.
2&3
Subsequently, Mr. Nyachae ‘worked’ on this draft with a few Kibaki loyalists at a Kilifi
resort and submitted it, together with both the [Ruto’s] Naivasha Draft and the Bomas Draft, to
parliament on July 19, 2005. This is what became known as the ‘Kilifi Draft.’ In short order,
Parliament adopted Nyachae’s Kilifi Draft.
paras 3 & 4, p. 278, paras 1 & 2
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It was Mr. Nyachae’s Kilifi Draft that the Attorney General Amos Wako later changed -
ensuring that he made it more difficult to impeach the president. In the end, Mr. Kibaki presented
the draft Wako had mangled to the national referendum on November 21, 2005. It is this draft
constitution that became known as the ‘Wako Draft,’ and which Mr. Odinga and his allies
campaigned against.
Subsequently, the LDP group, led by Raila Odinga, Kalonzo Musyoka, Najib Balala,
Musalia Mudavadi, William ole Ntimama, Peter Anyang’ Nyong’o (a Luo from Nyanza
Province) and others were joined by a section of KANU leadership led by Uhuru Kenyatta (then
Gatundu South Member of Parliament, KANU chairman and leader of the official opposition),
William Ruto (then KANU secretary general and Eldoret North Member of Parliament) and
sections of Ford-Kenya and Ford-People leaders in opposing the Wako Draft.
2 & 3, p. 715, paras 2 & 3
Other leaders such as former president Daniel arap Moi, former cabinet ministers Henry
Kosgey (a Kalenjin from the Rift Valley) and Jebii Kilimo (a Marakwet, a Kalenjin sub-group in
the Rift Valley) and the longstanding Moi and KANU lawyer, Mutula Kilonzo (a Kamba from
Eastern), also condemned the Wako Draft and resolved to oppose it during the constitutional
referendum.
However, my intricate knowledge of the political history of Kenya informs me that Moi
might have opposed the Wako draft for two reasons, chief among them was to use it as a test-run
for KANU and to assess if there was any reasonable potential of his protégé, Uhuru Kenyatta’s
second quest for the presidency in the forthcoming [2007] general elections, and secondly,
because Moi was still smarting from Kibaki’s humiliating defeat of Uhuru whom he [Moi]
desperately wanted to impose as president in 2002.
My opinion, based on my research, independent recollections and reflections is that Moi

joined what he saw as a popular national rebellion against Mr. Kibaki in order to score political
points. I am fortified in this opinion in view of the fact that almost immediately after the
referendum in November 2005, Moi, Uhuru and KANU pulled out of the ODM. My view is that
21
they didn’t want to do anything whose net effect – directly or indirectly – could have politically
benefitted the career of Mr. Odinga who was then widely viewed as the de facto leader, and
would actually emerge as the de jure leader, of ODM.
Kibaki’s first vice-president, Michael Kijana Wamalwa, had passed on in August 2003.
Charity Ngilu (a Kamba from Eastern Province), Awori and Saitoti remained firmly in cabinet,
and on Kibaki’s side, in the tittering NARC. Meanwhile, Kipkalya Kones (a Kalenjin from the
Kipsigis sub-group in the Rift Valley), who had earlier joined Raila’s LDP and was Simeon
Nyachae’s presidential running mate in Ford-People in the 2002 elections, joined the now full-
blown campaign against the Wako draft.
Other national leaders who also joined the Orange NO Campaign were Martin Shikuku (a
fiery nationalist from the Luhya of Western Province), former long-serving Attorney General
and minister for Justice and Constitutional Affairs, Charles Njonjo (a Kikuyu from Central
Province), and many others who trooped to the Orange NO Campaign.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, pp. 716-717,
Ref: Babafemi A. Badejo, 206; Expert Bundles of Documents, Vol. 5, Tab 1, pp. 236;
239-240; 241; 251-252; 276-278
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, pp. 88-91; 99-
103; 127-129; 132; 139-140; 149; 231; 234-244
Ref: Daniel Branch, 2011; Expert Bundles of Documents, Vol. 5, Tab 3, pp. 249-250;
252; 258; 259; 267
Ref: Gabrielle Lynch, 2011; Expert Bundles of Documents, Vol. 5, Tab 4, pp. 154;
178; 183; 250; 258
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab. 5, p. 155
22
ii) ECK Chairman Samuel Kivuitu’s Orange Gift to Kenya
The then Election Commission of Kenya (“ECK”) chairman, Samuel Kivuitu, assigned a
‘banana’ symbol to the Kibaki group that were in support of the draft constitution, or that were
saying ‘YES’ to the Wako Draft, and an ‘orange’ symbol to those that were opposed to the draft
constitution, or who were saying ‘NO’ to the Wako draft.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab. 7, p. 714, paras
2&3
And taking their cue from the symbols Kivuitu had assigned for the respective two teams
on the ballot paper for the November 2005 referendum – and an inspiration from the Orange
Movement in Ukraine – the opposition forged a new political coalition that became known as the
Orange Democratic Movement (“ODM”).
Ref: Daniel Branch, 2011; Expert Bundles of Documents, Vol. 5, Tab. 3, p. 259, para
2
I clearly remember that at this moment in time, the “ODM” was still more or less an
evolving idea, a concept, and an informal political grouping. My view is that initially, the leaders
of the Orange NO Campaign had no concrete idea to transform, or intention of transforming, the
popular support they were getting from Kenyans and channel it into one political formation
called the Orange Democratic Movement. That would come a bit later, at a joint KANU and
LDP Kisumu rally in September 2005 when, at the spar of the moment, Najib Balala, coined the
term “Orange Democratic Movement” (“ODM”) and asserted that they would match on to
victory in the next general elections. Moreover, at this time, the Orange NO Campaign leaders
hadn’t registered ODM as a legal entity.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab. 7, p. 714, paras
2&3
23
iii) The Orange NO Campaign assembles an impressive and diverse team
Based on the foregoing, I believe that by November 2005, the Orange NO Campaign had
assembled an impressive array of political (human) arsenals from all major ethnic groups and
regions in Kenya and set an exciting tone and tempo to the constitutional referendum campaign.
I am aware that Uhuru Kenyatta (then KANU chairman and leader of the official
opposition in parliament), Joseph Kamotho (who had been KANU secretary general and a senior
member of Moi’s cabinet for more than ten years), Charles Njonjo (who had been Kenya’s
attorney general for more than ten years and minister for justice and constitutional affairs under
Moi) and Mumbi Ngaru (who was the first female mayor of Thika town in Central Province)
were then fairly well-known politicians from the demographically dominant Kikuyu community
in Kenya while former cabinet minister and then Gachoka Member of Parliament Joseph
Nyagah, a Mbeere, represented lower Eastern Province.
Ref: Miguna Miguna, Articles, Expert Bundles of Documents, Vol. 4, Tabs 1-69
I also have independent knowledge that Raila Odinga, Peter Anyang’ Nyong’o, Joab
Omino, Ochillo Ayacko, Adhu Awiti, Peter Odoyo and Joshua Orwa Ojodeh who had either
been cabinet ministers or assistant ministers, respectively, in the initial NARC government,
represented the Luo community and Nyanza Province in ODM.
The vast Rift Valley was represented by many prominent political personalities like
Kipkalya Kones (Kipsigis/South Rift); Franklin Bett (Kipsigis/South Rift); Henry Kosgey
(Nandi/North Rift); William Ruto (Nandi/North Rift); Jebii Kilimo (Marakwet/North Rift);
William ole Ntimama (a Maasai, represented the pastoralist communities in the Rift Valley).
Musalia Mudavadi, Fred Gumo, Julia Ojiambo and Martin Shikuku were members of the
various Luhya speaking communities of Western Province.
During this period, Mr. Kones (a Kipsigis) and Mr. Kipruto Kirwa (a Nandi who was
then a minister in Kibaki’s government) were widely considered as the “most vociferous
24
defenders of Nandi and Kipsigis interests” (Gabrielle Lynch, 2011, p. 178, para 2). But while
Mr. Kones pitched camp in the Orange NO Campaign, Mr. Kirwa stood firm with the Kibaki
‘Banana YES Campaign.’
My recollection is that the Orange NO Campaign/ODM was led among the Kamba
community in upper Eastern Province by Kalonzo Musyoka, Mutula Kilonzo and David Musila.
Omingo Magara and Janet Ong’era, both members of the Gusii/Kisii community of Nyanza
Province, also played central roles, with Ong’era serving as the Director of the Orange NO
Campaign Secretariat, and later serving in a similar position at the ODM Party Secretariat. Joe
Khamisi and Chirau Ali Makwere were then leading national politicians from the Coast
Province. Together with Najib Balala, they represented the Coastal region.
My assessment, based on independent knowledge derived from decades of political

activism, research, analysis and writing, convinced me then and now to conclude that the Orange
NO Campaign had not just managed to gather an impressive array of leaders with diverse
backgrounds and orientations – in terms of ethnic composition, ideological beliefs and
commitments and regional representation - they had also, by their sheer diversity, inclusiveness
and representativeness, created unsurpassed political buzz, momentum and euphoria that would
prove impossible for Mr. Kibaki to defeat in the impending referendum.
I believe, based on independent knowledge, that most of the Orange NO Campaign team
leaders like Raila, Uhuru, Ruto, Ngilu, Balala, Shikuku, Makwere, Khamisi, Otieno Kajwang’ (a
Luo from Nyanza) were more charismatic, engaging and entertaining on the campaign trail than
the Banana YES Campaigners. They also had the structural, organisational and corporate support
of well-established parties such as KANU and the LDP, as well as from former President Moi
and former attorney general Charles Njonjo who brought with them three decades of political
experience, capacity to mobilise material and logistical support, as well as psychological
advantage over their opponents.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, pp. 139-140;
149
Ref: Daniel Branch, 2011; Expert Bundles of Documents, Vol. 5, Tab 3, p. 267
25
Ref: Gabrielle Lynch, 2011; Expert Bundles of Documents, Vol. 5, Tab 4, p. 178
iv) The crystallisation of the ODM Platform

To the LDP leadership, the Orange NO Campaign was initially a means of expressing their
feeling of betrayal, discontent and outrage at the manner in which Kibaki had trashed the MoU,
had refused to appoint Mr. Odinga prime minister, had side-lined them in the NARC
government, and had refused to support the enactment of the Bomas Draft constitution, which
had been prepared through popular public consultation and participation.
At the core of the Bomas Draft constitution was devolution of power and resources. The draft
had fundamentally restructured the architecture of the Kenyan polity by attempting to create a
parliamentary system and attempting to redress historical injustices pertaining to the land tenure
system, economic development and marginalization through a national land commission.
My view, based on my review of the Orange NO Campaign literature, and having actively
participated in that campaign in 2005, is that for the first time since independence, the ODM
leaders felt that they had seen a viable opportunity through a new constitutional order in which,
most, if not all, of their independence dreams such as the realization of equitable infrastructural
and economic development, and their hope that they would be able to attain basic needs for all,
regardless of whether they were from small or large ethnic groups, or whether or not their ethnic
group had produced a president, would be attained.
Ref: Orange NO Campaign document, “A Kenya for all of us: Towards an equitable
and just Kenya”; Expert Bundles of Documents, Vol. 1, Tab 11, p. 4, para 2
Therefore, when the Orange NO Campaign began – with an alliance or coalition which was
now larger, broader and more representative than the LDP or NAK political formations
combined – Kibaki’s attempt to impose the Wako Draft on Kenyans was quickly and widely
viewed as a refusal to address past and prevailing inequities, historical injustices and
mismanagement of public affairs such as grand corruption, tribalism, ethnic marginalisation,
absence of inclusiveness, and disparities in, and unequal economic development among, Kenya’s
ethnic communities and regions.
26
In other words, by October 2005, my view based on having watched the events unfold
through the media and my extensive research on this issue, is that Kibaki and his handlers had
made too many serious errors, angered too many people, broke too many promises, alienated
large sections of the Kenyan society and showed no signs of changing course. This trend
organically created an environment for smart, ambitious and wealthy politicians to popularize
themselves and plot for the democratic removal of the increasingly unpopular government. Raila
Odinga, Kalonzo Musyoka, Uhuru Kenyatta, William Ruto and Musalia Mudavadi each had a
burning ambition to become president of Kenya. Under the circumstances, they quickly took
leadership of this popular disenchantment with the Kibaki administration, used the constitutional
referendum as a platform to teach Mr. Kibaki a lesson and to prepare for the 2007 general
elections. However, the details of how they would each reach their political destinations hadn’t
been discussed or agreed on amongst themselves as would become apparent after they won on
November 21, 2005 and started, almost immediately, to disagree with each other. Uhuru, Moi
and KANU, for instance, left the ODM and eventually supported Kibaki’s 2007 re-election bid,
while the majority of the Orange NO Campaign backed Raila Odinga for the presidency under
the ODM.
In my assessment, I have found no evidence to support any allegation that there was ethnic
tone to the Orange NO Campaign. I have also found no evidence that the ODM, from its
inception, conceived, strategized and/or embarked on a systematic propaganda to cause chaos,
mayhem or violence against one or more ethnic groups in Kenya.
Specifically, I have not found any evidence from my research – nor have I been able to recall
– any incident confirming the allegation that William Samoei Ruto either individually, or
together with others, directly or indirectly, conceived, strategized or engaged in systematic
propaganda, scheme or activities that targeted one or more ethnic communities or individual
citizens of Kenya for murder, forced eviction of civilian populations or any other crimes against
humanity during or after the November 2005 referendum.
27
In my view, the target of the ODM campaign were members of a Kikuyu elite – together with
other Kenyan elites - who were legitimately perceived to have arrogated themselves powers and
privileges that hadn’t been vested on them by the constitution or the law. The ODM leaders
perceived – in my opinion quite legitimately - that this rapacious elite was insular, insensitive,
ethnocentric and corrupt.
It needs pointing out that despite these widely held legitimate perceptions and grievances
among members of many Kenyan communities about the Kikuyu elite to which Uhuru Kenyatta
belonged, Ruto still supported Uhuru’s presidential bid in 2002 and stayed in KANU under
Uhuru’s leadership until October 6, 2007. In fact, I remember that Ruto, a Kalenjin, had been
Uhuru’s chief campaigner in the same way that Raila, a Luo, had been Kibaki’s chief
campaigner in 2002. Ironically, both Kibaki and Uhuru are Kikuyu.
Quite clearly, Ruto’s decision to support Uhuru in 2002 wasn’t and couldn’t simply be
construed as having been done in deference to former resident Moi. My opinion is that Ruto’s
decision and action then was symptomatic of a nationalistic and patriotic citizen who might be
driven by factors other than those of primordial ethnic affiliations. My opinion on this issue is
fortified, in retrospect, when we recall that he also supported Raila, a Luo, for the presidency in
2007, and Uhuru – again – in 2013.
Further – and I consider this point very significant – I recall that in 2002, Uhuru got more
Kikuyu and Kalenjin votes than Mwai Kibaki. In other words, Uhuru and Ruto had more or less
united Kalenjins and Kikuyus even in 2002. In my opinion, this fact invalidates the argument I
have heard and read in the media – and which I also subscribed to for sometime – that Mr. Uhuru
Kenyatta and Mr. Ruto only united after the post-election violence, in order to confront the
charges against them at the ICC In any event, I recall that both individuals started collaborating
politically around 2009, well before they were named as suspects by the ICC prosecutor Luis
Moreno-Ocampo.
Moreover, I also recall that when the post-election violence erupted in 2007-2008, Mr.
Kenyatta and Mr. Ruto, though belonging to two separate political formations and supporting
28
two different individuals for president, were not themselves contestants for the presidency of the
Republic of Kenya. My recollection is that Mr. Kenyatta was a candidate for - and indeed
became - a Member of Parliament for Gatundu South constituency while Mr. Ruto was a
candidate and became the Member of Parliament for Eldoret North constituency. Nor were these
two individuals cabinet ministers during the 2007-2008 post-election violence period. I recall
that both were mere MPs.
Ref: List of ODM Parliamentary Candidates in 2007 General Elections; Expert
Bundles of Documents, Vol. 3, Tab 9, pp. 1-5
Ref: List of ODM’s elected MPs: 2008; Expert Bundles of Documents, Vol. 3, Tab
10, pp. 1-3
In addition, I believe that Kibaki and NARC won the 2002 general elections because he and
his team had managed (more or less) to unite almost all the other Kenyan communities –
especially in Nyanza, Western, Coast, and significant parts of Nairobi, Coast and North Eastern
provinces against what they perceived as Moi’s scheme to continue ruling Kenya through an
Uhuru Kenyatta proxy, after 24 long years of repressive rule. Yet despite - for lack of a better
expression - this ‘40 versus 2’ (that is forty Kenyan communities against the Kikuyu and the
Kalenjin in the 2002 general elections), there was no violence, chaos or ethnic pogroms in Kenya
after the 2002 election results were declared.
I recall that there had been violence, including those characterized then as ethnic cleansings,
in 1988, 1992 and 1997 elections, which were widely believed to have been conducted by the
Moi regime against communities like the Luo and the Kikuyu that were perceived to be opposed
to his iron-fisted rule. In other words, I hold the opinion that ethnic cleansings were used by Mr.
Moi and his regime - and possibly Kibaki’s government – to perpetuate themselves in power.
In my view, the nature, intensity and extent of the 1988, 1992 and 1997 ethnic clashes
portrayed elements of sophistication, organization and logistical synchronization that could only
be executed by the government. Moreover, in those instances, I remember reading media reports
of high ranking government officials including cabinet ministers who were either named by
parliamentary probes or who themselves implied their complicity like Ole Ntimama, but who
29
were never arrested, charged or prosecuted, because the government of the day were either
involved or implicitly supported the ethnic cleansings.
I do not believe that an opposition politician – no matter how powerful, influential or wealthy
– could manage to recruit, train, arm, deploy, offer intelligence and logistical cover and create a
supply chain to combatants and completely avoid and deflect detection and arrest by the
country’s security agencies. This point is made more significant when we recall that William
Ruto was not just an opposition politician, he was campaigning to democratically remove a
sitting president from power.
Ironically, I recall that independent, scientific international opinion polls that were conducted
in Kenya shortly after the 2002 elections had concluded that ‘Kenyans were the most optimistic
people in the world’ at that time. In fact, I also recall reading many newspaper reports, analyses
and opinions published in Kenya during this period that exuberantly proclaimed ‘the end of
tribalism or negative ethnic feuds in Kenya.’
My opinion is that both the optimisms and exuberance that Kenyans reportedly exuded or
demonstrated during and shortly following the announcement of the 2002 election results were
due to the perceived fair and democratic nature of those elections. My assessment based on
extensive reading and reflection on this issue suggests to me that there was no significant
violence during and after the 2002 elections because the overwhelming majority of the people
were convinced that the electoral process – from voter registration, campaigns, voting, counting,
tallying and the announcement of results – were fair, transparent and reflected the democratic
will of the Kenyan people.
I also believe that Uhuru Kenyatta’s swift concession after the Electoral Commission of
Kenya had announced the results and Moi’s readiness to hand over power to Kibaki without any
dithering, considerably diminished tensions in the country, and in my view, helped herald a
peaceful transfer of power and transition from one president (Moi) and political party (KANU) to
the other (Kibaki and NARC).
30
However, (I have provided further explanation below) the 2007 environment was
significantly different. Right from the outset, there were numerous complaints about orchestrated
schemes by Kibaki to rig the elections. I recall that Kibaki refused to consult the opposition
when appointing the ECK commissioners. Even the extension of tenure of the ECK chairman
came at the last minute, just weeks before elections. There were valid allegations that some of
the ECK commissioners were his cronies, like his former personal lawyer, Mr. Muturi Kigano,
and that many had been appointed in order to effect the rigging scheme. And in the days leading
up to December 27, 2007, there were numerous media reports of police and intelligence officers
who had been allegedly trained and posted to ODM strong zones as either ECK officials or PNU
agents. There were reports that there were secret plans to establish polling stations inside military
barracks without clear guidelines on how voting would be conducted in those barracks. There
were ugly incidents in parts of Nyanza and Rift Valley when members of the public pounced on
some of the alleged culprits and either beat them up or killed them. Coupled with the long delays
and irregular manner with which the ECK announced the presidential poll results, it was
conceivable that tensions would reach boiling point and that the public would reasonably
perceive the presidential elections to have been rigged, thereby precipitating sporadic and
spontaneous demonstrations, which eventually became violent as the security forces reacted with
brutal force.
Ref: ODM’s letter to the Commissioner of Police, Major-Gen. Hussein Ali dated 24th
December 2007; Expert Bundle of Documents, Vol. 2, Tab 29
Ref: Raila for President Secretariat’s letter to the Chair of the Electoral Commission of
Kenya dated 25th December 2007; Expert Bundle of Documents, Vol. 2, Tab 30
This was quite perplexing to me in view of the fact that my recollection established that just
five years earlier, during the 2002 general elections, Kenya had experienced unprecedented
peace during elections. In addition, the November 2005 referendum had also been peaceful.
During voter registration, on voting and counting periods (2002 and 2005), I did not read any
media reports of poll-related violence.
Moreover, it was evident to me that since Uhuru Kenyatta, Charles Njonjo, Joseph Kamotho
and Mumbi Ngaru – four leading and voluble ethnic Kikuyu politicians - were some of the key
leaders of the Orange NO Campaign in 2005, it could not have been possible or conceivable for
31
the same Orange NO Campaign/ODM to have had any tinge of anti-Kikuyu rhetoric in its
strategies, tactics, platforms, campaigns and/or propaganda, and for these prominent Kikuyus to
have continued to support an anti-Kikuyu organ up to, and even after, the referendum. In view of
the foregoing, I hold the view that the 2005 referendum campaign by ODM could not have been
the foundation for, or one of the primary root causes of, the 2007-2008 post-election violence.
Ref: Raila Odinga, 2013, supra; Expert Bundles of Documents, Vol. 5, Tab 7, pp.
714 & 716, para 1
Joe Khamisi, 2011, supra; Expert Bundles of Documents, Vol. 5, Tab 2, p. 129, para
1
v) The main reasons why the Orange NO Campaign/ODM opposed the Wako
Draft in 2005 and what they said they meant with ‘Devolution or Majimbo’
Wako draft prepared unprocedurally without public participation

In its campaign literature, the Orange NO Campaign appealed to Kenyans “to reject the
proposed constitution.” They argued that the Wako Draft was/had been:
• illegitimately prepared by virtue of the drafting process not having been open to
public participation; and that it had been crafted by a few Parliamentarians and a
handful of public servants;
• illegal because it has been hurriedly passed through Parliament without amending
section 47 of the then Constitution;
• greatly increased presidential powers…because he [Kibaki] would have powers to

establish and abolish any institution (Article 144(10). He would have powers to
appoint and dismiss any public servant (Article 144(11)[…];
• enabled the President to appoint and dismiss public servants, commissioners and
judicial staff, hence it would eliminate the cardinal [democratic] principle of
checks and balances (Article 144);
32
• gave the President unlimited powers to appoint the cabinet and therefore “will not
only weaken parliament but [it will also] reestablish a one party state and entrench
the rule by an unrepresentative clique (Article 144)[...];” and
• reduced devolution (of power and resources) to delegation[…]
They concluded by underlining that, “The future of this country is too important to be
entrusted to the would be dictators [sic]…”
Ref: Orange NO Campaign document titled, “To Whom It May Concern;” Expert
Bundles of Documents, Vol. 1, Tab 5
Ref: Raila Odinga, 2013, supra; Expert Bundles of Documents, Vol. 5, Tab 7, pp.
714, para 2
Seeking real change through a new people-focused constitutional order

In an undated two-page Orange NO Campaign document titled “Real Change Through a new
constitutional order,” the ODM team explained the basis of their opposition to the Wako Draft:
A constitution is more than a description of the structure of power in society; it is a
covenant which reflects the collective expectations and aspirations of how specific political
communities regarding its identity, security, its history and destiny, the way it wishes to
govern its affairs, the manner in which its national resources should be managed, distributed
and utilized, how the basic rights and freedoms of individuals and communities should be
protected and promoted and the manner in which internal and external conflicts are to be
resolved...
The current Kenya constitution is not such a covenant; indeed over the last 45 years it has
been used essentially as an instrument of: Authoritarianism; Elite appropriation and
accumulation of resources; Suppression of the popular aspirations; Mismanagement of public
affairs; and Marginalization of many social groups
Everyone agrees that such a constitution is unacceptable. The real challenge facing the
reformists is to ensure that Kenya gets a new constitution that would empower the people to
govern their affairs in a participatory and informed manner. A new covenant that answers to
that call must reconstitute the state and governance institutions by ensuring that the
constituent power of the people is executed directly by them; by entrenching an effective and
justiciable Bill of rights; by decongesting executive/ administrative authority at all levels of
33
governance through effective devolution, clear separation of powers, systematic checks and
balances among various organs of government, clear establishment of ethical principles of
public conduct to be administered by independent constitutional organs, regulating the
manner in which national resources may be utilized (i.e. land, forests, water, minerals,
revenue, etc.)
The BOMAS DRAFT suitably revised is the basis of such a new covenant.
Ref: Orange NO Campaign document titled, “Real Change;” Expert Bundles of
Documents, Volume 1, Tab. 7
Devolution/Majimbo was never about ethnicity or ethnocentricity

The primary focus of the Orange NO Campaign/ ODM campaign was to indict past
centralized and exclusivist (including the Kibaki) administrations or governments and the elites
responsible for propping up those governments. The campaign was explicitly framed as a means
for the fundamental restructuring of the governance system and the reordering of society in
general in order to bring about equity and equality not just of and between individuals within the
state, but also among and between the different and diverse ethnic communities.
Ref: Orange NO Campaign document titled, “Devolution,” and “Chapter Seven: Land
and Property: How does it affect Kenyans?” Expert Bundles of Documents, Volume 1,
Tabs 7 and 12
The Orange NO Campaign directly attacked centralization of power in Nairobi under an

unaccountable ethnocentric elite, authoritarianism, and misappropriation of public resources by
this elite, and that elite’s marginalization and suppression of popular aspirations of the majority
of the people of Kenya. The ODM team argued that these changes could only be brought about
by the enactment of a “revised Bomas Draft;” but not the Wako Draft.
Ref: Orange NO Campaign/ODM documents; Expert Bundles of Documents, Volume 1,
Tabs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13
During the 2005 constitutional referendum, the Orange NO Campaign /ODM explained
what they meant by devolution or majimbo as follows:
[…] In 1963 Majimbo law was aimed at decentralizing the colonial system and bringing
some social justice and fairness in national governance. However, the independence
government never attempted to implement it but instead elected to go back to the centralized
34
system which facilitated their taking over the wealth of the white colonialists for personal
gain and at the expense of the other Kenyans.
Kenya is currently divided in two groups of those that want change, who are the majority
and those that do not want change. The key characteristics of these two groups are as
follows:
Those who do not want change are mostly rich; privileged; secure, protected by
bodyguards, high walls, and electric fences; their children go to private highly resourced
schools; have benefited and survived from partisan, discriminatory and entrenchment of
ethnic hegemony. They are the few beneficiaries of the centralized system of governance,
they are in government and also trade with government. They arbitrarily determine who will
benefit from the Kenyan resources and revenues and focus this on very few. They are highly
driven by negative ethnic bias.
Those who want change are poor; oppressed; victims of crime; without means to seek
justice; discriminated; no physical space to live in; jobless and without prospects of ever
being employed; they are objects of violence including denial of basic services that would
enable them to have basic dignity like water and energy. They die from lack of food and lose
their children to simple preventable and curable diseases. Violence against women and
children in this group goes on unabated. They even lack the capacity to access the so called
“free education”. Others live in regions that have never received development attention since
independence. They don’t consider themselves to be Kenyan […]
Ref: ODM document titled, “Devolution; Expert Bundles of Documents, Vol. 1, Tab.
8, pp. 1, para 2-4; p. 2, para 1
Also addressed were perceived “falsehoods on devolution/majimbo” debate that ODM

stated were being used by those who had “benefited most from central governance system.”
Ref: ODM document titled, “Devolution;” Expert Bundles of Documents, Vol. 1,
Tab. 8, p. 2, para 1-2; p. 3, para 3-5
First, ODM refuted the claim that “majimbo will entrench tribalism and will result in
non-indigenous residents in the different regions being sent away from the regions.” They
strongly argued that, “The Devolution/Majimbo that the ODM would like to sell to Kenyans is
about equitable distribution of resources by region – NOT BY TRIBE. The ODM government will
also be entrenching a strong human rights culture that will not tolerate any form of
discrimination including on the basis of ethnic origin […]” [Emphasis in the original].
35

Tab 8, p. 2, para 1
Second, ODM refuted the allegation that “Majimbo will trigger ethnic clashes and plunge
Kenya into a similar situation as the Rwanda genocide between the Hutus and Tutsis: The ODM
would like to reiterate number 1 above and state that Rwanda is and was under a central
governance system at the time of the genocide. It WAS NOT under a devolved system of
governance” [Emphasis in the original].
Tab 8, p. 2, para 2
And thirdly, ODM concluded by listing thirteen key benefits of devolution/ majimbo,
which included, but were not limited to, the concept of “shared governance as opposed to a
unilateral and discretionary system of government; …unity in diversity; protection of minority
rights; equitable development of all regions; increased participation of the people in decision-
making; creation of strong regional governments; the entrenchment of the principle of
subsidiarity; allocation of funds on the principle that ‘funds must follow functions and
responsibilities with emphasis on financial equalization;’ and that the “design of the Bomas Draft
has taken into account all these general principles.”
Ref: ODM document titled “Devolution;” Expert Bundles of Documents, Vol. 1, Tab
8, p. 4, para 1-10, p. 5, para 11-13
The ODM approach to devolution/majimbo (in both the 2005 constitutional referendum
and during the 2007 elections) has recently been validated by two leading scholars on Kenya’s
history and politics, viz:
[…]The debate about majimboism was not just about ethnicity but also a
manifestation of the tremendous space that temporarily opened up for democracy with the
achievement of independence. But it was, furthermore, about development. If one thing
united Kenyans at independence it was the demand for development. Tom Mboya never
tired of reminding his audiences that the challenge of nationhood was the challenge of
development. How to deliver better education, improved healthcare and more and better-
paid jobs dominated the discussions of politicians across the country […]
Attitudes towards devolution have clearly changed over the course of the past
two decades. The failure of the state to deliver economic growth or security in the 1980s
36
undermined the popular support for centralization. At the same time, the reintroduction of
multi-party elections in the early 1990s exacerbated inter-communal tensions, which
encouraged a range of different communities to demand self-government. As Kenyans
clamoured to escape the control of a violent and arbitrary state, the lure of devolution
became increasingly appealing.
It was, therefore, no surprise that the Orange Democratic Movement (ODM)
based its election campaign in 2007 around the promise to introduce a system of
devolved government. This message proved to be particularly effective among
communities that felt historically marginalized. But the incorporation of devolution in the
2010 Constitution was not simply a victory of the old Kadu [Kenya African Democratic
Union] alliance. Devolution drew support across the board. Central and Nyanza
provinces voted in favour of the new Constitution at higher levels than Rift Valley and
the Coast […]
In other words, devolution is another, more subtle, form of power sharing. This is
why it offers a real opportunity to manage the tensions that have marked Kenyan politics
since independence. It would be dangerous to undermine this arrangement, especially in
the wake of two highly controversial elections […]
Ref: Prof. Daniel Branch & Dr. Nic Cheeseman, “Uhuru Confronts devolution a
century after his father,” Sunday Nation, October 20, 2013, pp. 17 & 18; Expert
In my view, the attempt to demonise, stigmatise and criminalise devolution/majimbo

and/or those championing for devolution/ majimbo, and to mischaracterise the ODM campaign
that called for its entrenchment in the Constitution during the 2005 referendum, is intellectually
dishonest. It is imperative to underscore the fact that devolution/majimbo system of government
is actually a significantly watered down parliamentary system. It is, indeed, merely a
decentralized system of government.
In other words, the majimbo system that some critics in Kenya have attempted to stigmatise
is a much more diluted system, architecturally, than the parliamentary systems that undergird
modern, thriving democracies in Canada, the United States of America, Switzerland, Germany
and other modern democratic systems of governance. When I studied the ‘politics of
multicultural societies’ for my undergraduate degree at the University of Toronto, I learned that
parliamentary systems are more effective in addressing, dealing with, and delicately balancing
37
the interests of many racial, ethnic and cultural groups within one nation-state. Consequently, I
have always held the view that a parliamentary system of government – even more than a
devolutionary/majimbo one – is more suited and suitable for Kenya.
Issue of corruption
In a 4-page document titled, “Corruption,” the Orange NO Campaign/ODM team stated that
corruption is what had created “the high rate of poverty and the inhuman livelihoods for many
Kenyans” since independence in 1963. They accused Kibaki and his predecessors – and I believe
quite fairly and appropriately - of abetting corruption that had resulted in “huge economic
disparities among the ‘haves’ and ‘have nots’ in Kenya and ‘robbed many Kenyans of their right
to basic social provisions.” I concur with this assessment because I have knowledge of the
‘ethnicisation’ of the Kenyan government and state institutions under the Jomo Kenyatta, Daniel
arap Moi and Mwai Kibaki administrations.
The Orange NO Campaign/ODM made the following undertakings, before listing major
corruption cases that remained unresolved in Kenya:
We intend to reinstate respect for the rule of law and will therefore operate within the
rules and regulations of this nation; not by the whims of individual or personal instinct as
has been the case with previous regimes.
We shall put in place a legal framework that will seal the existing legal gaps that
have facilitated corruption and protected the corrupt.
We will enact a clear law on the use of public resources.
We will establish the office of the ombudsman through a proper legal framework and
entrench it in the constitution. The law shall protect the independence of this office and
ensure it is well resourced to effectively undertake its mandate to ensure full
accountability by public servants.
We will also review the laws on addressing economic crimes to ensure that they are
clear, with the precision that will not leave loopholes for escape for the guilty.
These laws shall be equally applied to all without fear or favour.
The laws shall be applied by the appropriate arm of government- the judiciary; NOT
the executive or the president.
We shall demand expedition of all cases on corruption by the judiciary and shall not
interfere in any case [...]
38
Ref: ODM document titled, “Corruption;” Expert Bundles of Documents, Vol. 1,

Tab 9, p. 1, para 1-2, p. 2, para 1, p. 3
Issues of equality regarding persons with disability

In addition, ODM made a strong case for:
• a constitutional prohibition on discrimination based on physical disability;
• creating enforcement mechanisms for the Persons with Disabilities Act, 2003;
• building a national machinery for ensuring the rights of persons with disabilities;
• entrenching the rights of children with disabilities to free education; and
• exempting persons with disabilities from taxation.
Ref: ODM document titled, “Reflections on equality concerns of persons with
disabilities;” Expert Bundles of Documents, Vol. 1, Tab 10, pp. 1-2
Towards an equitable and just Kenya

Finally, the Orange NO Campaign /ODM argued for the creation of an equal and equitable
Kenya through a new constitution, a proposition which they argued was not possible under the
Wako Draft. They gave examples of the plight of women, girls, the minority and marginalized
communities in Kenya who have historically been subjected to horrendous discrimination,
inequality, lack of access to productive resources and social services. Ultimately, they indicated
that ODM would address and redress these social ills by enacting the Bomas Draft Constitution
which they stated prohibited discrimination; through enacting quality legislation; and by
instituting affirmative action measures.
Ref: ODM document titled, “A Kenya for all of us: Towards an equitable and just
Kenya;” Expert Bundles of Documents, Vol. 1, Tab 11. pp. 1-4
My opinion, therefore, based on careful and objective reading of the foregoing documents,
and my recollection of the debates and media reports during this period – including my own
writing, which constitutes Volume Four of the Expert Bundles of Documents - is that the Orange
NO Campaign/ODM platform during the 2005 constitutional referendum was basically that the
Wako Draft Constitution should be rejected because it was a product of an illegitimate, elitist and
flawed process; that it had been written by a few selfish parliamentarians and bureaucrats who
had not consulted the people of Kenya; and that it was a cynical ploy to remove democratic
checks and balances and to consolidate ill-gotten powers and privileges that were being enjoyed
39
by a few elites; to re-introduce repressive rule; and to perpetuate inequities and historical
injustices, which ODM undertook to redress through the enactment of the Bomas Draft. The
Orange NO Campaign/ODM promised Kenyans that upon their rejection of the Wako Draft, they
would quickly set the process that would result in the enactment of the Bomas Draft, which
provided for devolution of power and resources, equity, equality and the rule of law.
In other words, the Orange NO Campaign/ODM stand on the Wako Draft, and their
campaign platform during the entire constitutional referendum, and after, cannot and should not
be reduced to a debate about majimbo and the misperceived and misconstrued ills that its critics
have unfairly arrogated to it.
vi) Najib Balala coined the phrase “Orange Democratic Movement”
Najib Balala, then publicity secretary for the LDP, declared, in a surprise move, at a
joint LDP and KANU rally in Kisumu in September 2005 that the Orange NO Campaign would
transform itself into a political movement to be known as the “Orange Democratic Movement”
(“ODM”) and would subsequently match on to State House and capture power in the 2007
general elections.
Ref: Joe Khamisi, The Politics of Betrayal: Diary of a Kenya Legislator (Nairobi,
Kenya: Trafford Publishing, 2011); Expert Bundles of Documents, Vol. 5, Tab 2, p.
140, para 1
Ref: Raila Odinga, The Flame of Freedom (Nairobi: Mountain Top Publishers Ltd,
2013); Expert Bundles of Documents, Vol. 5, Tab 7, p. 682, para 1
Balala had declared that, “We are today transforming the Orange Movement into a
full-fledged political party to fight Kibaki…From here, we’ll traverse the country to convince
Kenyans not only to reject the Government-imposed Constitution Draft, but to vote out Kibaki in
the next General Elections [sic].”
40
vii) The Orange NO Campaign/ODM Strategy in 2005

The Orange NO Campaign “Strategic Plan” details how the team held meetings, analysed
and used information, data, statistics, intelligence, counter intelligence, rapid response and the
media in order to win over Kenyans for the sole purpose of defeating the Wako Draft. The
Strategic Plan outlines a campaign consisting of research, public policy development and
analysis, recruitment, mobilization, think pieces, write-ups, media appearances, anti-rigging
strategies, targeted opinion polls and political rallies. There were no subversive hate-filled
propaganda literature.
In the end, the Orange NO Campaign/ODM offered itself as an alternative leadership to a

government it characterised as out of touch, aloof, elitist, corrupt, exploitative, isolationist,
dictatorial, sexist, discriminative, and that was intent on illegitimately entrenching itself in power
so as to perpetuate these ills.
From my extensive review of both primary and secondary sources, I have seen no evidence
of any strategy targeting a particular ethnic group or community, nor have I encountered any
evidence of a call for chaos, violence or forceful evictions.
There is also no evidence from the literature I have reviewed that William Ruto played a
singular, central - or even a peripheral - role, in the crafting and/or the execution of the Orange
NO Campaign strategy. My view is that the role he played is not apparent from the literature.
Hence, unless one attended the planning sessions where he might have made his contributions,
any allegation against him merely on account that he campaigned against the Wako Draft in
2005 would be unfair and unjust, as it would have absolutely no basis on fact.
I find it significant that during the entire constitutional referendum campaign of 2005,
William Ruto was the KANU secretary general and Uhuru Kenyatta’s staunch supporter. He had
also supported Uhuru Kenyatta, a Kikuyu, during the 2002 presidential elections. For such a
person to suddenly be accused of crimes against humanity against the Kikuyu is, to put it
modestly, unbelievable.
41
viii) How the issue of land and property was tackled

The Orange NO Campaign opposed provisions of Section 288 in the Wako Draft which it
believed were intended to further economically disenfranchise minority and marginalized
communities such as the Maasai, Pokot and the people of North Eastern, Eastern and Coast
Provinces by repossessing “land currently held by different communal trust agencies such as
local authorities” and “reverting” such land to “state control under the proposed National Land
Commission.”
They stated that, “The ORANGE - NO Campaign believes that any attempt to interfere with
either local or foreign investors interest and right in land is bound to spell doom for the Kenyan
economy and may hammer an economic death nail on the international confidence on our
economy” [emphasis in the original].
They gave the Zimbabwean example where government policies and actions on land have
resulted in tragic economic consequences to that country.
My recollection, research and review of relevant literature do not reveal any threats,
harassments, evictions, dislocations or warnings by the Orange NO Campaign against any
civilian population, ethnic group or groups.
I also do not recall, nor have I encountered in my research and review of relevant literature,
any utterances and/or threats by, or statements attributed to, William Samoei Ruto during this
entire period against any ethnic community, including the Kikuyu.
My considered opinion, therefore, is that it wouldn’t just have been politically reckless for
Ruto, or any other Orange NO Campaign leaders, to issue threats against the Kikuyu, which was
the single largest ethnic community in Kenya (comprising about 22 per cent of the total Kenyan
population), in view of the fact that as an astute politician, Mr. Ruto and his fellow leaders in the
Orange NO Campaign/ODM were aware of the risks they would face if they alienated such a
huge vote-bloc; it would also have exposed Ruto or any other opposition leader, to criminal
prosecution by the Kibaki administration.
42
My opinion is that had Mr. Ruto and others given Kibaki that opportunity, he [Kibaki] would
have happily used it to dismantle the now emboldened ODM leadership. As a member of the
Kikuyu elite, which felt threatened by the Orange NO Campaign, I believe that Kibaki would
have wasted no time in punishing the transgressions of his political opponents.
To the best of my knowledge, Ruto and other ODM leaders were never accused, arrested,
charged or prosecuted with criminal incitement, threats or any other related offences. Because of
this undeniable fact, it is safe and reasonable to conclude that Mr. Ruto and other Orange NO
Campaigners had not committed any crimes during the 2005 referendum.
Ref: Orange NO Campaign document: “Chapter Seven, Land and Property: How
does it affect Kenyans?” Expert Bundles of Documents, Vol. 1, Tab 12
Ref: Orange NO Campaign document: “Chapter Seven, Land and Property:

Analysis of Section 83 on Land holding by non-citizens;” Expert Bundles of
Documents, Vol. 1, Tab 13
ix) Raila Odinga approached William Ruto to join the ODM
According to Mr. Odinga’s account, he [Raila] is the one who had approached Mr.
Ruto, who was then KANU secretary general, to join the LDP group in rejecting the attempt to
impose the Wako Draft on the people of Kenya. If this claim is true (and I have no reason to
believe that it is not in this instance), then it fundamentally undermines any proposition that
William Ruto could have conceived of and participated in the 2005 constitutional referendum as
part of some grand and clandestine scheme or conspiracy to plot against Kikuyu and their land in
the Rift Valley.
Mr. Odinga states that Ruto “[…] was initially fearful and reluctant, and doubtful
that we could succeed against the government, but I managed to convince him. LDP was the
major partner in the Narc coalition. Combined with Kanu, we would constitute a formidable
force. Ruto eventually agreed, and then brought in his colleagues, including Kanu chairman
Uhuru. We pledged to work together.”
43
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7 p. 714, para 3
x) The Orange NO Campaign/ODM was issue-and-fact-based
My recollection, research and review of relevant literature of the Orange NO

Campaign/ODM of 2005 indicate that the campaign was grounded on historical and (then)
existing facts and circumstances. All the available records do not suggest or show any strategy,
tactic or message that might have been either directly or indirectly intended to cause ethnic
animosity, conflict, aggression or inter-communal violence, or could have resulted in the
planning or execution of crimes against humanity against one or more persons or groups of
persons or against one or more ethnic communities in Kenya between 2005 and 2008. On the
contrary, I believe that the Orange NO Campaign/ODM in 2005 – and after –was based on
accurate historical and existing facts.
Similarly, I have not seen any credible reports or evidence alleging that Mr. Ruto said or did
anything before, during or immediately after that period that would constitute a crime under both
the Kenyan law and/or under the Rome/ICC Statute.
Ref: Orange NO Campaign document, “Strategic Plan;” Expert Bundles of Documents,
Vol. 1, Tab 4
xi) The Orange NO Campaign/ODM Secretariat’s physical address and

organizational structure
The address of the Orange NO Campaign/ODM secretariat was located on Kenya Road, in
the Upper Hill area of Nairobi. Its mailing address was: P.O. Box 20918-00202, Nairobi. The
building was near the Nairobi Club. I understand from previous conversations with Professor
Larry Gumbe that the building belonged to Gideon Moi, and that the Orange NO Campaign
leaders agreed to have the headquarters of the campaign located there because KANU leaders, in
particular, did not want the campaign to be conducted from LDP’s offices at Rainbow House in
Lavington lest people mistook them to have defected to the LDP.
Ref: Discussions with Professor Larry Gumbe in December 2007
44
I am aware that in Kenya, business and residential addresses rarely have posted street
numbers on or beside them, and even where they exist, most Kenyans don’t use them. Building
names, street names and street junctions are used but rarely are street numbers used.
I am not aware of any leadership structure or hierarchy of the Orange NO Campaign/ODM.

To the best of my knowledge, the group never released an organogram of its leadership structure,
perhaps because it was a loose coalition of diverse individuals, groups, political parties, political
activists and the civil society. However, my recollection is that the Kenyan media - and most
Kenyans - considered Raila Odinga as the de-facto head of the Orange NO Campaign/ODM
team. I clearly recall media news reports, op-ed and analysis pieces consistently referring to
Raila as “the de facto leader of the Orange Movement.”
However, the Orange NO Campaign/ODM had many political heavyweights and potential
presidential candidates, including Uhuru Kenyatta, Kalonzo Musyoka, Musalia Mudavadi,
William Ruto, Omingo Magara, Najib Balala, Joseph Kamotho, Henry Kosgey, Kipkalya Kones,
Franklin Bett, Otieno Kajwang’, Jebii Kilimo, Martin Shikuku, Charles Njonjo, Peter Anyang’
Nyong’o, Ochillo Ayacko, Joseph Nyagah, David Musila, Mutula Kilonzo and many others.
Even former president Daniel arap Moi opposed the Wako Draft and was affiliated to the Orange
NO Campaign/ODM during the referendum. In other words, the Orange NO Campaign was the
face of Kenya. It was more accurately, a ‘rainbow coalition’ in ideology, backgrounds, religion
and ethnic origins of its de facto leaders.
Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 715, para 2, p. 716,
para 1
I believe that in order to avoid the inevitable risk of these national politicians jostling for
power, the Orange NO Campaign/ODM group appointed Mr. Kilonzo their “National Team
Leader.” Theoretically, his role was to coordinate the team’s activities. He was also the
spokesperson for the group. However, practically, I believe that he was just given that
designation for political expediency. Based on extensive literature review, Mr. Odinga was the
fulcrum around which the Orange NO Campaign revolved.
45
Ref: Orange NO Campaign document, “Statement by Orange Democratic Movement;”

Expert Bundles of Documents, Vol. 1, Tab 15, p. 1, para 5, last line
At the secretariat level, Ms. Janet Ong’era was the director. Consequently, she was the one
who was in charge of the day-to-day operations of the secretariat and therefore the activities of
the team. I am also aware that Sylvester Kasuku was a member of the Research and Policy team
at the Orange NO Campaign/ODM. Nereah Musita worked in the logistics unit.
Ref: Orange NO Campaign document, “To Whom It May Concern;” Expert Bundles of
Documents, Vol. 1, Tab 5, p. 2, para 10
But even after Balala had given it the moniker, “The Orange Democratic Movement,” it
remained unregistered. Throughout the referendum period, the Orange NO Campaign team
continued to operate as an amorphous, informal, ad-hoc group.
For the most part during this period, I was based in Toronto, Canada, and was therefore not
physically present in Nairobi. Consequently, I have no extensive knowledge of the secretarial
staff or other details pertaining to the physical location of the secretariat.
b) The final break-up and collapse of the NARC

Although President Kibaki quickly conceded defeat when the national referendum results
were announced on or about November 22, 2005, he refused to patch up things with the now
emboldened LDP leadership, who had by then embraced and fully identified with the Orange
Democratic Movement (“ODM”) as their new political vehicle for their quest for power. Barely
two days after the referendum results were announced, Kibaki suddenly dissolved his cabinet,
and effectively fired all members of the LDP leadership like Raila Odinga, Kalonzo Musyoka,
Ochillo Ayacko, Peter Anyang’ Nyong’o, Adhu Awiti, Peter Odoyo and Orwa Ojodeh.
Ref: Miguna Miguna, “President Kibaki’s firing of cabinet is irregular and
unlawful,” 24 November 2005; Expert Bundles of Documents, Vol. 4, Tab 11
On 24 November 2005, following Kibaki’s dissolution of the NARC cabinet, the ODM
political leadership issued a stern press statement demanding that President Kibaki should
46
dissolve his cabinet so that the people of Kenya could “establish a government with legitimacy to
govern.” They announced that they would be holding national public rallies to force the
government to call snap elections.
Ref: Statement by the Orange Democratic Movement dated 24 November 2005;
Expert Bundles of Documents, Vol. 1, Tab 14, para 1
Instead, the government, through the Vice-President, Moody Awori (he had been
appointed when Michael Kijana Wamalwa died in 2003) reacted angrily to the ODM threat and
declared all political rallies (that ODM had stated they would hold) proscribed. This elicited
another public rebuke from the ODM, which issued a press statement on 28 November 2005,
castigating the government’s action as “unconstitutional, illegal and highly provocative.”
Ref: First Statement by the Orange Democratic Movement dated 28 November
2005; Expert Bundles of Documents, Vol. 1, Tab 15
On the same day, the ODM leadership issued a second - and a more measured - press
statement in which they promised to continue holding “meetings peacefully as we did on
Saturday.” More significantly, the ODM leadership appealed for “structured dialogue with the
president and the Banana Group on the way forward,” a call which Mr. Kibaki ignored.
Ref: Second Statement by the Orange Democratic Movement dated 28 November
2005; Expert Bundles of Documents, Vol. 1, Tab 16, para 1
By then, NARC was essentially dead. Kibaki, too, had publicly ‘joined’ a new political
entity fronted by Martha Karua, Raphael Tuju and Dunson Mungatana called NARC-Kenya.
Ref: Miguna Miguna, “With the electoral violations we’ve seen, NARK-K has good
reason to call for a snap poll,” 1 August 2006; Expert Bundles of Documents, Vol. 4,
Tab 39
c) Milton Mugambi Imanyara registered the Orange Democratic Movement in

December 2005
The national constitutional referendum was held on 21 November, 2005 and results released
the following day. When the ECK released the results, the ‘Orange Democratic Movement’ had
emerged victorious in 153 out of 210 constituencies. They had 57.0% while the Kibaki/YES
47
team received 43.6% of the votes. The Orange NO Team had been “backed by a majority of
voters in seven out of the eight provinces. Only in Kibaki’s own Central Province did the Yes’
campaign win a majority.”
Ref: Daniel Branch, 2011; Expert Bundles of Documents, Vol. 5, Tab 3, p. 259, para 2
Sometime in late 2005, or early 2006, when the leadership of the ODM finally tried to
register what they had assumed was their new political vehicle, they discovered that Mr. Milton
Mugambi Imanyara, an enterprising young lawyer and a member of the Meru ethnic group from
Eastern Province of Kenya, had rushed to the Registrar of Societies (now the Registrar of
Political Parties) without the knowledge, instructions or consent of the political leaders of the
Orange NO Campaign/ODM sometime in December 2005 and registered ODM, which those
leaders had believed was going to be their new political vehicle for any subsequent elections. But
the ODM political leadership continued to identify with ODM even though by this time, they
were aware that they didn’t legally own the name.
Ref: Discussions with Milton Mugambi Imanyara, December 2007 and in September
2013
To the best of my knowledge and recollection, Mr. Imanyara had not been part of the
Orange NO Campaign, nor was he a member of the informal and unregistered grouping called
the Orange Democratic Movement during the 2005 national constitutional referendum.
Ref: Discussions with Mr. Milton Mugambi Imanyara on various occasions in 2007
and in 2013
d) Orange Democratic Movement-Kenya is born [2006]
For a few months after the November 2005 referendum, Uhuru Kenyatta and other KANU
leaders (except Moi) who had opposed the enactment of the Wako Draft Constitution and
therefore had been leading members of the unregistered ODM, continued to attend its functions
and meetings. Moi, however, stayed away from the ODM.
48
In January 2006, Kalonzo, Raila and Ruto publicly declared that they were prepared to
support any one of them for the forthcoming presidential elections if that person emerged
victorious at free, fair and transparent nominations within one political entity.
Ref: Miguna Miguna, “Declarations by Kalonzo, Raila and Ruto are good for
democracy,” 17 January 2006; Expert Bundles of Documents, Vol. 4, Tab 21
Having failed to register ODM, the informal grouping of the Orange Democratic
Movement acted creatively by registering a new political entity called the ‘Orange Democratic
Movement-Kenya’ (“ODM-K”). The new entity chose ‘Maisha Bora’ [“Good Life”] as its slogan
and one whole orange without leaves and two half oranges as its symbol. I do not, however,
recall the precise date this entity was registered.
Ref: Independent recollections from media reports
The ODM-K Constitution states that it was “founded in 2006 by Kenyans whose vision
was to change the entrenched socio-economic inequalities, bad governance, corruption, ethnicity
and to tackle the growing poverty and marginalization of communities and disadvantaged
groups.”
Ref: ODM-K Constitution; Expert Bundles of Documents, Vol. 1, Tab 18, Preamble,
p. 2, para 2
At paragraph 1 of the Preamble, the ODM-K Constitution declares that “the party strives
for the achievement of equality, social and economic justice, freedom, the rule of law, national
unity and community solidarity by establishing a democratic, transparent and accountable
government that will institutionalize these values for the benefit of all present and future
generations.”
Ref: ODM-K Constitution, Preamble; Expert Bundles of Documents, Vol. 1, Tab 18,
Preamble, p. 2, para 1
The logo of the party was a green map of Kenya with an orange without leaves in the
centre, with the words Orange Democratic Movement-Kenya at the top of the orange, the words
49
“Maisha Bora” at the bottom of the orange and the words ODM-K in the centre of the orange.”
The party slogan was “Maisha Bora” and the party salute was a clenched fist with one thumb up.
Ref: ODM-K Constitution; Expert Bundles of Documents, Vol. 1, Tab 18, Arts. 1.2
& 1.4, p. 2 and p. 3, para 1
Article 2.1.1 of the ODM-K Constitution stipulated that the party was a “non-racial, non-
sexist and democratic liberation movement.” Article 2.2 sets out the values, among which were
“economic justice, respect for constitutionalism, rule of law and individual and people’s rights
and freedoms.” Article 4.4 provided for both ordinary and life membership, which were open,
upon application and approval, to all Kenyan citizens. “Group” and “corporate” memberships
(Arts. 4.5, 4.6, 4.7 and 4.8) were also open, upon application and approval, to organisations,
trade unions, professional associations, co-operative societies, student unions, political parties
and any other organization that subscribed to the party’s core values, objects and that accepted to
be bound by the party’s Constitution.
Ref: ODM-K Constitution; Expert Bundles of Documents, Vol. 1, Tab 18, Arts.
2.1.1, p. 3, Art. 2.2, p. 4, Arts. 4.4.1, 4.5, 4.6, 4.6, 4.7 and 4.8, pp. 7 and 8
My careful review of the ODM-K constitution does not disclose any provision that
embraced, tolerated or advanced sectarianism, hatred against any ethnic group or propagated
violence on any grounds.
Meanwhile, the ODM leadership continued to put pressure on Kibaki to reconvene

Parliament so that a resolution of the House could precipitate a snap election, failing which the
ODM threatened to force such reconvening of Parliament to force a snap poll.
Ref: Miguna Miguna, “Can LDP and ODM reconvene Parliament on their own?”
29 January 2006; Expert Bundles of Documents, Vol. 4, Tab 24
I recall joining ODM-K as a Covenant/Life Member in early 2006 when I had visited
Kenya. Before then, I had been a life member of the LDP, which had its head offices at the
Rainbow House on Amboseli Road in Lavington, Nairobi. When LDP later joined ODM-K as a
corporate member, those offices became the operating centre for ODM-K’s Strategic Team.
50
I also recall inviting Raila to Toronto, Canada, where he visited and addressed many
functions I had organized for him for four days in October 2006. He was accompanied by four
members of Parliament, Omingo Magara, Sospeter Ojaamong, Joseph Khaniri, Paddy Ahenda,
his aide George Opondo, and his bodyguard George Odiwuor.
In November 2006, I recall visiting Kenya again. Mr. Odinga had then inducted me into
an informal Strategic Team he had established to explore ways of him capturing the ODM-K
presidential nomination. Members of that team, who were then operating from the Raila Odinga
Centre (“ROC”) located on Elgon Road in Upper Hill, Nairobi, were, Dick Ogolla, Ceasar
Asiyo, Tony Cege/Chege and Mike Njeru. I would later convince Raila to allow Atsango
Chesoni (current head of Kenya Human Rights Commission) to also join that team.
At all material times, the ROC served as Raila Odinga’s private offices. There were other
people operating from there such as then Raila’s personal assistants Dave Arunga and Ochido (I
don’t know Ochido’s first name); Raila’s then personal secretary/receptionist, Susan Utugi
Kibathi (who would later also work from The Pentagon House in Lavington and from the Office
of the Prime Minister on Harambee Avenue, Nairobi); Raila’s personal bodyguards, Lumumba
Owade (“Fujo”) also called “Kowade” (son of Owade), Francis Ogolla and George Odiwuor.
Raila’s longstanding photographer Dominick Odhiambo and a man who did outreach called
Okoth (I don’t know his first name) who would later work as Dr. Adhu Awiti’s assistant in the
Office of the Prime Minister, were also working from the ROC. Raila’s daughter Rosemary
Akeyo Odinga, his son Fidel Odinga and Raila Junior also used to frequent this place. Another
person who used to visit occasionally and would operate from the ROC was Raila’s
speechwriter/ghostwriter, Sarah Elderkin.
It was Caroli Omondi and I who developed and prepared the initial structure for the Raila
Odinga for President Campaign Secretariat manual, including designing different functions and
qualifications for those offices, including that of the Campaign Manager.
By then, the ODM-K headquarters had been set up at the current Orange House, located
on Menelik Road, Kilimani/Hurlingham area of Nairobi. That is where Janet Ong’era and her
51
team were operating from. Caroli informed me that he owned Orange House and that ODM-K,
and later ODM, were renting the place from him. He also informed me that he owned the
property on Elgon Road where the ROC was based.
Between March and April 2007, I recall that major differences within ODM-K had
emerged, with Raila Odinga, Kalonzo Musyoka, Musalia and William Ruto all plotting and
scheming to be its flag-bearer for the forthcoming presidential elections. Although Uhuru was no
longer a serious factor in ODM-K, he maintained a surreptitious presence in it. Meanwhile, Mr.
Ruto had effectively joined the ODM-K even though he had not yet resigned as KANU secretary
general. He would do that much later, at the ODM Uhuru Park rally on October 6, 2007, which I
had attended.
There were claims that Uhuru, Ruto, Mudavadi and Kalonzo had ganged up to deny Raila
the ODM-K presidential nomination under the pretext that ‘a Luo was unelectable.’ And despite
the involvement of the so-called ‘Party Council of Elders’ such as Fred Gumo, Dalmas Otieno,
David Musila, Joe Khamisi, Gideon Ndambuki and William Ole Ntimama, among others, who
had been assigned the duty of mediating those differences, the fissures would soon lead to the
total collapse of the previously indomitable Orange Team.
Ref: Copy of ODM’s invitation card to Miguna Miguna “To the Official Launch of
the ODM Presidential Campaign. Date 6th October 2007. Venue: Uhuru Park;”
Expert Bundles of Documents, Vol. 3, Tab 17
Even though the ODM political leadership had managed to register ODM-K through
proxies, by May 2007, the party’s political leadership wasn’t as cohesive as it had been during
the constitutional referendum. There were simmering wrangles over leadership with each
potential presidential candidate their close allies strategizing and scheming on how they could
use the euphoria and popular support the Orange NO Campaign/ODM had generated during the
referendum to democratically and legally dethrone the Kibaki government from power either
through a snap poll (which they were demanding), or in the forthcoming general elections. These
wrangles worsened as the year wore on.
Ref: Miguna Miguna, “We must demand snap elections now,” 22 November 2005,
pp.; Expert Bundles of Documents, Vol. 4, Tab 10
52
Ref: Miguna Miguna, “Opinion polls are not the bellwether of voters’ choice,” 10
August 2006; Expert Bundles of Documents, Vol. 4, Tab 41
Ref: Miguna Miguna, “The real reasons why Orange House is on fire as Kibaki tries
to rig himself back,” 12 May 2007; Expert Bundles of Documents, Vol. 4, Tab 58
There were serious leadership challenges facing KANU, too, with a faction affiliated with
a former cabinet minister and Moi’s right hand man, Nicholas Biwott, claiming to have taken
over the party’s leadership from Uhuru. Another faction led by Gideon Moi was also pulling in a
different direction. The leadership wrangles even went to court. Subsequently, my view, based
on independent recollection and literature review is that Uhuru started getting distracted from
ODM-K and failed to attend many of its meetings as a result of these challenges.
Ref: Miguna Miguna, “Why Uhuru’s stand on Kanu is good for democracy,” 22
July 2007; Expert Bundles of Documents, Vol. 4, Tab 60
I have clear independent recollection that although Raila, Kalonzo, Ruto, Kenyatta,
Mudavadi, Balala, Nyagah, Henry Kosgey, Mutula Kilonzo, David Musila, Nyong’o, Kones,
William ole Ntimama, Franklin Bett, Dr. Sally Kosgei, Magara and other prominent personalities
were the de facto leaders of ODM-K, they had used less known persons like Janet Ong’era,
Daniel Maanzo and Said Kaitany to formally register the party. Ong’era became the Executive
Director of ODM-K with Maanzo serving as chairman. Other officers I knew who were working
at the ODM-K party secretariat were Nereah Musita (Logistics) and Ahmed Hashi
(Communications).
I also recall discussions I had with Raila Odinga in Mankato, Minnesota, where I had
accompanied him to a student conference from February 22-24, 2007 when he expressed
confidence that he would emerge winner of a democratic nomination contest within ODM-K.
Omingo Magara, Akinyi Wenwa Odinga, George Odiwuor and Ochido had accompanied him.
From Mankato, Raila travelled to another conference in Tallahassee, Florida, in March 2007.
53
e) Kalonzo runs away with ODM-K and Imanyara gives Raila the original ODM
As I recall it, on July 30, 2007, Kalonzo Musyoka’s differences with Raila Odinga had
reached a point of no return. On that day, and without any warning to Mr. Odinga, Mr. Musyoka
announced that he had taken over ODM-K. Kalonzo soon chose Dr. Julia Ojiambo of the Labour
Party of Kenya (“LPK”) as his running mate. They moved ODM-K’s headquarters and
secretariat from the Orange House to a different location in Nairobi. Mr. Musyoka decamped
with Mutula Kilonzo, David Musila and others who were predominantly of the Kamba ethnic
group. However, I have no independent knowledge of where that was.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 175, paras 2
&3
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 749, para
4, p. 750, para 2
Left with no party to contest the presidency, Raila turned to his longstanding friend Paul
Muite who managed to convince Milton Mugambi Imanyara to hand over the original ODM
party to Raila. This occurred on August 14, 2007. It is this entity that Mr. Odinga used to contest
the presidency of Kenya in December 2007. I know this from discussions I had with Mr.
Mugambi Imanyara and also from reviewing relevant literature.
Ref: Joe Khamisi, 2011; Expert Bundles of Documents, Vol. 5, Tab 2, p. 176, paras 3
4, p. 750, para 2
Although Mr. Imanyara remained the titular and registered Chairman of ODM after the
symbolic hand-over ceremony at the Orange House, and Mr. Odinga’s nominee Tony
Cege/Chege its registered Secretary General, Mr. Odinga, was, for all intents and purposes, the
de facto leader of the party. I am also aware that among the ODM-K secretariat employees that
remained with Raila after Kalonzo had left were Janet Ong’era and Ahmed Hashi, among others.
I remember reading media reports of Said Kaitany from the North Rift in the Rift Valley as one
of the new ODM office holders. However, the de facto political Chairman of ODM became
Henry Kosgey; Secretary General, Peter Anyang’ Nyong’o and Treasurer, Omingo Magara.
Ref: ODM Amended Constitution; Expert Bundles of Documents, Vol. 1, Tab 21
54
Shortly after Mr. Imanyara had handed over ODM to Raila, Musalia Mudavadi, William
Ruto, Najib Balala and Joseph Nyagah declared their interest in becoming the presidential
candidates for the party. To distinguish itself from Kalonzo’s ODM-K, I am aware that ODM
adopted the slogan, “Chungwa Moja, Maisha Bora” [“One Orange, Good Life”] instead of
ODM-K’s “Maisha Bora” [“Good Life”]. ODM’s symbol was one whole ripe orange without
leaves, as opposed to ODM-Ks one whole ripe orange and two half oranges.
Ref: ODM-K Constitution; Expert Bundles of Documents, Vol. 1, Tab 18, pp. 2-3,
Articles 1.2 and 1.4
The ODM Party of Kenya (as ODM legally became) held its presidential nominations at
the Kasarani Sports Complex on September 1, 2007 and Mr. Odinga emerged victorious with
2,656 votes against Mudavadi’s 391, and Ruto’s 368 and Nyagah’s 30. Balala received 4 votes.
However, during the nominations but before the voting exercise started, both Mr. Nyagah and
Mr. Balala had thrown in the towel and publicly backed Mr. Odinga, urging their supporters and
their delegates to do the same.
6, p. 756, para 1
In conversations I later had with Ms. Ong’era and Mr. Caroli Omondi in December 2007
over the ODM’s presidential nominations of 2007, they advised me that the majority of ODM
delegates from the Rift Valley actually ‘voted’ for Mr. Odinga, not Mr. Ruto, even though they
also admitted to me that they had ‘fixed’ the nominations by cleverly choosing mostly Mr.
Odinga’s supporters as delegates from around the country including from the Rift Valley.
Nonetheless, when the nominations were held in 2007, many ODM supporters and strategists
like me had reasonable beliefs that Mr. Odinga was more popular than Mr. Ruto in the Rift
Valley – even among the Kalenjin – in 2007. In fact, I believed then that Mr. Ruto only
supported Mr. Odinga’s candidature in 2007 because he was aware of this fact. In addition, I
have reasonable belief that Mr. Ruto might have thought, like many of us – and based on opinion
polls as well – that Mr. Odinga would defeat Mwai Kibaki at the December 27th, 2007 elections.
55
f) ODM’s Constitution, Manifesto and Policies from August to 30 December 2007
Constitution
ODM and Mr. Odinga contested the 2007 general elections under an ODM Constitution
that was amended and filed at the Registrar of Political Parties in September 2007 by the party’s
new secretary general Tony Cege/Chege, who also doubled up as the official fundraiser for the
Raila Odinga for President Campaign. In both the revised Constitution and the Campaign
Manifesto launched at Uhuru Park on October 6, 2007, the party set out its core values, vision,
mission and principles of leadership and governance that it sought to implement once elected
into power.
Article 1(b) of the Constitution stipulated that, “The Party is founded on the democratic
principles of Unity, Justice, Fairness, Peace, Liberty, Freedom and Equality.” Regarding
leadership, Article 1(c) stated that it would be based “on equality and liberty of all persons and
shall be based on the highest personal integrity.”
Ref: ODM Amended Constitution; Expert Bundles of Documents, Vol. 1, Tab 21,
Art. 1, p. 2
Article 3 outlined that membership was open to, “Any citizen of Kenya, who is eighteen
years old and above, and who accepts and adheres to the objects, policies, programmes, directive
and discipline of the Party…” upon application and payment of the required fees.
Art. 3(a) to (c), p. 4
For vision, the ODM Constitution stated that it stood for, “A society in which each and
every Kenyan lives in dignity and enjoys abundant economic prosperity, social justice and
democratic rights.” It underlined that its mission was, “To transform Kenya from bad governance
and poverty into a democratic, prosperous, socially just and equitable society, through
progressive economic, political, and social policies and programmes.”
It promised “real change” through accountable and responsive leadership and assured all
Kenyans of economic prosperity and equity and inclusivity in resource use and allocation once it
formed government after the 2007 general elections. “ODM affirms to all Kenyans that it shall
56
lead them into Maisha Bora” (or Good Life), it proclaimed. It undertook to “complete the
democratization of Kenya through the Bomas Draft Constitution and putting in place sustainable
institutions for democratic governance that will stand the test of time.”
Ref: ODM’s Vision for the 2007 Campaign/General Elections; Expert Bundles of
Significantly, the party stated that, “ODM leadership believes that every Kenyan and
every Kenyan community is important and that all areas of Kenya are uniquely of high potential.
It shall thus steer the citizenry into reaping the resources that lie in wait in the so-called low
potential areas. We believe that this is the surest way of eradicating poverty, correcting past
developmental injustices, prospering and developing into a modern industrialised and socially
just nation.”
Ref: ODM document titled, “The Real Change;” Expert Bundles of Documents, Vol.
2, Tab 1, p. 1, paras 1-5, p. 2, para 5
ODM’s main governance principles during and after the 2007 general elections
The party’s policy document underscored its belief that “every Kenyan and every Kenyan
community is important and that all areas are uniquely of high potential…” It concluded by
listing ten core policies it stated were its “contract with the people of Kenya;” not a section of
them, viz:
ODM shall transform Kenya from a third to a first world. We shall embrace cutting-edge
technology to transform our economy and to ensure dignified livelihoods for our people.
The ODM leadership shall shepherd the nation and, together with the citizens of Kenya,
i Achieve economic growth with equity and employment, particularly for the youth, in a
clean and sustainable environment;
ii Enact a new Constitution based on the Bomas Draft to realise change with democracy
and social justice;
iii Eradicate corruption and regain people’s trust in Government;
iv Devolve resources, service delivery and decision making to the regions;

57
v Eradicate tribalism, religious intolerance and all forms of discriminatory tendencies

through policies of inclusion and equity;
vi Build and maintain infrastructure (roads, electricity, railways, ports, airports, ICT) in all
regions in Kenya;
vii Provide water, health, housing and education to all Kenyans within the framework of
progressive policies of social provisioning;
viii Institutionalise, empower and enhance services to people affected by, and living with
HIV and AIDS, persons with disability, the disadvantaged and the disenfranchised;
ix Provide adequate security to make Kenya a better place to work and live in, and a place
to feel at home;
x Provide leadership within Africa region in championing regional integration, Pan-

Africanism and global peace.
Ref: ODM document, “The Real Change;” Expert Bundles of Documents, Vol. 2,
Tab 1, p. 2, para 4
ODM Manifesto
In a three page undated document titled, “ODM Manifesto Summary,” issues that were
comprehensively covered in its Campaign Manifesto launched at Uhuru Park on October 6,
2007, the party outlined its principal campaign platform, which included its undertaking to:
• Pursue policies aimed at achieving not less than 10% annual growth in GDP
accompanied with equitable distribution of wealth and resources.
• Establish a comprehensive and equitable system of social protection by introducing

social cash Transfer Programme for the absolutely poor.
58
• Invest at least 10% of the GDP in infrastructure development over the next 5 years, build
good roads in all parts of the country and address current regional imbalances in the
provision of roads infrastructure.
• Introduce a modern integrated rail infrastructure that connects all parts of the country.
The opening of the new rail line is our special pledge for Kenya’s 50th Independence
Anniversary.
• Enhance the reliability of electricity supply and increase access to and affordability of
electricity and other forms of energy, especially in rural areas.
• Renew Kenyans’ faith in politics by providing sound leadership based on principles of

consensus, fairness, equity, and inclusiveness. We view corruption and tribalism as
crimes against humanity that we will move with alacrity to banish.
• Ensure a new constitution based on the Bomas Draft is enacted within the first 6 months
of our administration.
• Disperse power and resources to communities as proposed in the Bomas draft

constitution. It is our firm belief that devolution of resources without democratic local
control is tyranny on a local scale.
• Recognize that we live in communities and therefore every Kenyan must feel part and
parcel of the communities they reside in be they in villages, towns or cities.
• Within the first 6 months enact a new constitution based on the Bomas draft, which
empowers women politically, economically and socially; and outlaws discrimination
based on gender.
59
• Firmly deal with crime, conflicts and insecurity as well as their causes; ensure the rule of
law is upheld in investigations, trial and punishment of crime; and law enforcement
agencies are adequately trained, resourced, equipped and their personnel motivated.
• Map crime “hotspots” in urban and rural areas and use CCTV cameras in central business
districts of Nairobi and major towns as a tool of crime detection and deterrence. To
complement the police, our defence forces will be deployed along the national borders to
stop the inflow of illegal small arms.
Healthcare: Your ODM government will roll out universal healthcare programme. As a
first step to realization of this programme, we will provide free ante-natal, maternity and
post-natal care as well as free and compulsory immunization and healthcare for children
under 5 years of age. We will enhance government spending in the health sector with a
view to having a 30-bed hospital in each location/ward.
Education: Your ODM government will improve quality education in primary schools
by reducing the student-teacher ratio, reviving school equipment scheme. We will further
introduce free quality secondary education; treat teachers like the professionals they are;
align curricular with the nation’s development needs; ensure access to quality education
to historically marginalized, especially children with disabilities and girls.
Housing, Water and Sanitation: Your ODM government will endeavour to build
150,000 affordable housing units; enact the Housing Bill 2006 and; establish housing
technology centres. We will also invest heavily in water and sanitation projects to attain
Millennium Development Goals’ targets.
• Entrench the rights of persons with disabilities as provided for in the Bomas Draft
Constitution; encourage participation of persons with disabilities at all levels of decision-
making; promote employment of persons with disabilities in public and private sectors
and; ensure full and free access for children with disabilities to institutions of learning
and training.
60
• Implement policies that reduce barriers to work; promote the role of SMEs in job
creation; promote labour-intensive infrastructure development and public works and;
transform jua kali and the entire informal sector into decent work fully integrated into
mainstream economic life.
• Undertake simultaneous improvement of agriculture with industry as well as invest in

irrigation so as to expand employment opportunities in rural areas.
• Ensures workers welfare and working conditions are improved. There will be special
incentives for those who work in difficult circumstances and/or essential services like
policemen and policewomen, teachers and health workers.
• Communities will be fully involved in developing policies and designing and carrying out
interventions aimed at combating desertification, mitigating climate change and
managing forests, wetlands, water catchments and water sources.
• Promote respect for cultural and linguistic diversity and reinforce national ethos of
honesty, hard work, self-reliance and patriotism. Inter-cultural exchanges and
preservation of national heritage will be given priority.
• Fully involve the youth in decision-making processes; develop a national Youth Policy
that reflects the hopes, aspirations and challenges of young people and; work with the
private sector to create employment opportunities.
• Develop sports and recreation facilities for sound physical and mental development of the
youth.
Ref: Executive Summary of ODM’s 2007 Campaign Manifesto; Expert Bundles of
Documents, Vol. 1, Tab 37, pp. 1-3
In other words, from the constitutional review process to economic, environmental, socio-
political, infrastructure, housing, health, equality to cultural issues, the ODM clearly articulated
61
its policies of inclusivity, its sensitivity, respect, understanding and accommodation for cultural,
ethnic and gender diversity. To my knowledge, ODM never stood for, promoted or advocated for
ethnic discrimination, stigmatization of, and/or violence against, any of Kenya’s forty-two-plus
communities.
ODM’s campaign message and activities were peaceful and legal
I wish to state here that based on my recollection and extensive review of relevant literature,
that I have seen not encountered any record of any alleged ODM’s propagation of violence,
sectarian or divisive policies. Throughout the ODM campaigns of 2007, I do not recall any
incidents of incitement by ODM leaders.
A careful review of ODM’s Constitution, Manifesto, “TOR for Regional Co-ordinators,”

“ODM Brief for Regional Coordinators on ODM Mission, Vision, Core Values and Campaign
Platform: Workshop on 5th October 2007 at the Orange House, Nairobi,” various propaganda
documents, “Election Strategic Action Plan 2007,” “SWOT Analysis,” “Party Policy and
Strategic Unit: ODM Manifesto and Programmes,” “Pre and Polling Day Activities Team,” and
“Activity Matrix” at Volume 2, Tabs 13, 14, 15, 16, 19, 20, 21, 23, 24, and 25 of the Expert
Bundles of Documents, do no disclose any information that could remotely imply that ODM
leaders, or ODM as an entity, promoted, advocated, abetted, or engaged in any activity that
wasn’t both lawful and peaceful.
Ref: Expert Bundles of Documents, Vol. 1, Tabs 4-39
However, I do recall an incident at Raila’s private offices located at the Raila Odinga Centre
(“ROC”) when I visited Kenya in November 2006 and was inducted into the informal Strategic
Team that was exploring Raila Odinga’s chances of clinching the ODM-K’s presidential
nomination, when Dick Ogolla, in response to my question on whether or not they had agreed on
the campaign’s policy platform, stated that ODM’s (and therefore Mr. Odinga’s) campaign was
going to be “against the Gikuyu hegemony…We are going to win this campaign on the policy of
1 against 41. All we need to do is to make Kenyans hate the Gikuyus. We need to ask Kenyans
62
whether they are prepared to elect another Gikuyu when we have had Kenyatta and Kibaki
already…Propaganda, not public policy will win this campaign….”
Mr. Odinga did not attend that meeting and was not present when Mr. Ogolla made that
astonishing statement. Mr. Odinga had gone to his office within the same building as we
discussed. And, as I have stated elsewhere, (Miguna Miguna, 2012, p. 171, para 4, p. 172, para
1), I strongly objected to that approach. Subsequently, I never heard of this so-called strategy
again, and in my opinion and recollection, it was not part of the ODM or Raila Odinga for
President Campaign for 2007, which I was deeply involved in. More significantly, apart from
Caroli Omondi and I, none of the participants at meeting, were members of the Raila Odinga for
President Campaign Strategic Team of 2007.
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab 5, p. 171, para 4,
p. 172 para 1, 2 & 3
My recollection is that during the 2007 electioneering period, a lot of threats were emanating
from the Party of National Unity (“PNU”) of Mwai Kibaki. For instance, I remember drafting
many press statements and letters of complaints on behalf of ODM addressed to the Electoral
Commission Chairman Samuel Kivuitu, or to the then Police Commissioner Mag-Gen Ali, or to
be read to the press. I also remember accompanying either Dr. Joseph Misoi or Dr. Amukowa
Anangwe for service or issuance of these letters and/or press statements on a few occasions in
December 2007 but before voting day on December 27, 2007.
Ref: Undated ODM “Press Statement Re: Alarming statement by Njenga Karume;”
Ref: ODM’s letter to the Commissioner of Police, Major-Gen. Hussein Ali dated 24th
December 2007; Expert Bundles of Documents, Vol. 2, Tab 29
Ref: Raila for President Secretariat’s letter to the Chair of the Electoral Commission of
Kenya dated 25th December 2007; Expert Bundles of Documents, Vol. 2, Tab 30
My opinion is that given the nature and level of popular support ODM had in 2007,
especially in the days leading to December 27th, 2007, and given my personal knowledge of the
tempo of, and involvement in, the ODM campaign at that time, there is absolutely no reasonable
basis for anyone in ODM to have planned violence against any one ethnic group, or more ethnic
63
communities or civilians. We were all confident and sure of a huge victory. We were planning
for a big celebration. Consequently, I do not believe that the allegation that Mr. Ruto was
involved in the recruitment, training and arming of Kalenjin youth before, during or after the
2007 elections is consistent with this material fact and/or the circumstances that were prevailing
on the ground.
The ODM campaign, to which I played a central role as a member of the Presidential
Campaign Strategic Team, and as an informal adviser to the Presidential Candidate Raila
Odinga, was based solely on its values, vision, mission and policies and the campaign manifesto
of 2007 and the eight Regional Manifestos. I clearly recall that the focus of the campaign was
first and foremost infrastructural development. In Raila’s acceptance speech (which I helped
draft) when he launched his presidential nomination campaign at the Kenyatta International
Conference Centre (“KICC”) earlier in 2007, he pledged that his campaigned would centre on
three things: infrastructure, infrastructure, and infrastructure!
Apart from infrastructure, however, I recall the campaign emphasizing on devolution of

power and resources; the rule of law and constitutionalism; and equality and equity, both in
terms of individual quality and equality of sexes and equity in terms of regional and ethnic
development. I have produced copies of the Mabadiliko Times for Nairobi, Nyanza and Coast,
which I worked on. However, I have not been able to locate the issues for Western, Central,
Eastern and Rift Valley. These were publications that were conceived and prepared by the
Presidential Campaign Strategic Team but produced through the Communications secretariat,
which was located at 49 Convent Road in Lavington, Nairobi.
Ref: Mabadiliko Times; Expert Bundles of Documents, Vol. 2, Tabs 5, 6 and 7
I assert, based on my recollection, knowledge and upon careful review of the campaign
materials I have produced in the Expert Bundles of Documents, that the ODM campaign of 2007
– its strategy, tactics, concepts, ideas, values, vision, policies, themes, speaking notes and the
Pentagon leaders’ speeches - that were developed by the presidential campaign strategy team, did
not authorize any ODM leader to prepare and/or execute any criminal agenda before, during or
after the 2007 general elections.
64
As far as I am aware – and notwithstanding the fact that I did not attend most ODM
rallies - ODM national leaders almost always stayed on topic and delivered according to the
script that had been agreed on during strategy discussions, which were in any event authorized
by Mr. Odinga himself, and also by the Pentagon, as a corporate body.
If there had been a plan, scheme or strategy targeting members of the Kikuyu community
in the Rift Valley, specifically, I believe I would have heard about it from members of the
Presidential Campaign Strategy Team. For the entire duration of the campaign, we used to assign
one, two or three persons to attend one rally or more with members of The Pentagon and for that
person or persons to report back to the Strategic Team significant incidents during the rally.
There were occasions like the Uhuru Park rally on October 6, 2007 and Nyayo National Stadium
rally on December 24, 2007, which were attended by all Pentagon members. However, at other
times, and on other occasions, members of The Pentagon would partner in twos or threes and
traverse different parts of the country. Such times, more than one member of the Strategic Team
would accompany those campaign teams. In other words, even though only one member of the
Strategic Team would accompany one team, in total, there would be more than one member
involved. However, members always reported back to the Strategic Team for lessons learnt,
improvements to be made, and generally to provide an objective, professional assessment of how
our teams were performing on the ground.
I have carefully reviewed the talking notes we prepared for leaders; the policy platforms
on land and devolution; notes of proceedings of the ODM national leadership fora; the
programmes and terms of reference for ODM Regional Coordinators during the electioneering
period; the ODM strategic action plan; the ODM Manifesto and Programmes; the ODM SWOT
analysis before elections; the ODM Pre and Polling day Needs and Activities; and the ODM
Activity Matrix. I have also carefully reviewed the ODM budget for the same period and a
propaganda item we had prepared and disseminated against Mwai Kibaki. I have also gone
through a list of ODM’s regional coordinators and their training manual.
65
However, I have not seen any line, word or phrase – even in the ODM budgets for that
period - that would suggest or imply that the ODM planned, intended to plan or was inclined to
plan violence during or after the December 2007 elections. Apart from Mr. Ruto and Mr. Henry
Kosgey, I have not encountered a name of any person in any of the documents that have been
accused, charged or prosecuted by any court. Yet, in my view, it would not have been possible
for these two ODM national leaders from the Kalenjin sub-group, the Nandi, to have planned
alone without anybody being privy to their schemes.
Even what some people might consider our harshest attack on President Kibaki during
the 2007 electioneering was, in my view, tame, if compared to the kind of propaganda rival
American presidential campaign teams usually engage in. Importantly, this was not part of the
propaganda used by any of the ODM national leaders. This document and its contents were used
by members of the Presidential Campaign Secretariats in Internet blogs. Although I have
diligently searched my records, I have not been able to locate any other, or one that anybody can
claim agitated for any type of violence. In my opinion, the target of this “50 Plus One Lies” was
President Kibaki and his record. The document ridiculed his record and legitimately called for
voters not to re-elect him. It was not targeting members of the Kikuyu community.
Ref: 50 Plus One Lies; Kibaki is a liar: He lies to Kenyans; Expert Bundles of
If Mr. Ruto had gone off script or deviated from the ODM campaign vision, policies or
manifesto, I would remember the tabling of such a report at a meting of the Raila Odinga for
President Strategic Team. This is because, with very few exceptions, I attended virtually all
Strategic Team meetings from November 18th, 2007 through to March 2008. But even if I had
not been present when such allegations, if any, had been made, I am confident that I would have
heard, or been made aware, of it, by now.
pp. 2-4, Art. 2, p. 4, Art. 3
Ref: ODM Party of Kenya Overall Campaign Budget: 1st September 2007 to 31st
January 2008 in Kenya Shillings; Expert Bundles of Documents, Vol. 1, Tab 25
Ref: Text of ODM’s 2007 Campaign Manifesto; Expert Bundles of Documents, Vol.
1, Tab 39, pp. 2-78
66
Ref: Raila Odinga’s speech at the launch of his presidential campaign; Expert
Ref: Forward to the 2007 ODM Campaign Manifesto, Expert Bundles of

Ref: ODM’s Vision for the 2007 Campaign/ General Elections; Expert Bundles of
Ref: Executive Summary of ODM’s 2007 Campaign Manifesto; Expert Bundles of

Ref: ODM document, “Real Change;” Expert Bundles of Documents, Vol. 2, Tab 1
Ref: ODM’s Land Policy for the 2007; Expert Bundles of Documents, Vol. 2, Tab 2
Ref: ODM document titled “Regional Coordinators” Updated 8/10/07; Expert

Ref: Mabadiliko Times (ODM Nairobi Manifesto) Price Ksh. 10; Expert Bundles of
Ref: Mabadiliko Times (ODM Nyanza Manifesto) Price Ksh. 10; Expert Bundles of
Ref: Mabadiliko Times (ODM Coast Manifesto) Price Ksh. 10; Expert Bundles of
Ref: Talking Points for ODM Leaders during 30th September Uhuru Park Rally;
Ref: Programme and Notes of Proceedings of ODM National Leaders Retreat at the
Naivasha Lodge from 30 September to 1st October 2007, sponsored by the National
Democratic Institute (USA); Expert Bundles of Documents, Vol. 2, Tab 9
Ref: Programme of ODM Regional Coordinators Training Seminar on 5th October

2007 at the Orange House; Expert Bundles of Documents, Vol. 2, Tab 12
Ref: Undated ODM document, “TOR for Regional Co-ordinators;” Expert Bundles
of Documents, Vol. 2, Tab 13
Ref: ODM Brief for Regional Coordinators on ODM Mission, Vision, Core Values
and Campaign Platform: Workshop on 5th October 2007 at the Orange House,
Nairobi; Expert Bundles of Documents, Vol. 2, Tab 14
67
Ref: Undated ODM propaganda document “1. Background;” Expert Bundles of

Ref: ODM’s Elections Strategic Action Plan 2007 dated 15th October 2007; Expert
Ref: Meeting on the Strategic Action Plan on 23rd October 2007 and Members’
Attendance List; Expert Bundles of Documents, Vol. 2, Tab 19
Ref: ODM’s Elections Strategic Action Plan 2007 dated 15th October 2007 (amended
on 23rd, 24th and 28th Oct 2007); Expert Bundles of Documents, Vol. 2, Tab 20
Ref: Undated ODM document titled “SWOT Analysis: SWOT analysis on the
candidate;” Expert Bundles of Documents, Vol. 2, Tab 21
Ref: ODM’s document “Party Policy and Strategic Unit: ODM Manifesto and
Programmes” presented at a Retreat of 30th October to 1st October 2007 at Simba
Lodge, Naivasha, which was funded by the International Republican Institute (IRI);
Ref: ODM document “Pre and Polling Day Needs and Activities Team;” Expert
Ref: ODM’s Campaign “Activity Matrix;” Expert Bundles of Documents, Vol. 2,

Tab 25
I recall attending both the ODM Uhuru Park rally held on October 6, 2007 and the last ODM
rally in Nairobi held at the Nyayo National Stadium on or about December 24, 2007. These two
rallies are fairly fresh in my memory because I attended the Uhuru Park rally with my friend
Atsango Chesoni and I had my Motorola mobile telephone handset stolen there. I also recall the
Nyayo National Stadium rally because I attended with both Green Josiah and George Ongaya,
and Green had his brand new Motorola telephone handset, which was red and exactly like mine,
and $250USD, stolen from him at the entrance of the stadium. In each instance, we believed that
the ODM youth pretending to be acting as our security stole our mobile handheld devices and
Green’s money. Moreover, those are the only ODM campaign rallies (apart from those I had
participated in during ODM parliamentary primaries in Nyando Constituency) that I had
attended. However, I admit that I cannot recall specific details of what each speaker at these two
meetings said, nor do I have video or audio taped copies of their speeches, nor the transcripts of
68
verbatim recordings of those two rallies. My recollection is that members of The Pentagon relied
on speaking notes the Strategic Team had prepared for them earlier.
Ref: Copy of ODM’s invitation card to Miguna Miguna “To the Official Launch of
the ODM Presidential Campaign. Date 6th October 2007. Venue: Uhuru Park;”
I vividly recall that Charity Ngilu, who was still the health minister in Kibaki’s government,
publicly defected to ODM at the Uhuru Park rally on October 6, 2007 by driving into the
function in her official limousine with the huge crowd cheering, and leaving the function without
her official vehicle. I recall seeing Mr. Odinga and the other Pentagon members arriving in a
branded and orange ODM bus. In addition, Mr. Ruto publicly announced at the Uhuru Park rally
that he had resigned as secretary general of KANU and joined ODM. I also recall that Ruto
issued a red card to Kibaki to symbolize his impending defeat on 27 December 2007 elections.
Ref: Copy of ODM’s invitation card to Miguna Miguna “To the Official Launch of the
ODM Presidential Campaign. Date 6th October 2007. Venue: Uhuru Park;” Vol. 3, Tab
17
At the Nyayo National Stadium, which was ODM’s last rally in Nairobi, just a few days
before Election Day, I recall hearing Mr. Odinga and other Pentagon members basically trying to
pump up ODM’s support base; warning the government against attempting to rig the elections;
and reminding the voters to turn up in huge numbers, to vote peacefully and to stay at their
respective polling stations until the votes had been tallied and results announced.
g) Structure and organogram of ODM’s 2007 Leadership and Campaign

There was both an informal and a formal ODM leadership structure. I will summarise these
two distinct structures below and illustrate them using both the ODM Constitution attached at
Tab 20 in Volume One, and the formal organogram attached at Tab 28 in Volume One of the
Expert Bundles of Documents. My sketch at Tab 9 in Volume Five of the Expert Bundles of
Documents is used only to complement the organogram at Tab 20 in Volume One. The campaign
structures – for both the party and the presidential campaigns in 2007 - were not provided for in
the ODM Constitution and therefore the structures the party established for the campaign, though
properly legal, were not necessarily, nor were they, explicitly captured in the body or text of the
Constitution.
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Formal (titular) leadership structure (Art. 7)

The “formal structure” is set out in the amended ODM Constitution of September 2007. The
amendment was necessitated by Mr. Imanyara handing over the party and its instruments to
Raila Odinga August 14, 2007.
Article 7 (a) through to (t) sets out the formal leadership structure of the party with the
National Chairman sitting at the top, followed in a descending order by two National Vice-
Chairpersons – one for operations and the other responsible for programmes. Next in line is the
Secretary General who theoretically also had two deputies, one in charge of operations and the
other responsible for programs. Third in command was the National Treasurer, also with two
deputies; the National Organising Secretary with two deputies, et cetera.
I am aware that between September 2007 and January 2008, the titular ODM chairman was
Milton Mugambi Imanyara, a Meru. He sat at the apex of the party with the Secretary General,
Tony Cege/Chege, a Kikuyu. However, I have no personal knowledge of who the titular deputy
chairpersons, deputy secretary generals, treasurer or deputy treasurers were during this period
were. This information is not available from the copies of the party documents I have attached in
my Expert Bundles of Documents.
Nonetheless, these were mostly titular leaders of the party. Although they handled daily
minor activities such as formally appending their signatures on documents and being sent on
errands on behalf of the Party, major decisions affecting the party were reserved/made by the
informal but de facto party leaders.
Art. 7 (a) to (t), pp. 6-9
Formal operational organs of the Party (Art. 8)

There were two types of the National Delegates Convention: the Annual Delegates
Convention and Special Delegates Conventions. They comprised the national officials, all
members of the National Governing Council, all party members of the National Assembly and
all Members of the Branch Executive Committee, pursuant to Article 17.1 of the Constitution.
Theoretically, the National Delegates Convention was the Party’s highest policy making organ.
70
However, as I explain below, in practical reality and day-to-day management of the Party, the
NDC was nothing if not a mere convenient rubber-stamp organ of the Party.
Art. 8 (a) to (b), pp. 10-11
Informal (de facto) leadership structure

After the ODM presidential nominations in 2007, Mr. Odinga, who was declared winner,
became both the Party Leader and Presidential Candidate. To ODM rank and file – and even to
the national media - he became the “Captain” of the ODM Campaign Team. During the entire
2007 campaign, Kenyans – even non-ODM members - used to refer to Mr. Odinga simply as the
“Captain.” As well, Mr. Odinga was adoringly referred to using his many nicknames such as
Tinga (‘Tractor’ from the symbol of his former political party, the National Development Party
(“NDP”); Hammer (a deliberate mangle of his famous vehicle Hummer); Nyundo (a Luo word
meaning ‘hammer,’ literally); Agwambo (a Luo word meaning ‘mysterious one’); Owad gi
Akinyi (a Luo phrase meaning ‘Akinyi’s brother’); and Wuod Nyar Alego (a Luo expression
meaning ‘Son of the daughter from Alego’). And at most political rallies Mr. Odinga attended,
some of his avid supporters would attend carrying huge wooden hammers.
In other words, Mr. Odinga was unquestionably the de facto ODM leader in 2007. He sat at
the very top of the party structure in terms of policy formulation and execution of party and its
campaign strategies and operations. In fact, even on matters that were not supposed to be
ordinarily vested on him such as hiring of staff and nomination of members of the various
campaign secretariats, Mr. Odinga was, with very few exceptions, the ultimate decision maker. I
am aware of the few individuals nominated by other Pentagon members. For instance, Kibisu
Kabatesi and Kenneth Ombongi were nominated to the Strategic Team by Mr. Mudavadi and
Mr. Balala, respectively.
I clearly recall many incidents when Raila directly made both significant and insignificant
appointments. For instance, he appointed his running mate and ODM Deputy Party
Leader/Captain, Wycliffe Musalia Mudavadi; he constituted and named all members of Pentagon
(Mudavadi, Najib Balala, Joseph Nyagah and William Ruto) who had unsuccessfully contested
ODM presidential nominations; and he inducted Charity Ngilu into the Pentagon after she
71
defected from Mwai Kibaki’s government on 6 October 2007. Raila also chaired all Pentagon
meetings.
In addition, Raila unilaterally named his Campaign Manager, Mohamed Isahakiah and
members of the Strategic Team (Prof. Edward Akong’o Oyugi, Prof. Peter Wanyande, Dr.
Adams Oloo, Oduor Ong’wen, Sylvester Kasuku, Green Josiah, George Ongaya, Said Athman,
Dr. Ogolla, Patrick Onyango Sumba, Tom Namwamba, Amukowa Anangwe, Mary Nyamongo,
Prof. Jacqueline Oduol and I); nominated all members of his Presidential Operations Team
(Isahakiah, Tony Cege/Chege, Ceasar Asiyo, Tony Gachoka and Mike Njeru); all members of
the Presidential Campaign Communications Secretariat (Rose Lukalo, Salim Lone, Sarah
Elderkin and Rosemary Akeyo Odinga); and , of course, everyone at his private offices located at
the ROC (Dave Arunga, George Opondo, Ochido, Okoth, Dominick Odhiambo and Susan Utugi
Kibathi). In fact, he even named some lower level managers of the six Presidential Campaign
secretariats and at the party national secretariat such as the manager at the Rainbow House,
James Ogundo (his relative), the party’s chief accountant, Joshua Kawino , among others.
Although the Presidential Campaign Strategic Team to which I belonged was solely
mandated with conceiving and developing the presidential campaign manifesto, strategies,
activity matrix for the operations team, talking points for the Presidential Candidate and his
Pentagon colleagues as well as providing the communications team with notes and outlines of
major speeches, in reality – and quite properly – most of these ideas and drafts, had to receive
Raila’s permission before they could be unveiled. Although we used to present ideas to other
members of The Pentagon as well, Mr. Odinga retained the ultimate discretion.
The official ODM organogram attached at Tab 28 in Volume One of the Expert Bundles of
Documents and my sketch at Tab 9 in Volume Five of the Expert Bundles of Documents clearly
place the ODM Presidential Candidate at the top of the party leadership structure. In the official
organogram, his (Raila’s) second in command was the ODM Pentagon, then the Presidential
Campaign Council (which was essentially members of the Presidential Campaign Secretariat, the
National (Party) Secretariat and the Party National Officials such as the de facto Chairman,
Secretary General and Treasurer), the National Secretariat, eight Regional Coordinators
72
representing Rift Valley, Western, Nyanza, Eastern, Coast, North Eastern and a combination of
Nairobi and Central Provinces. The chart then lists coordinators in each of the eight regions all
the way to the polling station level.
In reality, however – and as I recall it - Mudavadi was both his running mate, the Deputy
Captain and Party Leader, and therefore, was the second in command at all material times.
Whereas I cannot claim to know or remember everyone who held positions at the six ODM
secretariats during the 2007 general elections or the coordinators based in Nairobi or at the eight
provinces, the documents I have attached to the Expert Bundles of Documents clearly show that
ODM was fairly well organised and structured in 2007, even if in both formal and informal/ ad
hoc manner.
Theoretically under a democratic constitution, the members of a political party, through a

national delegates’ conference, are supposed to be the ultimate decision makers. However, the
practical reality in ODM was that Raila Odinga was the de facto party leader and ultimate
decision-maker on operational, policy and strategic matters. In my experience and based on my
recollection, there were no significant decisions that were taken without Raila’s approval. This
ranged from nomination of all The Pentagon members, to members of the strategic team, the
operations team, the communications team and even later, the Speaker of the National Assembly,
Kenneth Marende. Essentially Mr. Odinga either nominated all the secretarial members or
various other party operatives.
h) ODM Campaign Secretariats and office holders in 2007-2008

ODM had six secretariats located in different parts of Nairobi during the 2007 elections.
• The Pentagon House/Secretariat, Ole-Odume Road, off Argwings Kodhek and

Gitanga and Oloitoktok Roads in Lavington, Nairobi.
This is where the ODM Presidential Candidate, Party Leader and “Captain” had his principal
campaign office during the electioneering period in 2007, up to and including April 2008. It was
73
also the place where members of The Pentagon (Mudavadi, Ngilu, Ruto, Nyagah and Balala)
operated from.
I have no personal knowledge of how the name “Pentagon” came to be used to refer to the
top ODM campaign organ. I have never sought this information from anyone. However, I am
aware that ‘Pentagon’ was a name or term that was first used by ODM-K leaders, when Raila
Odinga, Kalonzo Musyoka, Uhuru Kenyatta, William Ruto, Musalia Mudavadi, Najib Balala and
Joseph Nyagah were still together (see Joe Khamisi, 2006, at p. 175, paras 3 and 4). And after
Mr. Odinga had been declared the ODM Presidential Candidate at the Kasarani Sports Complex
on September 1, 2007, he named his four competitors, Ruto, Mudavadi, Nyagah and Balala, as
members of his 2007 ‘Campaign High Command’ called The Pentagon, which was initially
comprised of five members. Hence, before Ngilu was inducted into the group in October 2007,
the ODM top leadership comprised ‘five leadership sides,’ like the mathematical five figured
diagram. Except that in the ODM case, the ‘five sides’ were not equal in terms of power and
authority, both within the party, and obviously, within the Raila Odinga for President Campaign.
I also believe that the term ‘Pentagon’ must have been borrowed from the United States of
America where The Pentagon is the headquarters of the United States Department of Defence,
therefore a symbol of US power. At this time, ODM’s popularity and political influence in
Kenya, was in no doubt to observers.
Ref: Joe Khamisi, 2006, supra; Expert Bundles of Documents, Vol. 5, Tab 2, p. 175,
paras 3 & 4
Most meetings of The Pentagon took place at The Pentagon House in Lavington, Nairobi. On
a few occasions, however, members of The Pentagon also held meetings during lunch or
breakfast at different locations like at the Osteria Restaurant on Lenana Road, Nairobi or at the
Palacina Hotel, Nairobi. It is possible that a few breakfast meetings took place at the Serena
Hotel, Nairobi. However, I am distinctly not aware of any Pentagon meeting that took place at
the Norfolk, the Hilton or the Stanley Hotels in Nairobi during this period. I know this because I
attended a few meetings at the Palacina Hotel and at the Osteria Restaurant on Lenana Road
(there is another one in Karen and one in the Central Business District next to the Central Bank
Building in Nairobi) during the same period. However, because I was never invited to most of
The Pentagon meetings, I cannot assert that members never held at any meeting(s) at any other
74
place. My disclosure here constitutes what I recall from being closely involved in the 2007 Raila
Odinga presidential campaign.
To the best of my knowledge, and except for press briefings, all meetings held at The
Pentagon House were private and not public. Without exception, all Pentagon meetings were
chaired by Raila. Moreover, The Pentagon House was under very tight security from November
2007 to April 2008. Only pre-screened and/or pre-authorised persons were allowed in. Even
members of the other five secretariats could not be admitted without prior authorisation. There
were instances I had to intervene to have two members of the Strategic Team (Tom Namwamba
and Mangira) access The Pentagon House after December 27, 2007. I have no knowledge of any
minutes taken of or during Pentagon meetings. However, after Kibaki was sworn in on
December 30, 2007, Sarah Elderkin would often take notes. Salim Lone and I also took notes on
a few occasions. But these were not minutes, nor were they formal or verbatim records. My
knowledge and recollection is that there were no audio, video or electronic recordings of
Pentagon meetings or any proceedings at The Pentagon House.
It is also important to underline that Pentagon meetings were closed to non members. Only
invited non members attended. Not even the party chairman, secretary general or treasurer could
attend Pentagon meetings uninvited.
The secretary/receptionist/typist at The Pentagon House was Mr. Odinga’s private secretary,
Susan Utugi Kibathi, a Kikuyu. However she never attended Pentagon meetings, which always
took place inside Mr. Odinga’s office. From around December 25, 2007, I was among a few
members of the Presidential Campaign Strategic Secretariat (together with Sylvester Kasuku,
Kibisu Kabatesi, George Ongaya, Joe Ager, Edward Oyugi, Jacqueline Oduol, Oduor Ong’wen,
Said Athman, Kenneth Ombongi, Amukowa Anangwe, and Green Josiah) who started operating
from both this place and at the Rainbow House, which was the operating headquarters for the
Strategic Team.
Around the same time, members of Isahakiah’s Operations Team such as Jeremiah Ng’eno,
Tony Cege/Chege, Tony Gachoka, Ceasar Asiyo, Abdulrahman Iddris, Mike Njeru and Tom
75
Ogutu also relocated to The Pentagon House. I also remember that Salim Lone, Sarah Elderkin,
Rosemary Akeyo Odinga, Caroli Omondi (who was Raila’s aide, not his adviser), George
Opondo, Ochido and Raila’s private bodyguards such as Lumumba Owade (or Kowade) George
Odiwuor, Francis Ogolla, Maurice Ogeta, were also operating from this location.
Although former Police Commissioner Eric Nyaseda had been Raila Odinga’s head of
security during the 2007 campaigns, by late December 2007, he was already ill and didn’t attend
many meetings.
Occasionally, the party national officials (Kosgey, Nyong’o and Magara) and Ong’era, Dr.
Misoi and Dr. Anangwe also attended meetings at this location. After January 3, 2008 both
Anangwe and Dalmas Otieno joined the Pentagon Technical Team and started operating from
this place as well. I attended many meetings at this location, and in fact operated from there full-
time from about December 24th, 2007.
• ODM National Secretariat/ Orange House located on Menelik Road in the

Kilimani/Hurlingham, Nairobi, was the ODM national party headquarters.
This was where the de facto Secretary General (Peter Anyang’ Nyong’o), as head of the
secretariat and party spokesman, had an office. The de facto party chairman (Henry Kosgey) and
de facto treasurer (Omingo Magara) also operated from this location. The day-to-day running of
this secretariat was in the hands of the Executive Director, Janet Ong’era. The Chief Accountant
was Joshua Kawino. Ahmed Hashi was in charge of communications; Ole Kina was responsible
for ODM election agents and outreach (Caroli Omondi was in charge of the presidential election
agents). There was a secretary/typist called Ruth Otieno. She would often take notes and minutes
during some ODM retreats including that of the ODM Strategic and Legal Teams.
The party secretariat based at the Orange House in Nairobi (Menelik Road,
Kilimani/Hurlingham, Nairobi) was formally headed by the de facto Secretary General, Anyang’
Nyong’o and the Executive Director, Janet Ong’era. There were also other party apparatchiks
such as the Chief Accountant Joshua Kawino who had offices within the secretariat.
76
Mumbi Ngaru and Samuel W’Njuguna, two ODM members of the National Executive
Committee (and members of the Kikuyu ethnic group from Central Province) were also
operating from Orange House. They were jointly election coordinators for Mount Kenya West,
which covered Kiambu, Thika, Murang’a, Maragua, Nyandarua and Nyeri.
However, despite being top legal/formal party office holders, Mr. Imanyara and Cege/Chege
did not have offices at the Orange House. While Cege was responsible for the Presidential
campaign fundraising and was a key member of the presidential campaign operations based at
the Titan House, Mr. Imanyara was not a member of any of the six secretariats. However, he
coordinated Mr. Odinga’s presidential agents in the ‘Greater Meru Region.’
The Party Leader and Pentagon members had no offices at the National Secretariat.
However, most party meetings and press conferences, including those of the National Executive
Committee, were held at this location. As well, the National Executive Committee (“NEC”), the
National Elections Board (“NEB”) then headed by Richard Otieno Kwach and the Parliamentary
Group (“PG”) meetings were held at this location. In fact, NEB had offices at the same location.
But like NEC members, NEB members were deemed volunteers who only attended meetings
when required. After NEB completed party nominations in November 2007, its work was
completed for that electoral cycle.
According to ODM’s document titled, “The National Party Secretariat,” from September
2007 to January 2008, the National Party Secretariat was to perform the following formal
functions:
- Effective management and liaison with other organs.
- Voter outreach and membership recruitment.
- Registration. Mobilization and maintenance of voter/member register.
- Coordination, facilitation and synchronization of overall party campaign, activities
and events.
- Public relations, communication and media outreach.
- Fundraising and resource mobilization.
77
- Campaign strategies.
- Party policy and research.
- Regional coordination.
- Liaise with all party structures.
- Management of Party affairs in general.
This document indicates that the party Executive Director was the overall coordinator of
the secretariat and was also in charge of budget, resource and program management. Under her
were seven deputy directors reporting directly to her.
At page 4, the document lists members of the Party’s ‘resource mobilization committee’
as comprising Hon. [Omingo] Magara as “convenor” and Dr. Sally Kosgei, Mr. Hisham
Mwidau, Mr. Ambrose Rachier and Hon. Chris Obure as members.
Ref: A document titled, “The National Party Secretariat,” from September [2007] to
January 2008; Expert Bundles of Documents, Vol. 1, Tab 29, pp. 1, 4, 5 and 6
I am personally aware that the Party fund-raised both formally through the ‘Resource
Mobilisation’ Committee by organizing dinners and other events. On its part, party national
secretariat appealed for funds directly to party supporters and sold T-shirts and other campaign
paraphernalia as well as by charging aspirants for various elective positions flat rate nomination
fees. Party aspirants would also purchase large quantities of membership cards to distribute to
potential party members before nominations since, legally, only paid-up and registered party
members were supposed to participate during nomination exercises.
I am aware that the Party, through its many organs and functionaries, as well as the Party
Leader Raila Odinga, Pentagon members and other national party leaders and supporters who
were either independently wealthy or had wealthy colleagues, friends and business associates,
supported the party’s activities through financial and material donations. Because there was no
finance campaign law in Kenya during this period, the contributions – some of which were in
tens of millions of Kenya Shillings - were sought and obtained secretly, and mostly in cash
without any paper trail. I am also aware that one such wealthy donor was former President Moi’s
78
personal assistant Joshua Kulei. Even The Pentagon House was reportedly donated by him to the
Raila Odinga campaign for 2007.
I am also aware that there were other informal and ad hoc party organs that assisted in
fundraising and campaigns such as “Orange Women Democrats,” which had an executive
committee chaired by Prof. Jacqueline Oduol (Luo) and whose members comprised Lorna
Laboso (Kalenjin), Susan Mang’eli (Luhya), Mumbi Ngaru (Kikuyu), Janet Ong’era (Kisii),
Catherine Muma (Luhya), Nancy Abisai (Luhya), Monica Amolo (Luo), Rachel Shebbesh
(Kikuyu), Sophia Abdi Ali Noor (Somali), Veronica Ng’ang’a (Kikuyu), Settla Mureithi
(Kikuyu), Bishop Margaret Wanjiru (Kikuyu) and Rosa Buyu (Luo), among others.
Between November and December 2007, I recall seeing structures with stalls or booths
inside the Orange House compound where ODM and Raila Odinga’s paraphernalia and other
party publications like the Manifesto, the Regional Manifestoes and other booklets were sold
and/or distributed. Anyang’ Nyong’o’s wife, Dorothy Nyong’o, used to sell ODM and Raila
Odinga’s merchandise for profit from one of the booths inside the Orange House. I have
knowledge that she used to exclusively produce those materials through her private company, 7th
Sense Communications, whose operating office was the couple’s residence on Camphor Road in
Runda estate, Nairobi, where they were one of my neighbours.
Often, notes and minutes were taken in long hand during most meetings at the Orange
House. Different individuals were allocated the responsibility of taking notes during these
meetings. However, often, it was the secretary Ruth Otieno doing it. But occasionally, I also
recorded some proceedings at the Orange House. Apart from press briefings, there were no
verbatim, audio, video or electronic recordings of proceedings at the Orange House. Almost all
meetings at the Orange House, except for the press conferences, were on invitation only even
though the Party National Secretariat was deemed to be a public building for members of the
party.
79
• Rainbow House/Strategic Team, located on Amboseli Road, in Lavington, was the

operations base for the Strategic Team.
This used to be the LDP headquarters before ODM was formed. However, it served as the
offices for the Raila Odinga for President Campaign Strategic Team Secretariat for 2007. The
chairman of the Strategic Team was Professor Edward Akong’o Oyugi. Members included Dave
Anyona, Peter Wanyande, Adams Oloo, Oduor Ong’wen, Kibisu Kabatesi, Sylvester Kasuku,
Dr. Ogolla Nyainda, Mangira, Koitamet ole Kina, Caroli Omondi, Said Athman, Kenneth
Ombongi, Larry Gumbe, Jackline Oduol, Patrick Onyango Sumba, Green Josiah, George
Ongaya, Joe Ager, Mary Nyamongo and I. I was informally in charge of research and public
policy analysis in this group. I also drafted most of the press statements, releases and letters on
behalf of the Raila Odinga Presidential Campaign.
There was no official note-taker, but proceedings were recorded in long hand by members.
The chairman used to assign one person to take notes for the meetings. Usually, the persons)
responsible for a particular task would be responsible for researching on and preparing briefing
notes for the meeting. Records of proceedings were often prepared by Oduor Ong’wen, Dave
Anyona, Sylvester Kasuku, Kenneth Ombongi or I. However, apart from press briefings and
conferences, there were no verbatim, audio, video or electronic recordings of proceedings at the
Orange House.
The Strategic Team’s mandate included conceiving, crystalizing and preparing campaign
strategies, manifestos, policies, platforms, speaking notes, draft speeches, SWOT analysis,
opinion poll questions, advertisements and any other material required during the 2007
campaign. The worked closely and in collaboration with all the other campaign organs including
the party national secretariat. However, apart from the pre and polling day needs and activities
contained at Tab 24 in Volume Two of the Expert Bundles of Documents, and activities related
to the mediation process following the post-election violence, members of the Strategic Team did
not participate in operational matters. Members of the Strategic Team closely monitored and
analysed all operational matters before, during and after the 2007 elections.
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• 49 Communications located on 49 Convent Road, Lavington in Nairobi was

responsible for communications, including advertisements and media for the Raila
Odinga Presidential Campaign.
Initially, Kibisu Kabatesi headed the presidential communications campaign unit. However,
he was soon replaced by Rose Lukalo who, though the titular head of communications, was
actually playing a subservient role to Salim Lone. Kibisu then joined us at the Strategic Team.
The individuals who ran operations at communications were: Salim Lone who was Raila’s
spokesman; Sara Elderkin, who was Raila’s speech writer and ghostwriter; and Rosemary Akeyo
Odinga, who is Raila’s daughter. Salim’s assistant John Otieno also worked there. I attended a
few meetings there during the elections, especially between late November and Election Day. I
used to be nominated by the Strategic Team to watch ODM ads, verify if they conformed to our
campaign strategy so that I could, on behalf of the team, approve or recommend changes.
This communications unit was solely responsible for all published and electronic messages
from the Raila Odinga campaign, including media advertisements. This distinction is important
because the party communications unit then titularly headed by Ahmed Hashi and based at the
Orange House, was responsible for all communication pertaining to ODM campaigns for
parliamentary and civic elections.
• The Titan House/Operations, located on Chaka Road, Kilimani/Hurlingham,

Nairobi, was the operations/coordination headquarters.
Mohamed Isahakiah, who was formally Raila Odinga’s Campaign Manager in 2007, was
based the Titan House, which had actually been his private offices before the 2007 campaigns.
Formally, Titan House was the operations unit for the Raila Odinga for President Campaign.
They raised and kept resources for the presidential campaign. They booked presidential
campaign events. They hired or leased aircraft, vehicles and other facilities for the campaign.
They coordinated campaign events, even though the schedules of those events were drawn by the
Strategic Team, Mr. Odinga and the Pentagon. They were, however, solely responsible for the
logistics of these events. They travelled with the Presidential Candidate and his campaign teams
81
to all such events and rallies. But they solely relied on the strategy and tactics that had been
conceived and designed by the Strategic Team. With Isahakiah at the Titan House were
Nehemiah Ng’eno, Tony Cege, Mike Njeru, Tony Gachoka, Tom Ogutu, Ceasar Asiyo and
Abdulrahman Iddris. The latter was not formally a member but was brought in by Isahakiah as
his personal assistant. I never attended any meetings at this location.
• The Raila Odinga Centre (“ROC”) was located on Elgon Road in Upper Hill,
Nairobi.
ROC served as Raila’s private offices but it was also an operational centre for the campaign.
For instance, on about December 26th, 2007, it served as the place where all presidential agents
in Nairobi and Central Provinces were issued with their appointment letters and allowances. I
was present when this was done.
This was also the initial nerve centre of Raila’s campaign to get ODM nomination. Apart
from Raila who used the offices for conducting personal business and meetings that he did not
want to have at any of the five secretariats, his children Fidel Odinga, Raila Junior and Rosemary
Akeyo Odinga also used the ROC. In addition, Raila’s personal assistants during this period,
Dave Arunga and Ochido were also based there. As well, Mr. Odinga’s consultant Dr. Atul
Vadher from the United Kingdom would also use these facilities.
Initially, the ROC also served as the operation base for Mr. Odinga’s presidential Strategic
Team before it was expanded and relocated to the Rainbow House. There was no policy or rule
on how records of proceedings or meetings at the ROC were recorded. My recollection is that
they were rarely recorded, and when this happened, it was at the discretion of participants, who,
more often than not, jotted down things in their long hand. I am not aware of any verbatim
recordings. I attended many meetings at this location.
English was the language for all secretariat meetings and documents. Any translations were
done at the communications unit.
Ref: Independent recollection.
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i) October 2007 to 28 February 2008

In the months leading up to 2007 general elections, I recall reading and hearing of media
reports of what appeared like sporadic and uncoordinated violence and threats of violence around
the country, especially around the Mount Elgon, Kuresoi, River Tana, Baragoi and in Kisii where
Ruto and Magara were viciously attacked and seriously injured with bows, arrows and other
crude weapons. I don’t recall the month or precise date when this incident occurred but it was
during the electioneering period of 2007. There were a lot of media reports indicating that some
PNU-allied cabinet ministers were also trying to fan fear and despondency in perceived ODM
strongholds. Incidents of planned rigging and attacks between rival youths were also reported.
As a member of Mr. Odinga’s strategic team, I believed that these cases of sporadic violence
might have been choreographed to prevent most ODM supporters from voting, thereby
artificially reducing Mr. Odinga’s total vote tally. If this happened, then it was Mwai Kibaki who
would benefit as these were known ODM strongholds.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 760, paras 2
and 3; p. 762, paras 2, 3 and 4
ODM leaders continued to consistently allege that Kibaki and powerful elements in his
government planned to rig the elections. We had also warned that Kibaki was planning to
orchestrate violence in ODM zones to prevent voters from turning out in large numbers and
voting and/or in order to disrupt counting and tallying. I recall that we used to give the example
of Kibaki’s unilateral and irregular appointment of his cronies as ECK commissioners contrary
to the Inter-Parties Parliamentary Group accord of 1997 which stipulated that the opposition
would be consulted before ECK commissioners were appointed, a provision he disregarded.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5, Tab 7, p. 758, para 3; p.
759, para 2; p. 763, para 3; p. 766, paras 3 and 5; p. 767, para 1
However, my overall impression of the ODM campaigns leading up to the 2007 general
elections is that apart from incidents when ODM leaders and supporters were targeted by threats,
intimidation and attacks by PNU-allied youth, the ODM campaigns were fairly peaceful. I do not
recall any incident when any leading ODM politician was reported to have uttered a reckless,
inciting or threatening statement against their political opponents. Similarly, I do not recall any
83
particular violent incident involving or targeting President Kibaki and his PNU team. More
significantly, to the best of my knowledge, there was no systematic design, idea or activity that
ODM planned to cause violence or to evict civilian populations during or after the 2007
elections.
Nonetheless, there were media reports of ‘dirty tricks’ and ‘violent language’ in campaign
propaganda leaflets, short text messages and emails by unnamed elements. According to Mr.
Odinga’s account, “On November 30, a Daily Nation editorial reported, “Dirty tricks are now
unspeakable…We are being assaulted daily by the most violent language in campaign leaflets
being strewn all over the place and in messages going out via sms and email…What we have
witnessed so far is frightening enough. We certainly do not want it to degenerate to the situation
where the peaceful co-existence between Kenyans of different communities or political
persuasions are [sic] damaged beyond repair […]
There were rumours and media reports, which I recall, of schemes by the Kibaki government
to rig the 2007 elections. I recall media reports of inflammatory statements and threats reportedly
made by former internal security minister John Michuki and former defence minister Njenga
Karume specifically. Even Kibaki’s wife Lucy Kibaki was reported as telling Ida Odinga that she
would wait for a very long time to be the first lady. Michuki and Karume were quoted as
advising the ODM team and Raila Odinga to remember who was in charge of the military before
presuming that ODM and he [Mr. Odinga] would win the elections and assume power.
Further, anti-ODM propaganda aimed at ethnically balkanizing the country was being
disseminated in leaflets in Nairobi and its environs. I recall publishing an article titled, ‘Say no to
ethnic hatred’ on or about December 12, 2007 in response to a pamphlet that announced a three-
day fiesta of oathing and “commemoration of God’s Covenant box put on Mt. Kenya in 1210
AD.” Apparently, the oathing ceremonies were to be conducted among the Gikuyu, Embu, Meru
(GEMA) communities from November 20th to 22nd, 2007, inclusive. However, let me emphasize
that I did not confirm the authenticity of this material and therefore cannot authoritatively claim
that it emanated from Mr. Kibaki’s campaign.
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Ref: Miguna Miguna, “Say no to ethnic hatred,” December 12, 2007; Expert Bundles of
Meanwhile, Mr. Odinga and other ODM leaders were preaching peace, unity and ethnic
harmony as they intensified their campaigns against Kibaki and his ethnocentric administration. I
recall preparing a strategy paper for Raila titled, “Together for Our Country – ODM 2007: A
National Conference of ODM Parliamentary Candidates,” which was intended to heal the rifts
and divisions that had emerged from the shambolic nominations ODM had conducted at the
parliamentary and civic levels and to rally the party for the forthcoming elections.
Ref: Together for Our Country – ODM 2007: A National Conference of ODM
Parliamentary Candidates; Expert Bundles of Documents, Vol. 2, Tab 27
ODM was aware and fully and directly confronted the intractable challenges presented by
ethnic rivalries and conflict. At a conference in the USA in 2006, after contextualizing the
origins of ethnic rivalries and competition in Africa by tracing it back to the period of slavery,
slave trade and colonialism, Mr. Odinga had argued that:
[…] Thus we found people with a common language and culture bandying together to form
or belong to the same organization or party in order to compete for political power, primarily as a
leverage for a share of the scarce resources. In addition, there is an understandable psychological
association between certain ethnic groups and political parties in ethnically segmented nations in
Arica. Hence, ethnicity has a direct and indirect impact on political behaviour – positively and
negatively. However, ethnicity as a political tool remains one of the daunting obstacles to the
democratization enterprise in Africa. […] The interesting thing is that just like during
colonialism, again it is state repression in the 1980s and 1990s that brought the communities in
Kenya together. As our jails and detention centres were getting filled with Kenyans from all
nationalities, people began to realize they had to fight as a nation not as tribes to achieve positive
change for the country. […]
Ref: Raila Odinga, “What role does ethnicity play in Africa’s elective politics?”; Expert
Bundles of Documents, Vol. 1, Tab 24, p. 4, paras 4 & 4; p. 17, para 4
As the person who had prepared that speech for Mr. Odinga, and one who was intricately
involved in drafting other speeches, speaking notes and strategic blueprints for him and for the
ODM leaders, I can say with confidence, that the ODM leadership I worked with in 2007, saw
ethnicity as both a challenge and an opportunity for the country; a challenge because if misused
85
and mishandled, ethnic differences could lead to tragic divisions, civil war and humanitarian
catastrophe as we have seen in Nigeria and Rwanda, specifically. However, we saw it as an
opportunity because if harnessed and channelled properly, ethnic diversity could be used to build
thriving, positively competitive and productive societies and countries. The point Mr. Odinga
was making is that under slavery, colonialism and post-colonial repressive regimes, ethnic
differences were exploited to divide and weaken African peoples so as to perpetuate
retrogressive domination and rule. However, in unity and under a democratic system, ethnic
diversity has always been the tool for liberation and prosperity.
During this period (months preceding the 2007 general elections), local human rights
organisations and newspapers were reporting many incidents of extra-judicial killings (which we
suspected were being perpetrated by assassination squads in the Kenyan security forces), missing
persons and large numbers of civilians internally displaced in different parts of the country. As
members of the Strategic Team, I recall our discussions about these unusual acts of violence and
instability. We generally felt that Kibaki must have been planning to cleverly lay the ground
work for disenfranchisement of hundreds of thousands of voters in ODM strongholds as a way of
ensuring that they would not manage to vote thereby resulting in him winning the elections by
default.
775, para 2
Ref: Miguna Miguna, “Who are responsible for these grisly carnage?” 14 October
2007; Expert Bundles of Documents, Vol. 4, Tab 60
Significantly, Mr. Odinga states that, “On December 10, Kivuitu said he planned to summon
political party leaders for a dressing-down on their failure to check their supporters. He also
pointed out that the attorney-general had the power to deal with rising cases of poll violence, and
he blamed preventable deaths on the A-G’s inaction. Rift Valley provincial commissioner
Hassan Noor blamed political leaders for fuelling hatred among communities and warned that
they would be prosecuted…” Yet, I remember that the government took no steps to stem the
violence.
776, para 3
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In addition, I do not recall seeing or hearing about any arrests or prosecutions related to these
reported pre-election violence. My view is that no action was taken against the perpetrators
because they must have been working either at the behest of those in power, or they were actual
government agents sent to cause chaos as part of the PNU strategy to keep power at all costs. I
hold this view because if the perpetrators were ODM leaders, members or supporters, I would
have expected Mr. Kibaki to have charged and prosecuted the perpetrators with alacrity as an
example to others, and also in order to undermine ODM’s campaign. Moreover, my view is that
legally, practically and realistically, only the state had the mandate, power and the means to
arrest, charge and prosecute those committing crimes against innocent civilians. In addition, only
the government and state agencies had the responsibility and ability to provide security to, and to
protect, all Kenyans against these kinds of criminal violence.
But even more significantly, I do not recall hearing of, or reading about, any allegations that
William Ruto was involved in, or responsible for, these acts of violence that were actually
occurring all over the country and were targeting members of many ethnic communities, from
Western Province, Rift Valley, Coast, and Nairobi Provinces. In other words, there was a general
and pervasive feeling of insecurity all over the country, as there had always been, historically,
during each election cycle since 1992.
I also remember attending media briefs at the offices of the Steadman Group Research
Company on Riverside Drive in Nairobi; addressing press conferences in the compound of
Orange House, Nairobi; and accompanying Dr. Amukowa Anangwe, Dr. Joseph Misoi and Tony
Cege/Chege to media briefings by the ECK at the KICC, Nairobi. Twice, I recall appearing in
both electronic and print media as having confronted the Steadman Group with questions
challenging their research methodology, data collection and analysis, and opinion poll results just
days before the 2007 elections. Once, I was also reported in the media challenging the then ECK
Chairperson, Samuel Kivuitu, regarding the ECK’s failure to address issues ODM had raised
about PNU’s rigging plans such as alleged irregular order of ballot papers; training of state
security personnel as PNU poll agents and threats to ODM from senior cabinet ministers.
87
“Just days before the elections, Kibaki created a number of districts, appointed six new
judges (two in the Court of Appeal and four in the High Court) and ordered a salary review for
judicial officers...More political leaflets with hate messages against ODM appeared in Kitale and
Mt. Kenya areas…” We interpreted these acts as emanating from desperation and amounted to
voter bribery and provocation.
Raila Odinga, 2013, Expert Bundles of Documents, Vol. 5, Tab 7, p. 777, para 1, lines 1-
6
On 22 December 2007, ODM parliamentary candidate James Orengo’s driver was killed at
Lunjera Primary School and one of his campaign vehicles burnt. Mr. Odinga writes: “With only
five days left to polling day, the violence was reaching a climax…On December 23, ODM wrote
to the ECK over anomalies in my constituency, Lang’ata, anomalies that ODM secretary-general
Nyong’o described as serious and requiring immediate action. It was crucial that I won the
Lang’ata parliamentary seat. I had widespread support and in the normal course of events could
not lose – but it was contrived that [if] I did lose, yet won the presidency, I would be disqualified
from leading the country…”
Raila Odinga, 2013, Expert Bundles of Documents, Vol. 5, Tab 7, p. 778, para 2; para 5,
lines 1-6
I also specifically recall media reports, and ODM’s questions, over allegations that PNU was
training members of the National Security Intelligence Service (NSIS) and Administration Police
officers at the military barracks located at Eastleigh, Nairobi, to be their poll agents. In fact, I
clearly recall television and newspaper reports by The Standard newspaper and its television
arm, Kenya Television Network (KTN) that showed clips of the National Youth Service
Vehicles (NYS) departing from the Eastleigh Airbase in Nairobi for various destinations. These
buses were alleged to have been carrying the security agents that had been trained as PNU
election agents. The media published the vehicles’ registration numbers. Subsequently, ODM
leaders demanded an explanation from the government on the mission of the vehicles’ occupants.
Indeed, a few days before December 27, 2007, many of these buses were physically attacked
by ODM supporters (civilians) and many of their occupants, who happened to be members of the
security forces, were killed, maimed, injured or chased away in Nyanza, parts of the Rift Valley,
88
and I believe even in Western and Coast Provinces. These were spontaneous attacks based on
published media reports that the occupants of the buses intended to rig the elections in favour of
Mr. Kibaki. Importantly, I do not recall reading about or hearing reports of the government
offering explanations as to why it had sent security forces disguised as ECK poll officials to
predominantly ODM areas.
In the weeks and days leading up to the voting day, the Raila Odinga for President Strategic
Team devised and implemented anti-rigging mechanisms that comprised 24-hour monitoring,
reporting and mobilisation of the public to thwart PNU rigging schemes. At the Rainbow House,
members were on a 24-hour shift. But significantly, there was no item or word about ethnic
mobilization, training and arming of ODM youth, or the unleashing of violence on innocent
civilians. All we were doing was to ensure that ODM supporters voted in large numbers for Raila
Odinga and ODM candidates and that the 2007 elections were free, fair and transparent. We
were also working round the clock to prevent rigging by Mr. Kibaki and his PNU party.
Ref: Pre and Polling Day Needs and Activities Team; Expert Bundles of Documents,
Vol. 2, Tab 24
Ref: ODM Activity Matrix; Expert Bundles of Documents, Vol. 2, Tab 25
I travelled to Apondo Primary School polling centre in Nyando Constituency, Nyanza

Province very early in the morning of Thursday, 27 December 2007, voted and flew back to
Nairobi. Upon landing at the Jomo Kenyatta International Airport before 1pm that day, I headed
straight to The Pentagon House, Nairobi, where some members of the various Raila for President
Presidential Secretariats were closely monitoring voting, counting and tallying of votes
throughout the country via television reports and through ODM’s presidential agents. Many of
these individuals had also travelled to their respective constituencies, voted and returned to The
Pentagon House, as did Raila Odinga. Most Pentagon members ran for parliamentary seats in
their regions and therefore stayed in their constituencies until the results were declared there.
I recall attending a meeting of Raila’s Transitional Team at the Palacina hotel three days
before December 27th. It was chaired by Raila and attended by Mudavadi, Ruto, Anyang’, Dr.
Sally Kosgei, Atul, Ager, Caroli, Wanyande and the late Eric Nyaseda. Until that day, I didn’t
89
know that such a group existed. About one month before elections, Prof. Oyugi, Ong’wen and I
had approached Mr. Odinga with the same idea, arguing that such a group should have been
constituted and working months before Election Day. We had suggested that since Dr. Kosgei
was a former head of the civil service and permanent secretary at the Office of the President who
had coordinated the transfer of power from KANU and Moi to NARC and Kibaki in 2002, she
was the best candidate to lead our transitional team. Aware that membership of such groups were
the sole prerogative of the presidential candidate, we didn’t suggest names, other than Dr.
Kosgei’s. However, to our astonishment, Mr. Odinga had informed us that we still had more than
enough time for transition.
On Friday, 28 December 2007, I recall arriving at The Pentagon House very early in the
morning, before 7am. I realized that the huge “Call-In” machine that Ogutu, Isahakiah and
Ng’eno had installed in the middle of the conference room purportedly for the receipt of ‘real-
time results’ wasn’t receiving any results. Instead of giving us real-time results from Mr.
Odinga’s and ODM’s agents, I realized that Ogutu was typing in figures that were being
streamed live by TV into the machine. By 10am, I had had enough and drove off to the KICC. I
stayed there briefly with The Pentagon Member Joseph Nyagah until about 11:45am when I
returned to The Pentagon House. I was feeling restless.
I followed the streaming of results on TV at The Pentagon House until shortly after 1pm. I
noticed that whereas both the NTV and KTN television stations were announcing consistent
figures for Raila and Kibaki – figures that cohered with some of the results ODM agents were
forwarding to some of us in Nairobi via mobile devises – and that showed Mr. Odinga leading by
a large margin, the Citizen TV station owned by S.K. Macharia, was announcing different, and
clearly contrived figures. Citizen TV figures placed Mr. Kibaki ahead most of the time, even in
areas where nearly everyone knew Mr. Odinga was more popular.
Caroli Omondi who had been monitoring the results with me accompanied me back to the
KICC. We left The Pentagon at around 2pm and drove together in my vehicle. We arrived at the
KICC at about 2:30pm. Caroli and I had “Local Observer” badges, which we used to access the
ECK media centre, which was being presided over by the ECK. Up to that point; there was
90
media consensus that Mr. Odinga was leading Kibaki by a wide margin. The media and many
people wrongly believed then that the media centre was the “ECK National Tallying Centre”
where the final Presidential election results would be validated, tallied and announced. By then,
nearly all parliamentary and civic election results had been released. I recall that ODM had
already won most parliamentary and civic seats. But ODM agents and I at the KICC that day
realized that presidential results from a number of constituencies in Nairobi, Central and Eastern
Provinces were not being announced.
At the ECK media hall with us were ODM chairman Henry Kosgey, secretary general Peter
Anyang’ Nyong’o, Pentagon Members Charity Ngilu and Joseph Nyagah, National Elections
Board chair Richard Otieno Kwach, Strategic Team member Bob Arunga, National Secretariat
member Dr. Misoi, Executive Director Janet Ong’era and other ODM officials seated right in the
middle of the front row, chatting animatedly. An ODM team tabulating results was at the back of
the hall.
Earlier that evening, Mr. Kivuitu had addressed the media and the gathering agents
intermittently. He erratically released results that first showed Mr. Odinga ahead of Mr. Kibaki
by more than one million votes before disappearing from the hall. Other ECK commissioners
would appear erratically and intermittently to announce results that were different from those
that the ODM agents had forwarded to us from the constituency tallying centres. ODM agents
and I made lots of noise, demanding that the presidential results be announced. We also noticed
that some of the results Kivuitu had announced were not on Form 16A and 17As, but on
computer printouts. This was highly irregular as official legal results must be filled on Form
16As and 17As and signed by the respective constituency returning officers. In fact, the law
required that those returning officers had to deliver the results in person to the Presidential
Election Returning Officer who was Mr. Kivuitu. Yet I recall that this was not happening. But
Mr. Odinga was still far ahead. Suddenly, at some point, results from Central Province and other
Kibaki strongholds like Meru stopped being released. We immediately knew something sinister
was afoot.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5 Tab 7, p. 790, paras 4 &
5
91
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab 5, p. 199, para 1,
p. 200, para 11
At some point later that evening, I confronted the security officers that were guarding the
entrance to the ‘National ECK Tallying Centre’ on the second floor of the KICC but who were
apparently under instructions (as they told me) not to allow any ODM agent or official to enter.
And as I stood outside the main entrance leading into that room, I witnessed senior members of
the PNU like former justice minister Martha Karua and Amos Kimunya, and ODM-K’s Mutula
Kilonzo entering and leaving the room. There were also all kinds of people entering and leaving
with hand bags, brief cases, et cetera. I did not know who those people were, what they were
carrying or what they had gone inside to do. But no ODM official was allowed to enter that
room. I had reasonable suspicion that it was in that room that presidential election results were
being manipulated in favour of Mr. Kibaki.
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab 5, p. 201
Although I don’t recall finding Mr. Ruto at the KICC when I arrived there in the afternoon of
December 28, 2007, I recall being with him, James Orengo, Charity Ngilu and Joseph Nyagah
later that evening. For the most part, we just sat there eagerly waiting for the ECK
commissioners to come down and announce the results, which they did, intermittently, and
mostly announcing parliamentary and civic results which had already been declared at the
constituency level and that had been repeatedly reported by the media and therefore were well
known to all the parties involved. However, there were occasions when ODM and PNU agents
were engaged in intense shouting at each other. Other times the agents excoriated ECK officials,
trying to pile pressure on them to either release the results or explain why that could not be done.
I remember that there was great tension and anxiety both inside the media centre, which was now
completely surrounded by heavily armed police officers, and according to media reports,
widespread among the population throughout the country.
We (the ODM team) kept vigil at the KICC until about 1am the following day. We
subsequently left the media hall. Mr. Kwach and I stayed behind for sometime before I returned
home, ate, took a shower, slept for about two hours, and returned to the KICC by 4:30am. I am
not sure when Caroli, Orengo, Ruto, Ngilu, Nyagah, Kosgey or the other officials left or went to.
92
On Saturday 29 December 2007, the KICC was completely surrounded by heavily armed
security officers from the regular police, administration police and the General Service Unit. I
recall seeing other heavily armed men in strange uniforms, shields, facial covers, red hard hats,
and knee pads. Media reports and contacts confirmed that there were similar deployments in
Nyanza, Western, Coast and Rift Valley Provinces. By then Uhuru Park was also cordoned off
by thousands of similarly attired and armed security forces. We also heard reports, which I could
not confirm, that large contingents of Ugandan military had crossed the border and had joined
their Kenyan security counterparts in unleashing terror in parts of Nyanza, Western and Rift
Valley provinces.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5 Tab 7, p. 791, para 4, p.
792, para 2
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab 5, p. 203, paras
3 & 4, p. 204, para 2
Inside the media centre, things were becoming more volatile. First, there were more armed
and menacing police officers than civilians inside the hall. In my estimation, they overpowered
us three to one. Second, I noticed that there were very few PNU top leaders present. These were:
Martha Karua, Beth Mugo, Amos Kimunya, Josephine Ojiambo and George Nyamweya. I also
remember seeing Kivutha Kibwana, Mutula Kilonzo, Njeru Githae, George Thuo, Raphael Tuju
and Uhuru Kenyatta come and go. Third, ODM agents, youth, observers and even some
members of the media continued to agitatedly and consistently demand results. Suddenly, just
before 3pm, after we had waited for Kivuitu for hours, he came down with some ECK
commissioners and announced that Kibaki had overtaken Raila by more than 400,000 votes.
Curiously, the ECK started announcing presidential results from Central Province and other PNU
enclaves in Eastern and Rift Valley Provinces. On the ODM side, I was with Ruto, Ngilu,
Nyagah and Orengo. An ODM activist, George Ayugi, also known as “Mbuta” was also beside
me.
Ref: Miguna Miguna, 2012, Expert Bundles of Documents, Vol. 5, Tab 5, p. 203, para 4;
p. 204, para 2
93
That evening, after we realized that Mr. Kivuitu had been compromised to announce
doctored results, Ruto, Ngilu, Orengo, Ayugi and I made a lot of noise and demanded that Mr.
Kivuitu should stop announcing the results so that we could scrutinize them. Eventually, later
that night, Mr. Kivuitu relented to our demand that the presidential results be scrutinized before
the final tally was announced. M. Odinga nominated Orengo as his chief scrutinizer. He was
assisted by Dick Ogolla. However, for a brief moment that night, I also entered the National
Tallying Centre and observed documents all over the floors, tables and people entering data into
computers in what looked like a panic mode. Martha Karua was Orengo’s counterpart on the
PNU side. The scrutiny lasted the entire night. I did not return home that night. I spent it on the
couches on the second floor of the building.
At the end of the process early in the morning, Orengo reported to us that he had registered
his objection to the tallies and demanded that results from many constituencies in Central and
Eastern provinces be scrutinised further and retallied before final presidential results were
declared. Unfortunately, that did not happen. Meanwhile, we had gone back to the media centre
and continued making loud demands for the results not to be announced until the problems
Orengo had identified had been corrected. However, instead of acceding to the ODM demands,
the ECK commissioners retreated to an undisclosed location within the building. And Mr.
Odinga’s agents and other ODM leaders spent the entire day and evening at the KICC. We
would go down in groups for lunch or dinner at a restaurant called Tin Tin within the building.
Other times, we would wander around, in confusion and trauma.
That night, I slept at the KICC one more time. By then, there was palpable tension
throughout the country. But I was not watching TV and could not have known precise details of
reports as to what was happening in many parts of the country. Most of the information I
received about what was happening around the country was from my wife, family, members of
the Strategic Team and friends who were watching TV and listening to radios. I also watched TV
briefly from screens in the second floor lounge.
Very early on the morning of Sunday, 30 December 2007, I was back to the media centre
with Mr. Ruto, Ms. Ngilu, Mr. Nyagah, Mr. Orengo and other ODM officials and youth. We
94
knew that the elections had been rigged. By this time, the KICC was completely surrounded and
taken over by heavily armed security personnel. Along the streets outside, and around the Uhuru
Park, the heavily armed security personnel outnumbered civilians nearly five-to-one. They were
lined up, shoulder-to-shoulder, around the park. There were thousands more inside the park.
Everyone we looked, there were military and police trucks carrying heavily armed men.
I recall that the ODM leaders and I were still desperately hoping that Mr. Kivuitu would not
declare Mr. Kibaki the winner. Suddenly, many PNU and ODM-K leaders entered the media
centre. I saw Martha Karua, John Michuki, Kalonzo Musyoka, Mutula Kilonzo, Njeru Githae,
Raphael Tuju, Kivutha Kibwana, Beth Mugo, Uhuru Kenyatta and George Thuo. The ODM
team started making noise again. It was now about 8:30am. I had brief discussions with Mr.
Kimunya, who was sitting next to me, inside the media centre. I remember telling him that he
and other senior PNU politicians like Tuju should advise Kibaki to concede defeat and hand over
power to Raila on that day or else we would remove him from power by force because ODM
wouldn’t agree to have him extend his tenure by even one hour. Mr. Kibaki had been sworn in on
December 30, 2002. As such, constitutionally, December 30, 2007 was his last day in office.
After I had told Kimunya that, he whipped out his mobile telephone and dialled a number before
going outside the hall to speak.
Before long, all PNU and ODM-K leaders (Kalonzo Musyoka, Mutula Kilonzo, Beth Mugo,
Uhuru Kenyatta, Kivutha Kibwana, Njeru Githae, John Michuki, and Raphael Tuju) left the
media centre at about 9:30am. As they were leaving, Mr. Odinga was arriving at the KICC with
all other members of The Pentagon. Also accompanying them was Kipkemoi arap Kirui, a
parliamentary staff who had been seconded to the ECK. At the press conference Mr. Odinga had
inside the media centre, Kirui stated that he had witnessed massive rigging in Kibaki’s favour
and opted to spill the beans. Ruto, Ngilu, Orengo and Raila spoke before the heavily armed
police officers broke up the press conference, hitting ODM leaders with wooden batons and gun
buts. I watched in consternation as Mr. Balala was struck on the head and shoulders.
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, Vol. 5, Tab 5, pp. 204, 205,
207
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5 Tab 7, p. 793, para 4
95
As the mainly ODM leaders, agents and youth were pushed, shoved and baton whipped out
of the media centre, I over-heard the then US Ambassador to Kenya, Michael Ranneberger
telling the media outside the KICC grounds that he was appealing to Mr. Odinga and the entire
ODM to concede and have Mr. Kibaki govern. By then, the media was already reporting that
sporadic demonstrations and some violence had broken up in Nyanza, Rift Valley, Western,
Coast and parts of Nairobi. My view is that these were spontaneous reactions by civilians who
were angered and frustrated by the blatant electoral theft and the unfolding civilian coup that
Kibaki was perpetrating. Most of these protests were initially targeted at symbols of the
government or state.
By this time, ODM youth were demonstrating with placards and twigs, singing “No Raila,
No Peace!” all over the country. Heavy security forces shot at these mostly unarmed
demonstrators with live ammunition. The internal security minister, Mr. Michuki and the Police
Commissioner, Mag-Gen. Ali, had already given shoot to kill orders to the security forces. Roads
were barricaded and bon fires lit in many parts of the country. Meanwhile, there were media
reports that hundreds of civilians had already been shot dead in ODM zones. I heard reports that
the police were indiscriminately shooting at unarmed civilians.
From the KICC, Raila and the entire ODM team drove straight to The Pentagon House where
we held an emergency meeting to decide on the next course of action. By a majority decision, the
meeting resolved to have Mr. Odinga declared president. My recollection is that Mr. Odinga did
not object. The majority decision was that Mr. William Ole Ntimama would declare Mr. Odinga
president and announce a series of events that would culminate in his public swearing in at the
historic Uhuru Park in Nairobi in a few days. Mr. Salim Lone, Mr. Kibisu Kabatesi and I
prepared a statement that was to be read by Mr. Ntimama.
However, at about 3:45 pm, as soon as Ntimama began to read the prepared statement, the
lights went off. And as the media scrambled to switch on their backup generators, an
announcement was beamed live through all TV and radio stations. Mr. Michuki, the minister for
internal security, had imposed a total ban on live broadcasts. On hearing this (even before
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receiving, reading and determining whether or not the order was legally binding), the local media
started packing up, ready to leave. Meanwhile, all the local TV stations – NTV, KTN and Citizen
went blank. It was now about 4:50 pm, when suddenly, there was an announcement on the KBC
TV that Mr. Kibaki would be sworn in at State House that same day, at about 6:00pm; everybody
released choice epithets at Kibaki. But we were crestfallen. We had been denied victory by force.
Soon thereafter, we saw Mr. Kivuitu and his ECK commissioners on KBC TV announcing
that Kibaki had won. Within about thirty minutes, we saw Kibaki being sworn in as the ‘duly
elected president’ at the State House, Nairobi. That was the only live media coverage from that
minute onwards.
Earlier that afternoon, as we had met at The Pentagon House, Mr. Odinga had informed us
that S.K. Macharia who owned Citizen TV station that had all along been announcing wrong
presidential election results confided in him that morning that he [Macharia] was privy to, and
was part of, a team of PNU mandarins who had been manipulating the results in Mr. Kibaki’s
favour at a secret location. According to Mr. Odinga, S.K. Macharia had “congratulated” him for
winning the elections but quickly told him that the bad news was that Kibaki would be sworn in
that day. PNU through the then Presidential Press Service would later release results showing
Kibaki with 4,584,721 and Raila with 4,352,993, even before the ECK released their
manipulated tallies that evening. Interestingly, the government tallies were exactly like the ones
ECK later announced. We then knew that the rigging had been massive, coordinated and
synchronized. Needless to say, within minutes of the bizarre announcement, we watched Mr.
Kivuitu handing over the “victory certificate” to Kibaki at the State House lawn in front of an
assembled but jumbled group of PNU boys and girls, just minutes before Kibaki was sworn in,
by the then Chief Justice Evans Gicheru and the High Court Registrar.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5 Tab 7, p. 795, para 2, p.
796, paras 2 & 3
As this was going on, Kenya was already on fire.
Subsequently, ODM leaders held numerous meetings at both The Pentagon House and the
Orange House. Members of The Pentagon Technical Team and I attended virtually all these
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meetings. However, The Pentagon House meetings were still restricted. Mr. Odinga chaired
nearly all the meetings there, which were attended only by The Pentagon members, ODM
national leaders like the chairman, secretary general, treasurer, organizing secretary and a few
individuals like Orengo and Dr. Sally Kosgey who held no formal party positions. Meetings at
the Orange House were attended by The Pentagon members, ODM national leaders, NEC
members and both The Pentagon Technical Team and the party strategic team. Members of The
Pentagon Technical Team held separate meetings within the same building, and upon invitation,
attended Pentagon meetings as well.
Later that night, The Pentagon Technical Team did a SWOT (strengths, weaknesses,
opportunities and threats) analysis of the prevailing and evolving situation. Members
unanimously resolved that Mr. Kibaki’s civilian coup could only be dealt with through: (a)
popular and peaceful mass action consisting of demonstrations and civil disobedience throughout
the country. The idea was to cripple Kibaki’s illegitimate government, make the country
ungovernable so that he could be forced to cede power or to agree to a negotiated settlement; (b)
Raila Odinga declaring himself president and for him to be sworn in at Uhuru Park within hours;
(c) a diplomatic charm offensive to regional, continental and international countries and bodies;
(d) to engage and seek the support of the media and the civil society to ODM’s cause; and (d) to
petition the International Criminal Court (ICC) to start investigating the Kibaki administration
for gross human rights violations and crimes against humanity which were occurring throughout
the country.
We were aware of how peaceful but sustained mass action had been used effectively in
Ukraine and The Philippines. So, we made strong arguments about it to the party leadership who
agreed with our analysis. It was now common knowledge in Kenya that ODM supporters were
being massacred all over the country by security forces and armed Mungiki militia. We received
reliable reports that the security forces were arming and offering protection to Mungiki militia in
parts of Nairobi like Mathare and Kibera as well as in Nakuru, Naivasha and Eldoret.
I recall hearing that thousands of innocent Luo, Luhya and Kalenjin civilians were being
killed in and around those and other urban centres. I also recall watching barbaric scenes on TV
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of Luos and Luhyas being forcefully removed from commuter and private vehicles along
Nairobi-Kisumu highway and being brutally butchered and mutilated as armed police watched.
The scenes were barbaric. There were many beheaded bodies, chopped up torsos, penile
amputations and mutilations using crude objects like broken bottles, knives and machetes on
roads and highways, mostly of Luos. Astonishingly, some of these barbaric crimes were being
committed in broad day light, in the presence of live TV and uniformed and armed police
officers, yet they were neither stopped nor were any of the perpetrators arrested.
We also started receiving reports that many civilians in ODM areas had been killed even in
their homes or when they were simply walking home. As well, thousands of mainly Luos and
Luhyas were stranded, trapped or being massacred in Central Province and other areas in the Rift
Valley where the Kikuyu were the majority like Nakuru and Naivasha.
In retaliation, ODM youth in Kibera, Nairobi, had uprooted the railway line connecting
Kenya and Uganda, thereby preventing Ugandan goods from reaching their destination. We
believed, and it soon became apparent, that we were facing a major humanitarian crisis and
needed international intervention.
Meanwhile, ODM leaders in Nairobi were still making several daily attempts at accessing
Uhuru Park so that we could have a rally but we were tear-gassed and baton whipped and our
processions disrupted. One such processing started at around 9am on 3 January 2008. It was led
by Musalia Mudavadi, William Ruto, Joseph Nyagah, Anyang’ Nyong’o and Omingo Magara. I
was present when Mudavadi and Ruto addressed the big gathering near the Department of
Defence headquarters and called off the match in order to avoid a blood-bath by heavily armed
security forces that had refused to allow our peaceful procession to continue to Uhuru Park. I
was also present when we made several attempts to access Uhuru Park from the Serena Hotel in
Nairobi and another one from the Central Business District.
On or about January 1, 2008, I read and saw TV reports of the burning to death of 17
innocent women, children and men, with 11 dying on the way to hospital and 54 injured in a
church building in Eldoret town. Soon, Kiambaa Church became the face of the 2007-2008 post-
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election violence. I would later learn that all the victims were Kikuyu while those accused of
having carried out this most brutal criminal act were Kalenjin.
Tragically, the Kiambaa Church slaughter wasn’t a one-off. The scene closely resembled
another barbaric incident in Naivasha where a Luo man had lost his entire family of about nine;
two wives and their children after they had been attacked by Kikuyu youth and the Mungiki
militia. Media reports later indicated that there had been dozens of people burnt to death alive in
both incidents. In the Kiambaa Church case, the Kalenjin youth had allegedly poured petrol and
other inflammatory material and blocked exits as the church burnt. Similarly, in the Naivasha
case, all the doors to the house had been locked from outside as marauding gangs torched it and
stayed outside to ensure that nobody escaped. In both cases, the attackers were armed while the
victims were unarmed civilians.
I recall discussing the Kiambaa Church incident with Raila Odinga later that month. He told
me that he had received reports that the place burnt down after gas cylinders exploded
accidentally as the women who were sheltering there tried to prepare meals. Unfortunately, with
accusations and counter accusations flying all over, I have not been able to ascertain what
actually happened. Needless to say, the loss of life at the Kiambaa Church was as regrettable as
those that happened in other parts of the country, including in Naivasha, Nakuru, Kisumu, et
cetera. All those victims did not deserve to die. The perpetrators deserve to be punished to the
full extent of the law.
However, it would be unjust and a double tragedy if, in anger and repulsion, we condemned
an innocent man for crimes committed by others. I have distinct and independent recollection
that Mr. Ruto was with the rest of us in Nairobi when the Kiambaa Church burnt down. I might
not have been with Mr. Ruto at the precise moment this happened. However, I recall attending
numerous meetings with him before and shortly after this tragedy.
By this time, thousands of innocent civilians were already either dead or seriously injured
either by police or through civilian-to-civilian violence. According reports by the media and
humanitarian organisations, more than 600,000 civilians had been displaced throughout the
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country by the second week of the violence erupting. Thousands of those civilians had even
escaped and sought refuge in Uganda. Many of the dead, injured and internally displaced were
Luos, Luhyas, Kikuyus, Kalenjins and Kisiis. It is reasonable to assume that the Kikuyu and
Kisii victims had been attacked by ODM supporters whereas the Luos, Luhyas and Kalenjins
who had been killed, injured or displaced were victims of police, Mungiki militia and Kikuyu
youth. In other words, there were hundreds of thousands of innocent victims on both sides of the
political divide.
During the month of January 2008, I was among the organisers of two peaceful ODM
gatherings at the All Saints Cathedral next to Uhuru Park and the Holy Family Basilica church
behind the City Hall, Nairobi, where we distributed white handkerchiefs and hand bands, water
and bread to unarmed civilians, sung hymns, recited liberation poetry, and condemned Kibaki for
executing a brutal civilian coup and undermining the democratic and popular will of the people.
Another person who took part was Mr. Orengo and Mr. Joe Ager. However, each evening, we
would attend meetings at The Pentagon House, review the day’s events and decide on the next
course of action.
I recall working together with Lone, Kabatesi and Caroli to prepare an aide memoir to the
African Union (“AU”) during their session in Addis Ababa, Ethiopia. Mr. Odinga sent a two-
man delegation comprising Prof. Peter Anyang’ Nyong’o and Ambassador Richard Okwaro to
brief the Peace and Security Council of the AU on the mediation process so that ODM’s views
on the crisis would form part of the report to the Tenth Ordinary Session of the AU scheduled for
January 31st to February 2nd, 2008 in Addis Ababa. The ODM delegation was also tasked with
seeking recognition for Raila Odinga as the legitimately elected president of Kenya.
We had annexed reports by The European Union, The Commonwealth, The East African
Community, the Independent Local Election Observers and the Audit Report by the ODM, all of
which had concluded that what had happened in Kenya was a flagrant electoral fraud with
respect to the Kenyan presidential election of 2007. Even the Law Society of Kenya had released
a statement rejecting Mr. Kibaki’s ‘re-election.’ Unfortunately, the ODM delegation was not
given a hearing at the AU session. It was apparent to us that the AU was standing in solidarity
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with one of its own even when they knew what had occurred, and even when most of their
member states were themselves unwilling to offer formal recognition for the illegitimate
government.
Shortly thereafter, Mr. Odinga sent Joseph Nyagah to Tanzania to lobby President Jakaya
Kikwete to support Odinga’s and ODM’s cause. By then, I believe only Uganda, Zimbabwe and
the USA had recognized Kibaki’s ‘re-election.’ The US government would subsequently, hastily
withdraw their earlier recognition. The consequence was that Mr. Kibaki was isolated regionally,
continentally and internationally. He could not even attend a church service in Nairobi.
Because Mr. Odinga had received overwhelming support in Nyanza, Western, Rift Valley,
Coast, North Eastern and Nairobi Provinces, Kibaki’s support base had been reduced to the
Mount Kenya Region, which essentially meant his Kikuyu ethnic group and their
demographically smaller cousins like the Meru, Embu and Mbeere. This was essentially Central
Province and parts of Eastern Province. In 2007, most Kamba had supported Kalonzo Musyoka.
This illustration is important as a demonstration that Mwai Kibaki could not have won the 2007
presidential election.
After about one week after Kibaki’s irregular swearing in, there was a widely reported
statement in the media that Najib Balala had threatened Kibaki that if he refused to resign, ODM
could transform his political base to “a Lesotho.” In other words, Balala was saying that with the
entire country except the Mt. Kenya region supporting Raila Odinga and ODM, Kibaki should
feel surrounded and landlocked like Lesotho. Whereas some people might have reacted to this
statement with alarm, in the context of the power games after the 2007 elections, this was
considered by many as constituting legitimate political rhetoric and psychological warfare. Even
though I was not present when the strategy, tactics, timing and contents of the statement were
discussed – my friend Mutakha Kangu was the author – I had no serious problems with it
because whereas Kibaki had and was abusing all the instruments of coercion, ODM only had
press releases and rhetorical bluster left at its disposal. ODM was not calling for civil war. It was
not calling for a forceful or violent overthrow of the government. In good conscience, it would
have been unfair to deny them the opportunity to issue paper tiger threats as well.
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But more significantly, it was not Mr. Ruto who issued that statement. In fact, throughout the
crisis, I never once heard Mr. Ruto utter what could remotely be termed a threat of force or
violence. My recollection is that even all the mass action appeals were often issued by the ODM
secretary general Prof. Peter Anyang’ Nyong’o. On occasion, however, Mr. Odinga and Mr.
Mudavadi also did. Yet, ironically, most people who have claimed to know something about this
period, and who have blamed ODM for the post-election violence, have tended to blame Mr.
Ruto.
During this period, ODM constituted different teams to deal with the most immediate
political and humanitarian crisis. The humanitarian team was made up of Prof. Margaret Kamar,
Elizabeth Ongoro, Dr. Sally Kosgey and Lorna Laboso (before she and Mr. Kones died in a
mysterious helicopter crash). There was a team formed to audit the presidential results headed by
Dalmas Otieno. This audit team was made up of, among others, Jonathan Ng’eno, James Ogundo
and Sylvester Kasuku.
I am also aware that during the same period, ODM, through James Orengo indicated that it
had sent a petition to the ICC, requesting it to initiate investigations against President Kibaki’s
government for crimes against humanity that we believed the security forces and the Mungiki
militia had committed against ODM supporters. And in reaction to ODM’s public declaration
that it was seeking the ICC involvement, Martha Karua, then Kibaki’s justice minister, also
announced that she would write to the ICC, reporting crimes she alleged ODM had committed
against PNU supporters. I believe that these tit-for-tat events are the ones that culminated in Mr.
Ruto being blamed for the post-election violence. It is common knowledge in Kenya that Mr.
Ruto and Ms. Karua have never seen eye-to-eye, both personally and politically.
In addition, some members of The Pentagon Technical Team made up of Prof. Edward
Oyugi, Prof. Jacqueline Oduol and Oduor Ong’wen met Mr. Odinga in my presence in early
January 2008, and were authorized to start collecting money for the purpose of acquiring
firearms in order to have these issued to some ODM youth in Kibera, Nairobi for self defence.
They gave AK-47 a Luo code name: ‘Ajwang’ Nyar Kadem ma ja higa piero ang’wen gi
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abiriyo,’ (Ajwang’ daughter of Kadem aged 47). Although I did not directly participate in the
fundraising because I had just recently relocated to Kenya and was not privy to ODM’s actual
sources of funds or where weapons could be acquired from, I later heard unconfirmed reports
that ‘our youth had managed to repulse the police in Kibera’ in one engagement during this
period.
However, Mr. Ruto and other Pentagon members did not attend this secret meeting. As well,
the team was made up of very few trusted Odinga loyalists who also happened to have been all
Luos. But there were other meetings chaired by Mr. Odinga at The Pentagon House and attended
by ODM leaders including Nyong’o, Kosgey, Ruto, Nyagah, Balala and Mudavadi, which were
attended by some retired military officers like Gen. John Koech, who was also an ODM official.
However, I am not privy to what transpired during those meetings. I know, however, that
someone like John Koech and Jackson Kibor were closer and more loyal to Mr. Odinga than to
Mr. Ruto. In fact, from 2009, Gen. (Rtd.) Koech would fallout with Ruto completely over the
ownership of a political party, the United Democratic Front (“UDF”). In discussions I had with
Koech later, he confided in me that he believed it was Mr. Ruto who had allegedly ‘rigged’ him
out during the 2007 ODM nominations. He further claimed also that Mr. Ruto had allegedly
prevented him from becoming a member of parliament during the bi-election that was held after
area MP, David Kimutai Too, had been assassinated in 2008.
We also had a team dealing with media and diplomatic outreach. I attended meetings of this
team, which was made up of Nyagah, Sally Kosgei, Nyong’o, Orengo and Lone. On one
occasion, I even went with Najib Balala, Mudavadi and Orengo to a meeting at the residence of
the Canadian High Commissioner in Nairobi. I was also having regular consultations with the
American and the Dutch ambassadors in Nairobi. I held discussions with the head of the
European Mission in Nairobi over the crisis. I recall giving interviews with the Voice of America
(VOA), the British Broadcasting Corporation (BBC), Canadian Broadcasting Corporation
(CBC), Al-Jazeera TV and Radio France International about the post-election crisis.
Ref: Miguna Miguna, 2012; Expert Bundles of Documents, pp. 210, 211, 212, 213, 214
& 215
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I also recall other diplomatic initiatives that were being made to resolve the crisis. Mr.
Odinga had telephone discussions with world leaders on a regular basis. They discussed ‘viable
options’ for resolving the post-election crisis, dealing with the humanitarian crisis, and finding
long-lasting solutions to historical, systemic and underlying root causes of the crisis. These were
issues of the completion of the constitutional review process; addressing issues of historical
injustices such as inequality and inequity; dealing with the high unemployment especially of the
youth; dealing with the land tenure system and land grabbing; and addressing institutional
reforms such as reforms to the electoral system, the judiciary, the civil service and the police,
among others. Discussions were also held on how to hold judicial inquiries into the presidential
elections and the post-election violence.
Different names were being bandied around of potential mediators. The name of Cyril
Ramaphosa came up. ODM was interested in having him as mediator but the PNU strongly
objected, claiming that Ramaphosa was Raila’s friend. After that the former Ghanaian president
John Kufuor’s name was suggested. I remember preparing two mediation briefs for Raila and
The Pentagon Technical Team. Soon, Kufuor sent a letter indicating that as the chairman of the
AU, he wanted to explore ways of resolving the conflict. However, before Kufuor could visit,
Kibaki named a cabinet, with Kalonzo Musyoka as his vice-president. ODM was furious. It
issued statements condemning Kibaki’s action and calling on Kenyans and the international
community to reject the cabinet named.
Other eminent African and non-African personalities that visited Nairobi between January
and February 2008 were Archbishop Desmond Tutu, former Zambian President Kenneth
Kaunda, former Botswana’s president Masire, former Mozambican president Chisano, former
Tanzanian President Benjamin Mkapa, Lady Graça Machel, former United Nations Secretary
General Kofi Annan, and former US Secretary of State Condoleezza Rice. Apart from Rice, John
Kufuor and Annan, all the other personalities visited The Pentagon and held consultations with
Raila Odinga, his Pentagon colleagues and a section of ODM National Leaders.
In any event, Kufuor visited and held discussions with Mr. Kibaki at the State House,
Nairobi. I believe he met Raila at the Serena Hotel. Mr. Odinga explained to me that Kufuor had
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argued that visiting The Pentagon would have been misinterpreted as endorsement of Mr.
Odinga. But The Pentagon Technical Team was concerned about Kufuor’s approach. I got the
impression that Kufuor was treating Kibaki as a legitimate president when ODM was insisting
that Kibaki should have been treated as merely the leader of PNU. PNU had won less than 50
parliamentary seats whereas ODM had about 106 MPs. In other words, ODM felt that Kufuor
should have made it clear to Kibaki that mediation could only proceed once he disbanded his
cabinet and renounced his swearing in. I felt that a proper mediation needed a neutral who could
treat both parties as equals.
Moreover, while PNU insisted that Kufuor had only visited Kenya to have a cup of tea with
Kibaki, ODM insisted that Kufuor’s trip was a mediation exercise. Anyway, soon, Kufuor
suggested the establishment of a Panel of Eminent African Personalities to be chaired by Kofi
Annan. That Panel was quickly set up and Annan arrived in Kenya with former Tanzanian
president Benjamin Mkapa and Lady Graça Machel. The mediation exercise subsequently
resulted in a power sharing agreement signed between Raila/ODM and Kibaki/PNU on 28
February 2008. Thus, peace was eventually restored in Kenya.
j) Mr. Ruto’s role, responsibilities, functions and conduct during the 2007 elections
Regarding Mr. Ruto’s role, responsibilities, functions and conduct during the 2007 elections,
I wish to make the following observations. Firstly, Ruto had no formal position, role or function
in ODM. Informally, however, as a member of The Pentagon, he, together with his other three
colleagues, Ngilu, Balala, and Nyagah, constituted the third level of power after Raila and
Mudavadi, respectively. It is imperative to note that Ruto was not the de facto leader of ODM;
Mr. Odinga was.
Secondly, Ruto’s responsibilities, like that of the other Pentagon members, were limited to
mobilization of resources for the presidential campaign, providing policy and operational
leadership to the presidential campaign during meetings and strategy sessions, attending and
addressing ODM rallies.
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And thirdly, as a candidate for parliament during the same elections, Mr. Ruto was required
and expected to mobilise voters to elect him and to vote for Mr. Odinga and other ODM
candidates both in the Rift Valley and in other parts of Kenya.
I believed then, and I continue to believe now, that in 2007, Mr. Odinga, whom the Kalenjin
adoringly referred to as “Arap Mibei,” [“Son of Mibei’] was more popular among Kalenjins than
Mr. Ruto was. In fact, many members of the Raila Odinga for President Strategic Team believed
that Ruto had only supported Mr. Odinga because he [Ruto] knew that Mr. Odinga was more
popular than him even among the Kalenjin and that his political survival vested in being
associated with Mr. Odinga. However, by January 2013, I believe Mr. Ruto had become
significantly more influential and popular among the Kalenjin, specifically, and Rift Valley
communities, in general, to the extent that from then onwards, he would occupy the place of a de
facto ‘king’ (like Mr. Odinga had become among the Luo, for instance) among these
communities. But that, in my assessment, was not until 2013.
My recollection of Ruto’s conduct during and after the 2007 elections was that of a restless
but peaceful, dedicated, charismatic, articulate and indefatigable campaigner who clearly
marketed and promoted the policies and programmes of the ODM. He was an able assistant and
supporter to Raila Odinga. He was full of energy and charisma. Although he was not the ODM
deputy party leader, he campaigned, together with the other Pentagon leaders, in harmony. He
was a team player. My opinion is that by virtue of being the only ODM Pentagon leader from the
Rift Valley in 2007, Mr. Ruto was considered by many as ‘ODM’s main point man’ in the Rift
Valley, the same way Mr. Mudavadi was in Western Province, Mr. Balala was in Coast
Province, and both Mr. Nyagah and Mrs. Ngilu were in parts of Eastern Province.
I do not recall any incident when anybody complained that Mr. Ruto had done or said
anything that was contrary to the ODM Constitution, manifesto and campaign platform.
However, I have heard and read about the charges against Mr. Ruto before this Court. I have also
spent hours thinking about the post-election violence. I have been trying to find explanation on
what happened.
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While I cannot claim to know Mr. Ruto’s precise minute-by-minute whereabouts or activities
during and after the 2007 elections other than what I have written here, I know that like almost
all ODM leaders, Mr. Ruto was confident that Raila would win the 2007 elections. He had
campaigned vigorously for Raila and ODM. Immediately after December 27, 2007, he had
rushed to Nairobi from Eldoret North constituency where he had gone to vote for himself and
was with me for days at the KICC. Like me, I believe that he had no reason to have planned for
violence. However, like most ODM leaders and supporters, Mr. Ruto must have felt outrage
when Kibaki decided to execute a civilian coup. I observed distress on his face when we were at
the ECK’s media centre from December 28-30, 2007. What I saw was not the face of a happy
man plotting ethnic cleansing against the Kikuyu. I saw the anguished face of a traumatised man;
a man who was as determined to do everything legal and democratic to overturn Kibaki’s
civilian coup as I was.
I have reason to believe that the Kalenjin youth - like the Maasai, Turkana, Pokot, Saboat,
Samburu or other pastoralist youth – get trained on how to use traditional weapons like bows,
arrows and spears, during their rights of passage like circumcision rituals. These trainings are
conducted for defensive purposes, mostly to protect their livestock against raiders from other
communities. However, during a crisis like the one we faced after the December 27, 2007
elections, these youth – like the Luo, the Luhya and Kikuyu youth – must have quickly gotten
hold of their traditional weapons and confronted those they mistakenly perceived as the ones
who had either executed the civilian coup, or in whose name, and for whose benefit, these youth
believed the coup had been executed.
I do not have any reason to believe that the Kalenjin youth had been trained, mobilized and
armed beforehand, and/or specifically to unleash terror on the Kikuyu during the 2007-2008
post-election conflict. I do not believe that Mr. Ruto did so. If that had been the case, why had
they [the youth] waited (and I am not admitting they did) until after President Kibaki had
committed the civilian coup before erupting in violence? I actually believe that had the youth
been trained, armed and received instructions to unleash violence against the Kikuyu beforehand,
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tens of thousands of innocent Kikuyu civilians would have perished in the Eldoret area alone
during the conflict.
Before reaching the conclusion that the Kalenjin youth were trained, armed and commanded
to commit the alleged crimes, it might be necessary to establish where the training camps were,
who were responsible for recruitment and when this happened, who were the trainers, where did
the weapons come from (because it would not have been easy to sustain any fight with members
of the security forces without supplies), who fed them and where the food, clothes and other
basic necessities any group of young people in a military formation would have needed, et
cetera, came from, and why and how the security intelligence and forces did not discover of their
plans and operations in advance.
I am not in any way suggesting that even one life lost in the manner we lost more about 1,300
civilians’ lives during the 2007-2008 post-election violence is justified; far from it. All I am
saying is that the violence was and must have been spontaneous, unplanned and was in reaction
to what Mr. Kibaki and his ethnic elite or cabal like John Michuki and Njenga Karume had
unleashed on Kenyans, otherwise, the casualty numbers would have been much higher.
In addition, it is common knowledge among Kenyans that Kikuyus were not the only victims
of the post-election violence. Many Kalenjin youth were killed either by the security forces or by
armed Kikuyu militia. I have knowledge and recollection of innocent Kisii civilians that were
viciously attacked, killed, seriously injured, dispossessed of their properties, before being
internally displaced from Kisumu and many parts of the Rift Valley. If the allegations against
Mr. Ruto were to be believed, then logically, it would be necessary to also explain who targeted
the Kisii and why. Were their attackers also trained and instructed beforehand; if so, why?
Further, it would be important to investigate how the Kisii were targeted during the same period
yet I have not heard or seen any credible allegations suggesting that there had been hate
propaganda spread against them before or during the post-election violence. In other words, who
had preached violence against the Kisii, trained and armed youth (and they were not just
Kalenjin youth) with instructions to target the Kisii? Why were non-complying Kalenjins, Luos
and Luhyas also victimized by vigilantes from their own communities?
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When the Luos, Luhyas and Kalenjins got attacked, killed and were internally displaced in
other parts of Kenya, was this also as a result of prior planning, issuance of hate speeches and the
arming of perpetrators before the 2007-2008 elections? If so, what did the government and
various state security organs (especially the national security intelligence and the police) know
about these; when did they know about them; how did they know about them; and what, if
anything, did they do about such threats to innocent citizens?
Moreover, I have not seen, heard or read about any credible evidence or facts on where,
when and how the Kalenjin youth had allegedly been trained before they unleashed violence on
innocent Kikuyu civilians. I have not seen evidence on the supply chain – of both youth and
weapons – and why the usually alert Kenyan intelligence and security services were unable to
detect, prevent or thwart their activities. And even if they were able to effectively conceal their
conspiracies, why the Kenyan government has not been able to arrest, try and convict the
perpetrators up to today. Significantly, I have not seen, read or heard of any credible evidence
connecting Mr. Ruto to the alleged crimes. In any event, I cannot understand why Ruto should be
the sacrificial lamb for what I believe was a fundamental failure and/or complicity by the
Government of Kenya.
For me, these are not rhetorical questions; they go to the core and the root of the conundrum.
In my previous – and numerous – discussions with senior officers from the ICC, Mr. Rogier
Emeric and Dirk, I honestly expressed my surprise at the manner, extent and apparent discipline
that, to an observer like me, was demonstrated by the ODM youth in the Rift Valley during the
crisis. I expressed surprise at their bravery and staying power when faced with many heavily-
armed, and apparently well-trained, security forces. To be completely honest, I even expressed
some admiration at the way the Kalenjin youth, in particular, were able to repulse both the
Mungiki and members of the security forces who seemed to be killing perceived ODM
supporters from the Luo and Luhya communities for sport. I believe that the case of the security
forces massacring innocent civilians in Kisumu, Naivasha, Nakuru and Kibera is well
documented. Some of these atrocities were captured on live television during the crisis. Yet,
despite the power and institutional structure of the Kenyan government and security
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establishment being well known, none of the people who were most responsible for those
atrocities are facing charges before this Honourable Court. Why? Why would a person like Mr.
Ruto who was then only an MP-elect for Eldoret North constituency, and a member of the
opposition, be charged in court, and not those perpetrators who had power, means, weapons and
opportunity – and did massacre lots of innocent Kenya civilians – not be in the dock?
Understandably, none of the perpetrators have faced charges before the Kenyan courts. I say
understandable because they were the ones with power, authority and coercive means during that
period. No reasonable person expected them to arrest, charge and prosecute themselves. Nor did
any reasonable person expect them to obtain, preserve and utilize incriminating evidence against
themselves. To have expected that would have been extremely naïve. However, it is not easy for
me to comprehend why none of them is charged before this court, especially after the Office of
the Prosecutor publicly and frequently promised that he would use Kenya as an example to the
world.
I believe that even though we have only heard about the Kalenjin youth who committed
atrocities, I have also heard stories of brave and heroic Kalenjin youth who saved innocent and
unarmed Luos and Luhyas that would have been killed in Eldoret, Kericho, Nakuru and many
parts of the Rift Valley. Had these people not been protected from harm by the Kalenjin youth, I
am sure that we would not now be talking about 1,300 victims of post-election violence; the
number would have been in tens of thousands.
I also feel extremely offended when I hear a litany of allegations against the Kalenjin youth,
yet most Kenyans know that the crimes committed by Kibaki’s security forces were more and
most brutal. Many Kenyans, including me, suspect that the hundreds, and possibly thousands, of
youth who disappeared during the post-election violence, must have been buried in secret mass
graves by members of the Kenyan security forces. The United Nations Special Rapporteur,
Professor Philip Alston told us sometime back that members of the Kenyan security forces have
a record of doing so in the Mount Elgon area. Yet, painfully, none of them, or their superiors,
have been called to account for their atrocities and crimes against humanity. Is it because
members of Kibaki’s security forces declined to be interviewed by the ICC investigators? Is it
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because they used their power and positions of influence to destroy and/or hide evidence? Or
could it simply be a case of shoddy investigations by the Office of the ICC Prosecutor. I don’t
know, and we may never know. But it is quite a painful experience for me.
PART VI
6. Proposition:
“36. In terms of organization, on top there is the Party Patron or the Party Flag bearer
who is the presidential candidate. In an unofficial way and not placed in an official chart,
the Pentagon should be placed next to the flag bearer and also on the top. De facto the
Pentagon members had equivalent power to the flag bearer and RAILA could not do
anything without their approval because he needed their support. However the other
members could take decisions without seeking approval or informing RAILA, if they
thought it was not necessary. The rule was that each leader was responsible for his or
her area.”
Comments and observations on the above proposition
This is an inaccurate proposition. Firstly, I’m not sure which party structure and during
what specific period of time the statement is attempting to describe as Raila Odinga has belonged
to many parties and ‘coalitions’ since 1992, and in most of them, he has been the de facto party
leader. In 1992 Raila Odinga was a member of the Forum for Restoration for Democracy
(“Ford”). When Ford splintered, Mr. Odinga moved to Ford-Kenya. Later, Mr. Odinga disagreed
with the Ford-Kenya chairman, Michael Kijana Wamalwa, and bought the National
Development Party (“NDP”) from Stephen Omondi Oludhe.
Mr. Odinga joined KANU shortly after the 1997 elections. He led his party, the NDP,
into a brief period of ‘cooperation’ before merging it with KANU. After the merger, NDP was
dissolved. The merged KANU and NDP became New KANU. Mr. Odinga then became New
KANU’s secretary general until he fell out with Moi in 2002. Shortly after that, Mr. Odinga
purchased the Liberal Democratic Party (“LDP”). In December 2002 Mr. Odinga led the LDP,
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then calling itself the ‘Rainbow Coalition,’ into an arrangement with Kibaki’s National Party of
Kenya (“NAK”). The two units became the National Rainbow Coalition (“NARC”), which won
the 2002 elections, with Mr. Kibaki as president.
However, in 2005, Raila led the LDP out of NARC. During the 2005 constitutional
referendum, which the Odinga group won, LDP lost its identity to the Orange Democratic
Movement (“ODM”). In December 2005, Milton Mugambi Imanyara registered the ODM. The
following year, Mr. Odinga and his colleagues registered a party they called ODM-Kenya.
However, Mr. Musyoka later ran away with ODM-K on August 14, 2007, leaving Mr. Odinga
without a party. About the same time, Mr. Imanyara handed over ODM to Mr. Odinga.
Subsequently, Mr. Odinga ran for president on an ODM ticket. In 1997, he had run for president
on an NDP ticket. In 2013, Mr. Odinga was both an ODM and the Coalition for Reforms and
Democracy (“CORD”) presidential candidate and party/coalition leader.
Therefore, asserting that Raila Odinga was “the Party Flag bearer” without clearly
spelling out the party (given the fact that he has been a flag bearer of three different
parties/coalitions during three different elections) would result in many erroneous assumptions.
As well, I do not recall, nor have I seen any reference to Mr. Odinga, as “the Party Patron” from
the literature I have reviewed, which includes Raila’s own autobiography published in 2013, The
Flame of Freedom. As well, my recollection is that Mr. Raila Odinga was the “patron” of the
Gor Mahia football team; not of the ODM party of Kenya in 2007, or ever.
Ref: Raila Odinga, 2013, supra
Be that as it may, because the second sentence (line 3) refers to the “Pentagon,” I assume
that the proposition refers to the general elections of 2007 when Raila Odinga ran for president
on an ODM party ticket, and when he was the ODM Party Leader, Presidential Candidate and
head of an informal ODM elections organ, ‘The Pentagon.’ However, I wish to underscore the
fact that during the 2007 elections, the ODM was not structured in the manner described in the
proposition above.
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Firstly, ODM has undergone three major restructurings since its formation: in September
2007; 2009; and the period leading up to the 2013 elections. In Part 5(g), “Structure and
organogram of ODM’s 2007 Leadership and Campaign” of this Expert Report, above, I have
attempted a detailed explanation of both the formal and the informal structure and organogram of
ODM. But I will add a few explanatory comments below. I have also sketched my understanding
of the de facto organogram of the ODM in 2007 at Tab 9 in Volume Five of the Expert Bundles
of Documents thereto. In order to avoid unnecessary repetition, I would humbly refer this
Honourable Court to that explanation and sketch.
At the apex of ODM in 2007 was the ‘The Party Leader’ who was also its presidential
candidate or flag bearer. During this period, Mr. Odinga was mostly referred to as ‘the Captain’
of ODM. His running mate, deputy party leader, and therefore his second in command, Musalia
Mudavadi, was referred to as ‘the Deputy Captain.’ To the best of my knowledge and
recollection, there was no position of ‘Patron’ either formally or informally, and I never heard
anyone call Mr. Odinga ‘patron.’
As the ODM Party Leader and Presidential Candidate, Raila was the ultimate decision
maker for ODM and his presidential campaign in 2007. Consequently, within ODM, Mr. Odinga
enjoyed unequalled power, authority and privileges. And in exercise, and as a demonstration, of
that power and authority, he unilaterally picked Mr. Mudavadi as his running mate and deputy
party leader. He could have picked anyone since there was no law, party constitution or policy
restricting his discretion on this and other matters. Similarly, it is Mr. Odinga who hand-picked
all members of The Pentagon. Therefore, the proposition above is illogical as it purports to vest
equal power on the leader and the nominees the leader appointed to their positions in the party.
To this moment, Raila Odinga holds – and has always held - absolute sway over the
ODM party. In fact, it is considered ‘common knowledge’ in Kenya that ‘Raila Odinga is ODM,
and ODM is Raila Odinga.’ This is true in terms of policy formulation and direction, strategic
development and execution, operational and leadership terms. Major decisions in ODM are
rarely made by the various party leaders or organs without Mr. Odinga’s input, consent,
concurrence or direction. Even the so-called semi autonomous party organs like the National
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Elections Board (“NEB”) or the National Executive Committee (“NEC”) or the ODM
Parliamentary Group (“PG”) usually do not make any major decisions without the express or
tacit approval of Mr. Odinga. This was particularly the case between October 2007 and February
28, 2008.
In fact, in 2007, Mr. Odinga ultimately decided on most of ODM candidates in national,
civic and in bi-elections. He even held sway on who was to be ODM’s nominated members for
both the National Assembly and the Senate in 2013. This has been the case in Nyanza and
Nairobi Provinces more than in other areas for decades, regardless of what political formation r.
Odinga operates from. It is, however, true that when it came to choosing ODM’s parliamentary
candidates for 2007 in the Coast, Western and Eastern Provinces, Mr. Odinga also relied on
advice, input and recommendations of The Pentagon members from these areas. For North Rift,
Mr. Odinga relied on the advice and recommendation of both the ODM chairman Henry Kosgey
and Pentagon member, William Ruto. However, I am aware that for the South Rift, Mr. Odinga
relied on the advice of the late Kipkalya Kones more than on Mr. Ruto’s or Mr. Kosgey’s
recommendations.
Further more, during the 2007 elections, Mr. Odinga was the overall leader whose word
was law. It would therefore be false to assert that members of The Pentagon were equal to Mr.
Odinga and that he [Raila Odinga] could not make any decisions “without their approval.” It
might have been fairly accurate if the proposition was limited to suggesting that some of the
major decisions during the 2007 elections were decided on the basis of consensus within The
Pentagon because Mr. Odinga wanted to cement their unity through good faith and trust.
However, it needs mentioning that everyone, including members of The Pentagon, knew
that the ultimate power, authority and decision-making with respect to the 2007 elections, vested
with Mr. Odinga. After all, he had unilaterally constituted The Pentagon and arbitrarily
appointed all its members. In fact, many senior ODM members like Dr. Sally Kosgey, who had
campaigned indefatigably for ODM were not pleased when Mr. Odinga, again unilaterally based
on no formula or process, simply elevated Ms. Ngilu to The Pentagon, without prior discussions
with other party leaders. He did this on the day Ngilu defected from the Kibaki government to
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ODM. None of the other Pentagon members could expand The Pentagon, and they never
nominated or incorporated anyone into the group. This is just one example of how flawed and
inaccurate the above proposition is.
I have no knowledge of any incident when members of The Pentagon took a major
decision without Mr. Odinga’s consent, concurrence or approval. But I am aware of many
decisions that Mr. Odinga took without seeking the consent, concurrence or approval from other
members of The Pentagon. Apart from unilaterally and constituting The Pentagon, Mr. Odinga
also unilaterally appointed his campaign manager, and with very few exceptions, he single-
handedly constituted the Presidential Election Strategic Team, the Communications Team, and
the Operations Team. To the best of my knowledge, Mr. Odinga also chaired all Pentagon
meetings.
However, third in structural hierarchy and command after Mr. Odinga and his Deputy
Party Leader and Running Mate, Mr. Mudavadi, were, collectively, members of The Pentagon.
The fourth tier comprised the ODM Chairman Henry Kosgey, two vice-chairmen, each
responsible for operations and programmes, and ODM Secretary General Peter Anyang’
Nyong’o. The National Treasurer was far below in terms of power, authority or influence (see
Article 7(b) and (c) of the ODM Amended Constitution, Tab 21, Volume 1 of the Expert Bundles
of Documents).
But there is a practical twist to this explanation. The reality was – and still is – that there
were other operatives in the party with no formal positions either at any of the ODM Secretariats
or in the party but whose word held more sway than members of The Pentagon or those who held
‘national party positions.’ Most of these were Mr. Odinga’s family members or close relatives
such as his wife Ida Odinga; his elder brother Oburu Odinga; his first cousin Jakoyo Midiwo; his
daughter Rosemary Akeyo Odinga; and a retinue of his aides such as Caroli Omondi and
Mohamed Isahakiah. These individuals would rarely attend meetings or contribute when they
attended. However, they often pulled strings behind the scenes.
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Most important decisions were - and are routinely - made by Mr. Odinga and some of
these confidantes before the decisions were/are cascaded down or formally ‘processed’ through
the party organs. For a period of time, I belonged to this trusted inner circle. We often held
informal meetings with Mr. Odinga either alone at his residence in Karen, his home in Bondo or
during private lunches or dinners in private residences or exclusive restaurants, or with members
of the Kitchen Cabinet. Major decisions would be taken and specific individuals assigned the
task of introducing these issues for discussion in the respective party organs. The selected
individuals would then strategically and surreptitiously confide in a core group of people at each
organ so that the idea or issue or decision would be pushed ‘organically’ so that it would appear
as a group or democratically arrived at decision. Frankly speaking, more often than not, the party
organs were – and have been - nothing but convenient rubber stamps for The Party Leader.
Although many party members may either not be aware of it or may be wilfully blind, what I
have described here is what actually occurred and continues to happen within ODM.
Admittedly, there are – and were – a few decisions that would be made during The
Pentagon, National Executive Committee or National Governing Council meetings without
having first been made by Mr. Odinga and his “Kitchen Cabinet.” However, these were primarily
during crisis – and only when Mr. Odinga had no prior knowledge of these meetings, decisions
or schemes by (ordinary) members. But they were extremely rare and only pertained to minor, or
less significant issues. For instance, whenever there were discussions over the ICC process or
Mr. Odinga’s decision to kick Mr. Ruto out of ODM, Mr. Odinga would avoid appearing as if he
was the main driver of the agenda.
The last sentence in the proposition, “The rule was that each leader was responsible for
his or her area,” is false. I am not aware, and do not recall, any such rule – formal or informal.
The assertion also flies in the face of political reality in Kenya. Mr. Odinga had competed with
Mudavadi, Ruto, Nyagah and Balala for the leadership and presidential nomination of ODM in
2007. Both Mr. Mudavadi and Mr. Ruto had put up very stiff competition for the party
leadership. They had both established their separate secretariats and constituted their election
nomination teams. However, Mr. Odinga had defeated them by a huge margin, even in their so-
called areas. Consequently, when they conceded defeat and undertook to support Mr. Odinga for
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the 2007 elections, they were doing so from a position of weakness. They were literally and
symbolically accepting to be led – and dominated - by Mr. Odinga in ODM. I am aware that they
dissolved their respective secretariats and campaign teams. Apart from them campaigning to be
members of parliament in their respective constituencies, all their subsequent activities –
individually and collectively – in the presidential election campaign were as supporting casts to
Raila Odinga’s presidential campaign. In my view, anyone who does not fully comprehend this
simple fact would have nothing useful to say with respect the 2007 ODM leadership structure.
Any other structural arrangement, including the one being suggested in the above
proposition, would have undermined Mr. Odinga’s hard-won authority and weakened his
position in ODM at a time when party unity, cohesion and discipline was a necessary condition
to his success and the party’s electoral victory. Finally, such an arrangement would have fatally
compromised and undermined coordination of ODM’s election campaigns. I seriously doubt that
the person who has advanced the proposition was involved in the 2007 ODM campaigns in any
significant capacity, otherwise, he would have understood and appreciated how things worked.
PART VII
7. Comments and observations on “Annex 4” to the TOR
General Observations
In Part 5, paragraph 5(g) of this Expert Report, above, I have outlined the structure and
organogram of the 2007 ODM campaigns. I have also drawn a rough sketch of ODM’s
leadership structure, which is at Tab 9 of Volume Five of the Expert Bundles of Documents. In
addition, my comments to the proposition at paragraph 6 above, provide additional explanations
about the organogram of ODM.
I would respectfully refer this Honourable Court to my explanations at paragraphs 5(g), 6 and
the sketch at Tab 9 of Volume Five of the Expert Bundles of Documents for my views on this
issue. As well, I wish to refer the Court to Tab 28 in Volume One of the Expert Bundle of
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Documents, titled “Undated ODM Organogram.” That is an original and formal ODM
organogram that was developed for the 2007 campaigns by the Raila Odinga for President
Strategic Team. With this Honourable Court’s permission, I would like to rely on that sketch and
the one I have drawn, and is attached to Volume 5 of the Expert Bundle of Documents at Tab 9
(also identified in this Expert Report at Part X below), regarding my knowledge of the structure
of the ODM leadership during the indicated period. Accordingly, those two sketches, my
explanation at paragraphs 5(g) and my observations on the proposition at paragraph 6 above, and
my comments below, constitute my full and complete response to “Annex 4” thereto.
My organogram sketch on the structure of ODM leadership during the 2007 elections is
provided only for further illustration of my knowledge and understanding. It is complimentary to
the ODM organogram. In other words, whereas the ODM organogram was intended to be the
‘formal’ structure, my sketch is actually how the 2007 campaigns were conducted – the de facto
power structure.
Comments on “Annex 4”
First, I am not aware of the leadership structure presented in Annex 4. To begin with, there
was no ODM structure or organ called ‘Peoples Voice’ [sic]. I find the placement of so-called
‘Peoples Voice’ [sic] at the top of the sketch, higher and above ‘Party Patron/Leader/Flag bearer’
and the ‘Pentagon’ as nothing but pure fiction. If the intention was to show the ‘supremacy of the
people’ in ODM, then it would have been important to remember that as a legal entity whose
membership revolved around payment of annual subscription fees (ordinary, life or corporate) by
all members and their undertaking to conform to the values, vision, rules and policies of the
party, only a few of the duly subscribed members would have the power, pursuant to the ODM
Amended Constitution, as delegates to the National Delegates Convention (“NDC”), to elect the
party’s national leaders. Hence, theoretically speaking, the NDC could possibly be placed in an
elevated position than the Party Leader and Presidential Candidate. But this would only be a
theoretical understanding of ODM’s power structure in 2007.
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Second, after the ODM presidential nominations at Kasarani Sports Complex on September
1, 2007, Mr. Odinga formally became ODM’s Party Leader and Presidential Candidate.
However, even before the party presidential nominations, he had been the de facto party leader.
After he was nominated, he was referred to as ‘the Captain’ for Team ODM. Even though he was
ODM’s presidential ‘flag bearer,’ that was not a title anyone referred to him as. To the best of
my knowledge, Raila was never referred to as the ‘Party Patron.’ To ODM rank and file, Mr.
Odinga was ‘the Captain’ or ‘the People’s President.’ Others chose to refer to him simply as
‘Jakom’ [“Chairman”], ‘Baba’ [“Father”] or ‘Agwambo’ [The Mysterious One”].
Needless to say, ODM did not have a formal or informal position of ‘Party Patron.’ Such
title/position is not contained in the ODM Constitution, the ODM Manifesto or in any of the
numerous ODM documents I have provided in the Expert Bundles of Documents. It was not a
term that was ever used in ODM meetings. To the best of my knowledge, even the local Kenyan
media never referred to Mr. Odinga as the ODM Patron. As such, I believe that the title, like with
the ‘Peoples Voice’ [sic] above, is purely a creation of the person who sketched the organogram
at “Annex 4.” It implies that the person who drew the sketch is not very familiar with ODM
leadership structure.
Second, as I have outlined in my structural organogram at Tab 9 in Volume Five of the

Expert Bundles of Documents, the Party Leader/Presidential Candidate/Captain was deputized
by his Running Mate/Deputy Party Leader/Deputy Captain, Musalia Mudavadi. All ODM
members and leaders knew that the second in command in ODM in 2007 was Mr. Mudavadi.
Third, next in line in terms of power and authority was the informal group the Party Leader
had constituted principally of those who had contested the ODM presidential nominations with
him (Mudavadi, Ruto, Nyagah and Balala) and later Charity Ngilu after her last-minute defection
from the Kibaki government called The Pentagon, as a corporate entity. In other words, except
for Mr. Odinga and Mr. Mudavadi, all the other Pentagon members were considered equal in
rank, power and authority in ODM. The Pentagon’s primary role was the championing of 2007
presidential elections.
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All Pentagon meetings were chaired by the Party Leader/Presidential Candidate. The Vice-
Chairman for The Pentagon was the Deputy Party Leader. To the best of my knowledge and
recollection, Pentagon meetings were held either in secret and/or in private. No Pentagon
meeting was ever held in public. Non-Pentagon members, including the ODM chairman, his two
deputies, and the secretary general, could only attend upon invitation. Information about
Pentagon meetings was shared with non-members on a need-to-know basis. There were no
assigned minute-takers during Pentagon meetings. However, after the 2007 elections, Sarah
Elderkin, Salim Lone and I would sometimes take notes whenever we were invited to those
meetings and as required. But this only occurred after 28 December 2007.
I never attended any meetings of The Pentagon, even after the post-election crisis that was
chaired by anybody else except the Party Leader. The only meetings that would be chaired by
either the party chairman or another senior member or official of the party would be at the
National Party Secretariat at Orange House. During such few occasions, the Party Leader might
symbolically cede his position because of the nature of the issue under discussion. However, no
major decision would ever be made at such meetings without the Party Leader’s concurrence or
consent.
Fourth, the Secretary General was the party spokesman. He was also the formal head of the
National Party Secretariat. He convened all party meetings. On a few occasions, the party’s
Executive Director, Janet Ong’era, convened some meetings. But these were always done in the
name or and/or on instructions from the Secretary General. To the best of my knowledge, the
party chairman never convened any party meetings. However, he used to chair most of the
meetings that had been convened by the secretary general.
Fifth, I believe that both the ODM chairman and the secretary general were structurally at the
same level, even though, in my experience, Anyang’ Nyong’o, as secretary general, seemed to
exert more influence on party affairs than Henry Kosgey as chair. This was possibly because
Nyong’o, as a Luo, and the head of the national secretariat, was deemed closer to the Party
Leader, a fellow Luo. Although the party chairman had two deputies (one of them was Sheikh
Kajembe from the Coast), the vice-chairmen had very little power and influence in the party. As
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well, Omingo Magara, who was the National Treasurer, was definitely lower in power and
influence than both the chair and secretary general. In fact, in my assessment, the National
Treasurer’s influence and power, in operational terms, fell slightly below that of the Executive
Director. Formally, however, the National Treasurer was supposed to be a rank higher than the
Executive Director.
Sixth, below these three national party officials was the party Executive Director. This was
the de facto head of the party’s national secretariat, responsible for “overall coordination, budget
and resource management, and programme management” (See Tab 29, Vol. 1 of the Expert
Bundles of Documents). She was in charge of the day-to-day operations of the national
secretariat. There was no position of ‘director’ as such. I believe Annex 4’s reference to
‘director’ is actually in reference to the executive director. During the 2007 elections, there was
one executive director and seven ‘deputy directors’ reporting to the executive director but who
were in charge of different functions at the secretariat, for instance, deputy director in charge of
policy and research (Sylvester Kasuku); director in charge of finance and administration; deputy
director, party programs (Judy Kosgey); deputy director, communications (Ahmed Hashi);
deputy director, regional coordination; deputy director, security services; and deputy director,
operations. This point is made clearer in ‘The National Secretariat’ document at Tab 29 in
Volume 1 of the Expert Bundles of Documents. My view is that the contents of Annex 4
mischaracterizes and misrepresents the leadership and organization structure of ODM in 2007.
Although it correctly places the position of ‘director’ as being part of the ‘administrative staff,’ it
wrongly places that in an independent box of its own, not together with other administrative
staff.
Seventh, the National Treasurer, the organizing secretary, and the deputy secretary generals,
deputy organizing secretaries, in that descending hierarchical sequence, were next in line.
Formally, the National Treasurer’s position was at the same level as that of the chairman and
secretary general. However, in reality or practice, I believe that his influence was lower than that
of the party executive director.
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Eighth, there were important party organs during this period whose role, functions or
influence cannot be easily captured through simple/simplistic hierarchical sketches. For instance,
the five presidential campaign secretariats responsible for The Pentagon House; the strategic
team (Rainbow House), the communications team (49 Convent Road), the operations team (Titan
House) and those dealing with personal and other campaign related needs (the ROC) of the
presidential candidate were directly answerable to the Party Leader and The Pentagon and
accountable to the party at the same time. These six secretariats played the single-most vital role
during the 2007 general elections. Yet, they were not all, strictly speaking, part of the party
structure. In addition, the National Elections Board (“NEB”), the National Executive Committee
(“NEC”) and the Parliamentary Group (“PG”) were key organs of the party that might not be
placed neatly on a sketch as they ‘interacted’ with all levels of the party leadership structure.
Ninth, Annex 4 erroneously places ‘Heads of department [sic] e.g. security, media &
campaign strategies, Resource mobilization, Elections board’ [sic] as falling right below
‘Administrative Staff – Director.’ I consider these and other purported information contained in
Annex 4 misleading, erroneous and inaccurate.
Tenth, to have placed the ‘National Delegates 4200,’ which might (based on the sketch of
Annex 4) be theoretically the representatives of the ‘people’s voice’ across from the ‘3 party
officials: chair, Sec, Treasurer,’ as if these ‘delegates [sic]’ were at the same level in terms of
power and authority with the ‘three party officials,’ and then to have placed the ‘Members of
NEC, Executive Director, Women League, Youth League, Party Patron/Flag bearer, Party
Officials, Elections Board Chair, Finance Director, Elected MPs assumed to be part of NEC’ on
the same level (horizontally), is not just confusing, it is the clearest demonstration that whoever
drew up that sketch, knows very little about the ODM leadership structure in 2007.
I also find it difficult to comprehend why the box containing ‘National Delegates: 4200’ has
an arrow connecting it to the box on the left with ‘3 party officials chair, sec, Treasurer’ [sic] on
it. One would have reasonably thought that these delegates were presumably the ones that would
have elected ODM national officials including its flag bearer. In any event, the ultimate
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‘decision-maker’ in the party, formally and theoretically speaking, was the “National Delegates
Conference,’ as a legal and collective entity.
Article 10, pp. 11 and 12
Eleventh, the information contained in Annex 4 isn’t just mumbo jumbo; it appears like a
deliberately created falsehood intended to mislead this Honourable Court. I am not sure why it
has been done because if the person responsible for sketching it had simply made diligent
inquiries from the National ODM Secretariat or from people who are either officials of the party
or those who played significant roles in ODM’s 2007 campaigns, then s/he would have easily
obtained the structure or organogram at Tab 28 of Volume One of the Expert Bundles of
Documents, which is starkly different from Annex 4. I find it extremely difficult to understand
how anybody claiming to be knowledgeable about ODM’s leadership structure of 2007 could
have placed the ‘Party Leader/Flag Bearer’ both at the top (albeit mystifyingly second in order)
and then simultaneously placed the ‘party leader’ hierarchically below members of the NEC,
Executive Director, Women League and Youth League on the box to the left of Annex 4. I also
find it puzzling that the Annex 4 sketch places the ‘Party Leader/Patron’ both at the top of the
sketch, and again below members of the NEC.
Twelfth, at the bottom of the box of the sketch to the left, which begins with ‘Members of
Nec’ [sic] and ends with ‘Elected MPs assumed to be part of NEC,’ the implication is either that
some elected MPs are not members of NEC or that ‘elected MPs’ are only “assumed” to be
members of NEC. However, it is common knowledge that all ODM Members of Parliament are
deemed members of NEC and they are all allowed to attend all NEC meetings. Moreover, Article
11(a) of the ODM Amended Constitution, supra, lists the composition of the NEC.
Ref: ODM Amended Constitution; Expert Bundles of Documents, Vol. 1, Tab 21, p. 12
Thirteenth, I have reviewed the item attached at Tab 30 in Volume One of the Expert
Bundles of Documents titled ‘ODM Directory.’ Right from the top, the first name is that of Hon.
Raila Odinga, followed by Hon. Musalia Mudavadi, Hon. William Ruto, Hon. Najib Balala,
Hon. Joseph Nyagah, Hon, Henry Kosgey, SG (Secretary General), et cetera. I believe that the
document at Tab 30 of Volume One must have been generated before Charity Ngilu joined
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ODM. Significantly, it does not refer to the mythical ‘Peoples Voice [sic], nor does it
correspond, in any fashion, with the sketch at “Annex 4.”
And fourteenth, anybody with valuable knowledge of ODM’s structure in 2007 would never
place heads of security department at the same level with the strategic and communications
teams, nor would security be placed together with the NEB. In any event, there was no organ in
ODM in 2007 called ‘media & campaign strategies.’ ODM – and the Raila Odinga Presidential
Campaign - had an entity called ‘communications’ and another called ‘strategy’ or the ‘strategic
team.’ These two entities were separate, and were physically located at two different addresses.
They were headed by two different people. Members of these two teams were different and
separate.
PART VIII
8. What I believe caused the violence following the announcement of the 2007 Kenyan
presidential election results and whether or not I believe Mr. Ruto was involved
The information contained in this paragraph consists of my knowledge of the 2007

campaigns (both ODM and PNU) and my reasonable beliefs based on what I observed, discussed
with others and opinions I have formed based on both my knowledge and beliefs as well as from
literature I have read or reviewed, and information I have gathered from different fora, including
but not limited to, the media (both local and international), the Internet and my reflections on
what I understood from both the Independent Commission of Inquiry into the Elections of 2007
(“Irec” or the “Kriegler Commission”) and the Inquiry into Post-Election Violence (“CIPEV” or
the “Waki Commission”).
Immediate causes of the violence

As I have described at 5(i) above, there was increasing tension and anxiety around the
country from the days and weeks preceding the December 27th, 2007 general elections because
of reports that the Kibaki government intended to rig the elections. Kibaki himself had not
helped the situation by unilaterally appointing ECK commissioners just weeks before the
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elections without consulting ODM leaders, contrary to the IPPG agreement of 1997. Things
worsened when, just two days before December 27th, KTN TV station and The Standard
newspaper reported – with live pictures – that City Hopa buses (owned by then PNU politician
and then Juja MP, George Thuo) were ferrying large numbers of security forces to Nyanza,
Western and Rift Valley Provinces where ODM was very popular, purportedly to be PNU poll
agents. I recall reading media reports of frightened police officers being lynched in some parts of
Nyanza and the Rift Valley. These incidents helped create an environment where rumours, fear,
suspicion and anger dominated and objectivity, balance and reason became casualties. My
opinion is that during divisive and both hotly and closely contested elections, such an
environment is a powder keg for violence.
In addition, between December 27th and December 30th, the ECK chairman kept making
inflammatory statements on live television at the ECK media centre as the country waited
anxiously for the presidential results. For nearly two days straight, Raila was ahead of Kibaki
with a huge lead. At one stage, I recall that the lead was about 1,000,000 votes. And just when
ODM people like me felt that the margin was insurmountable, ECK suddenly started releasing
results, many of them unsupported by properly filled and signed forms 16As and 17As, results
that had been withheld for nearly two days. When this happened, ODM supporters panicked and
suspected that massive rigging was underway. And with Kivuitu still making inflammatory
statements, claiming that some of the ECK’s returning officers had disappeared and switched off
their telephones; that he could not get hold of them; that he would not accept results these
returning officers were cooking; and that he was prepared to burn with the country and to release
the results from a military submarine, results from Kibaki’s Mt. Kenya region that had been
withheld began to be released.
And as ODM presidential agents like James Orengo, Charity Ngilu, William Ruto and I were
busy pushing the ECK to stop releasing the results until an audit had been conducted of the
‘questionable’ results that were being released in favour of Mr. Kibaki from Central and Eastern
Provinces, specifically, sporadic and spontaneous demonstrations by ODM youth were erupting
in parts of Nairobi, Nyanza, Coast, Western and Rift Valley Provinces. I understood that these
were largely peaceful demonstrations. I recall seeing large numbers of civilians demonstrating
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carrying Mr. Odinga’s posters and branches of trees along roads. I do not have any recollection
of ODM youth carrying any weapons during the early stages of their protests. However, they
were met by trigger-happy security forces that refused to allow any protests and instead started
shooting at the demonstrators with live ammunition. That resulted in violent confrontations
between the demonstrators and the security forces. The situation deteriorated badly on December
30th after Kivuitu declared Kibaki “duly elected” on the Kenya Broadcasting Corporation
(“KBC”) TV station from a secret location within the KICC before the latter was speedily sworn
in within thirty minutes at dusk on the same day.
Curiously by this moment, there was either no television coverage of the results of any kind,
or the information being relayed was misleading and calculated to further perpetuate rigging. I
recall sitting at The Pentagon House with Raila, all members of The Pentagon, all ODM national
officials and some members of ODM’s six secretariats, switching from channel to channel
without success. Except for the KBC TV station that Kivuitu later used to release the results on
December 30th, 2007, all the other TV stations were blank. That was after we had tried to declare
Raila president and the power at The Pentagon House had been switched off and Mr. Michuki
had issued a live ban on the media.
In other words, as far as I have been able to determine, the post-election violence was
primarily caused, first and foremost by the alleged rigging of the 2007 elections. The initial
reaction and protests were spontaneous reactions to the obviously calculated delays in releasing
results from Kibaki’s strong-holds in Central and Eastern Provinces in order to determine how
many votes could be added to his tally in order to contrive his eventual artificial victory. This is
particularly the case because even though there had been “normal” sporadic violence in some
parts of the country prior to Election Day, there had been relative calm and peace on Election
Day. I read media reports that voting had been peaceful throughout the country.
The peace and calm had continued during counting and tallying at the Constituency Tallying
Centres throughout the country. Even with heightened anxiety and tension on most of the day on
28 December 2007, violence had not erupted. Yet, ironically, the then internal security minister,
John Michuki, had sent tens of thousands of heavily armed and menacingly attired police and
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other special security units to predominantly ODM areas of Nyanza, Kibera in Nairobi, parts of
the Rift Valley, Coast and Western Provinces. I am aware that many ODM leaders, members and
supporters interpreted these as acts of provocation and intimidation. I believe that these acts
could have sent early warning signs to ODM supporters that Kibaki was intent on grabbing
power by force. Under the prevailing circumstances, these acts would have precipitated
spontaneous violent reactions from the ODM supporters, and I believe they did.
Second, the violence was worsened by the brutal reaction of the security forces. In my view,
the civilian-to-civilian violence had been precipitated by the confrontation between the angry
ODM youth and the security forces. I recall receiving reports that the security forces had taken
sides and offered protection to predominantly Kikuyu youth and members of the Mungiki militia
who were hunting down, killing and attacking Luos, Luhyas and Kalenjins in Kibera and
Mathare in Nairobi, as well as in Nakuru, Naivasha and Eldoret. The violence, which could have
easily been contained, had quickly escalated, spread and ultimately became intractable.
Third, the refusal by the Kibaki government to allow ODM leaders and protesters to gather
and express themselves freely in public places like Uhuru Park forced angry youth to respond by
being violent themselves. Initially, the ODM youth simply wanted access to public places so that
they could express their outrage, anger and frustration. However, later, I believe that to the ODM
youth, fighting back became not just an expression of a fundamental democratic right of ensuring
that the popular will of the people prevailed through their votes, it was a means of self-defence.
In other words, the people felt seriously cheated in the sense that they had peacefully exercised
their right to vote to change their government and governors peacefully through the ballot box,
but that someone or some people had vitiated that by massively rigging the presidential election.
Consequently, thousands of ODM youth felt that they had a corresponding duty to do whatever
was necessary to undermine the civilian coup that had been executed against their democratic
rights.
Fourth, the government’s ban on live coverage on the same day Kibaki was irregularly sworn
in created confusion, panic and helped the dissemination of rumours and misinformation to
spread like wild fire thereby further exacerbating the situation. Moreover, the publication ban
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prevented ODM leaders from appealing directly and on real-time for calm and peaceful protests
from their supporters, thereby worsening the violence.
I am aware of allegations that ODM leaders’ call for mass action might have caused the
violence. This allegation begs the question as to why there was a call for mass action to begin
with. ODM leaders only resorted to mass action once the ECK, the Kibaki government and the
security forces showed no interest in attempting to have the electoral dispute resolved peacefully.
Instead of heeding to appeals by ODM leaders to conduct a forensic audit of the results from
disputed constituencies before declaring Kibaki the winner of the 2007 presidential elections, the
ECK crumbled under pressure and rushed to make the declaration. This was done despite the fact
that most of the tallies had not been supported by duly filled and signed forms 16As and 17As.
Root causes of the violence

However underlying these immediate causes were deep-rooted, systemic and historical
factors that, over a long period of time, might have created built up anger, resentment and
grievances, that left unaddressed, could have caused the violence.
First, Kenya is a deeply divided and unequal society. The divisions and inequalities are not
necessarily based on ethnic differences; they are mostly class cleavages. However, most of these
cleavages exemplify themselves in ethnic terms, especially when political elites seek to use and
exploit them for parochial gains. The gap between the rich and the poor in Kenya is so wide, and
quickly increasing, to the extent that the situation could result in a class war if not addressed
soon. But because those who have presided over these economic and class inequalities for the
past fifty years happen to be affiliated to two ethnic groups - Kikuyu and Kalenjin - in the sense
that the first (Jomo Kenyatta, a Kikuyu), the second (Daniel arap Moi, a Kalenjin), the third
(Mwai Kibaki, a Kikuyu) and the fourth (Uhuru Kenyatta, a Kikuyu) presidents all have come
from these two ethnic groups, the rest of the country have developed deep-seated grievances that
could easily lead to violence what with ethnic characteristics, like the 2007 one.
Second, there have been numerous and accumulating historical injustices committed mainly
by the state against both individuals and ethnic communities. For instance, there have been many
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unresolved political assassinations. Even though victims of political assassinations and murders
have been from different ethnic communities (e.g., Pio Ghama Pinto, an Asian, was assassinated
in 1969, and J.M. Kariuki, a Kikuyu, in 1975), unfortunately, an inordinately large number of the
victims have tended to be prominent and promising members of the Luo community. A few
examples will suffice: Tom Joseph Mboya (one of the three leading independence heroes and
former secretary general of KANU, former minister of planning, justice and constitutional
affairs, assassinated in 1969); Argwings Kodhek (independence hero, first Kenyan African
barrister and former minister of foreign affairs, assassinated in 1969); Dr. Robert Ouko (former
minister of foreign affairs, assassinated in 1990); Dr. Crispin Odhiambo Mbai (a university
professor and chairman of the devolution committee during the Bomas Constitutional Process,
assassinated in 2003). Coupled with more than forty years of systematic and deliberate political
and economic marginalization, the Luo have had legitimate grounds for anger and frustrations.
These could easily boil over and result in ethnic related violence in view of the fact that Jaramogi
Oginga Odinga is reputed for having declined to take power when offered by the British in
favour of Jomo Kenyatta. He is also credited for championing Kenyatta’s release from prison.
Jaramogi’s clarion call before independence was “No Uhuru [independence/freedom] without
Kenyatta!” Yet, after independence, Jaramogi was treated quite shabbily by Kenyatta. He was
forced to relinquish his position as Kenya’s first vice-president and vice-president of KANU.
Kenyatta later detained him without trial, before relegating him to persistent persecution and
economic strangulation. Jaramogi’s political party, Kenya People’s Union, was banned and its
leaders detained. Kenya soon became a de facto one party state. Jaramogi and his colleagues
could not participate in the political process as they were denied the opportunity to contest for
elections even under KANU. Moi continued Kenyatta’s repressive tendencies and turned Kenya
into a de jure one party state. Jaramogi died in 1994 a dejected and humiliated man. Yet to the
Luo, he remains a legend.
Over the years, the Luos, even though reputed for sometime in the past to be the ‘most
educated’ community in Kenya, have found themselves locked out of senior positions in all state
institutions. Matters worsened after the 1982 aborted coup attempt, which was blamed on junior
Luo air force officers, Jaramogi Oginga Odinga and Raila Odinga. Luos were severely purged
from the military, the police and most state security institutions. They have not faired much
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better in the civil service either. Nor have they succeeded in the private sector. The latter has
been a huge challenge mainly because without government patronage, government procurement,
supplies, contracts and advertisements – which is the mainstay of blue chip business in Kenya –
became inaccessible. For more than forty years after independence, even obtaining or accessing a
business loan or foreign exchange in order to import goods in Kenya required government
patronage. In addition, the backbone of the economy in Luoland – fishing, sugar cane and cotton
farming – suffered as much as their political fortune.
Therefore, when it appeared obvious to most observers – and primarily to Luos – that Kibaki,
like Kenyatta and Moi – was intent on denying Raila Odinga (considered another Luo hero and
Jaramogi’s son), his rightful victory through massive rigging and what amounted to a civilian
coup, it was inevitable, in my view, that the Luo would, almost naturally, explode in violence
against those they perceived as their historical tormentors. Sadly, their overwhelming anger
targeted innocent civilians with virtually no direct involvement to Mr. Kibaki’s alleged electoral
crimes.
Third, and closely connected to the second point, is the historical injustices related to ethnic
marginalization of smaller ethnic groups like the Maasai, the Pokot, the Turkana, the Samburu,
the Giriama, the Digo, the Somali, and many others. For some time, even the Kalenjin were
considered a ‘small ethnic group.’ At independence, only the Kikuyu and the Luo were
considered ‘large ethnic groups.’ And because they had dominated the independence struggle
limelight and occupied most prominent positions in the executive arm of government and other
government institutions when Kenya obtained her political independence, the Kalenjin had
joined other ‘smaller communities’ to form the Kenya African Democratic Union, in opposition
to the then Kikuyu/Luo dominated KANU. Consequently, after independence, the Kalenjin, like
the Maasai and other demographically ‘smaller communities,’ strongly resented the
encroachment of ‘foreigners’ into what they considered their ‘ancestral land.’ And because Jomo
Kenyatta had used his power to settle many Kikuyu people in the Rift Valley and at the Coast, in
addition to acquiring inordinately huge tracts of land for himself, his family and cronies, the
resentment had been boiling for decades. At independence most Kenyans, especially the Kikuyu
and Kalenjin people believed and expected that the post-colonial government would return land
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that the British colonialists had forcefully expropriated from them. However, the new leaders
took most of these lands for themselves and left the expectations of their people unfulfilled. This
caused more anger and frustration. By December 2007, the issue of land grabbing had therefore
been a simmering grievance for a very long time.
Unfortunately, neither Kenyatta, nor Moi, nor Kibaki, initiated the required fundamental land
reforms that could have resulted in these grievances being addressed for the benefit of long-
lasting peace and stability amongst and between different communities and peoples. There were
also incidents of state brutality against members of these smaller communities. There had been
allegations of systematic massacres like the one that occurred at Wagalla in the 1970s against the
Somali community.
The Bomas Draft Constitution that was deemed as the most realistic means at addressing
these issues of historical injustices, marginalization and land-grabbing, was undermined by
Mwai Kibaki. His desperate attempt at imposing an unpopular draft constitution in 2005 was
rejected by more than three quarters of the Kenyan population. Kenyans, but especially those
who had historical grievances against the successive Kenyan governments, saw an opportunity of
addressing their grievances through a new people-focused constitution. But they also realized
that they would not get a new progressive constitution unless they elected a leader who believed
in, understood, and was committed to, the constitution they wanted. In 2007, they had identified
that person as Raila Odinga. Their party of choice was ODM. Consequently, when the people
who had suffered so much and had hoped that this time around they would have a realistic
chance of bringing about the fundamental changes they deserved, including in the land tenure
system and the governance structure, they must have been outraged by what seemed to them as a
blatant electoral theft by Mwai Kibaki.
So, they reacted with fury, and when confronted with lethal and brutal security forces with
explicit orders to shoot-to-kill, they resorted to violence and mayhem. But it is important to focus
on who caused that outrage. In my view, it was the insensitive political and economic elites that
created a society that had alienated so many of its citizens until they felt that their only option out
of this unjust and repressive system was violence. Ultimately, most of the blame goes to Mwai
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Kibaki and the ECK for precipitating the conflict and the violence, and for doing absolutely
nothing to stop it.
And fourthly – this is related to the first and second points - is that even ordinary members
of the Kikuyu community, especially the youth, also felt alienated. The unemployment rate in
Kenya, especially among the youth in 2007, was widely believed to be more than 65 per cent.
Most of this youth lived in urban centres. During elections, most of this youth would be engaged
in politics either as ‘purchased-and-bused-in audiences,’ voters or people doing many menial
jobs for politicians and political parties. But the youth was still a frustrated lot. Some of them
had turned to petty crimes to earn a living. Many were homeless. Virtually all were landless. For
years, the Kikuyu youth, especially those suspected of belonging to the Mungiki sect suffered
debilitating attacks in the hands of Kenya’s security forces under John Michuki that resulted in
hundreds of deaths. There were running battles between the police and the Mungiki youth in the
months leading to the 2007 elections.
Under the circumstances, the high unemployment, the desperation, the despondency and
frustrations of the Kenyan youth, who comprise a huge percentage of the national population,
and the widespread violent culture, was a powder keg waiting to erupt. Many of the unemployed
youth could easily be hired to cause mayhem. Many others could have taken advantage of the
situation to loot, to steal and then cause mayhem. At the end of the day, I hold the view that these
fundamental problems could have easily caused the violence, with or without any evil hidden
hand organizing, training, arming and instructing them, in the aftermath of the electoral crisis of
2007.
My view is that the foregoing explanations fit with the recommendations of the mediation
process that brought about peace on February 28, 2008. It stipulated that there had to be both
immediate and long-term solutions to the problems that caused the 2007-2008 post-election
violence. Apart from the political settlement and the humanitarian appeals that put in motion
ways to stop the violence, establish a coalition government, resettle the internally displaced
persons and to treat, house and feed the affected, processes were also instituted to conduct
inquiries into the electoral process and into the violence. As well, a truth, justice and
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reconciliation process was formed. Long term, the constitutional review process, land reform,
institutional reforms including reforms of the judiciary, the police and the civil service were
proposed. By August 4, 2010, Kenyans had promulgated a new constitution that attempted to
redesign the architecture of the governance system. Through it, we now have a
devolved/majimbo system of government and a new, independent National Land Commission
that was established to address all the longstanding issues pertaining to land.
Do I believe William Samoei Ruto was involved, in any way, in the 2007-2008 violence?
There were numerous meetings that Mr. Ruto attended both at The Pentagon House and at
the Orange House between December 30th, 2007 and February 28th, 2008. During one of those
meetings, we discussed the issue of ODM seeking intervention from the ICC to deal with crimes
against humanity that we believed Kibaki, members of the security forces and members of his
PNU group like Njenga Karume, John Michuki, former Police Commissioner Gen. Hussein Ali
and other highly placed individuals at the time had committed against ODM supporters in
Nyanza, Kibera, Naivasha, Nakuru and parts of Western, Rift Valley and Coast Provinces. A
unanimous decision was quickly arrived at and James Orengo was given the mandate of
petitioning the ICC on behalf of ODM. Had Mr. Ruto raised any objections, I would have
recalled it because he would have been the only objector. However, because he did not, it
fortifies my belief that had he been complicit in any of the crimes against humanity during that
time, he could not, reasonably, have participated in a process that he thought could potentially
result in his prosecution.
Although many PNU apologists have claimed that ODM could have gone to court to
challenge the election results, most honest, reasonable and knowledgeable Kenyans know that in
2007-2008, the Kenyan judiciary was irredeemably politically compromised and corrupt.
Virtually all the judges were political appointees, many of them having been picked from
oblivion by Kibaki and elevated to the bench. Moreover, the Kenyan judiciary, like most
institutions in the country, had suffered through many decades of state interference and brutal
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crackdown. Accordingly, expecting that such a judiciary was capable of fairly, objectively and
justly presiding over an opposition complaint against a sitting president was more than naïve.
In addition, ODM called for peaceful mass action. Both legally and constitutionally, peaceful
protests, demonstrations, pickets and civil disobedience were guaranteed rights, even under
Kenya’s old/repealed Constitution. In my considered opinion, all the government needed to do
was ensure security at all public spaces where ODM intended to hold peaceful protests.
However, Kibaki responded by cracking down and unleashing violence against all opposition
protests. With no access to the media and other means of reaching their supporters, and no viable
recourse, ODM leaders were reduced largely to spectators in the unfolding crisis. Under these
circumstances, I strongly believe that the people were entitled to reasonable means of self-
defence. This is particularly the case when one considers the fact that the police were not acting
as a professional institution that was protecting both ODM and PNU civilians alike.
As I have stated before – even to some ICC investigators like Dirk and other senior officials
like the former head of situation analysis for Kenya, Emeric Rogier - I do not believe that
William Ruto was involved in planning, organizing, sponsoring, aiding and abetting, facilitating,
or encouraging the perpetration of post-election violence; nor do I believe that he was associated
in any way with the post-election violence of 2007-2008.
I have many reasons for this belief, chief among them was the fact that I was with Mr. Ruto
at the KICC from December 28th to December 30th, 2007, inclusive. If Mr. Ruto’s intention all
along was to ferment violence in the Rift Valley regardless of the outcome of the 2007 elections,
why did he rush back to Nairobi after having secured his parliamentary seat in Eldoret North?
Why did he spend all those days and nights with James Orengo, Charity Ngilu and I at the KICC,
anxiously trying to push the ECK to release legitimate presidential results instead of the fake
ones they were releasing? My view is that a person planning something as serious and major as
crimes against humanity would have found justification to stay in the Rift Valley and would have
executed his evil plans there without returning to Nairobi. I believe that Mr. Ruto is a normal
human being who could not be in two places at the same time. I do not believe that Mr. Ruto
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could have been involved in post-election violence in the Rift Valley through osmosis while with
me at the KICC.
Prior to December 27th, 2007, Mr. Ruto and the entire ODM leadership was so busy criss-
crossing the country, campaigning not just for his re-election as a member of parliament, but also
for Raila Odinga’s presidential victory, to have had time, opportunity or reason to plan, abet or
execute the post-election violence. Doing anything else during the electioneering period would
have been counterproductive as it would have caused divisions within Mr. Ruto’s cosmopolitan
constituency and could have ultimately denied him victory at the constituency level. Importantly,
Mr. Ruto’s conduct during and immediately after the December 27th, 2007 elections is not
consistent with the allegations against him.
As I have argued above, Mr. Ruto and most ODM leaders and supporters were very
confident of a huge victory against Kibaki. I actually believe that Raila Odinga had defeated
Kibaki in 2007. Significantly, ODM got 106 MPs against PNU’s 45 in the 2007 elections. ODM
and Raila Odinga also defeated Kibaki in Nairobi, Nyanza, Western, Rift Valley, Coast and
North Eastern Provinces. With Kalonzo leading in Eastern Province, Kibaki only won in Central
Province. It is therefore highly unlikely that a person who had only won in one region could
emerge victorious. Demographically, Central Province is occupied by the Kikuyu, who were
only 20-22 per cent of Kenya’s total population. Therefore, I believe that Ruto, like virtually all
ODM leaders and supporters, were preparing for celebrations when violence broke.
Further, Mr. Ruto was a mere MP-elect on December 30th, 2007. He was not the leader of
ODM. He had not run for president in 2007. In fact, he has never contested for the presidency of
Kenya. As I have argued above, most ODM strategists believed that Mr. Odinga was more
popular than Mr. Ruto in the Rift Valley in 2007. When the protests had initially erupted, the
ODM youth, including in the Rift Valley, were protesting as they carried Mr. Odinga’s campaign
posters, T-shirts and images and images, chanting “No Raila, No Peace!” They were not
chanting “No Ruto, No Peace!” ODM supporters wanted Raila to be president, not Ruto.
Consequently, the person who held complete sway over ODM supporters country-wide was
Raila, not Ruto.
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But even more significantly, as a mere MP-elect, the government had the machinery and
inclination to watch, detect and arrest Mr. Ruto had he been engaged in any criminal activity,
particularly against the Kikuyu, who were members of Mr. Kibaki’s ethnic group. The fact that
the Government of Kenya did not detect and/or arrest Ruto, in my view, fortifies my view that he
could be innocent of the charges facing him before this Honourable Court. Moreover, in my
respectful assessment, Mr. Ruto could be responsible for both the immediate and long-term
factors that I have listed above, as being the causes of the post-election violence. More
significantly, my view is that he did not stand to benefit from that violence. Whether the violence
resulted in the death and forceful displacement of thousands of innocent civilians - as it tragically
did - could never have elevated Mr. Ruto from a mere Member of Parliament for Eldoret North
to any other leadership position in the country. I do not believe that Mr. Ruto could have
foreseen the formation of the coalition government in December 2007. Consequently, it is my
humble opinion that even the ministerial positions he eventually held in the coalition government
were discretionary appointments of both Mr. Odinga and Mr. Kibaki. In the end Mr. Ruto was
fired from his cabinet post after he had political disagreements with Mr. Odinga.
I do not believe that Mr. Ruto was then the most popular politician even among the Kalenjin
in 2007. As I have indicated before, I strongly believe that other Kalenjin politicians like Henry
Kosgey (a Nandi from the North Rift) and Kipkalya Kones (a Kipsigis from the South Rift) were
considered either more influential than Mr. Ruto or of equal influence as Mr. Ruto in the Rift
Valley. After all, they were older and had more political experience than Mr. Ruto.
Even though former President Moi had retired from politics by 2007, he was still widely held
in very high regard in the Rift Valley, especially among Kalenjin communities. Also significant
is the fact that apart from the informal membership of The Pentagon (which was an ODM
presidential campaign organ in 2007), Mr. Ruto held no formal position in any political party in
December 2007. Consequently, when millions of ODM supporters, including Kalenjin ones
watched their TVs and listened to their radios and realized that Mr. Odinga had been denied a
chance to lead them so that he could help transform the country as ODM had made them to
believe he would, they reacted angrily. This unprecedented uniform and massive anger partly
137
manifested itself, in many areas, in uncontrolled violence against what the people had
misperceived as the perpetrators of the electoral injustice against them. But this violence could
not have been primarily or significantly in support of, or of benefit to, Mr. Ruto. In the end, I do
not believe that Mr. Ruto stood to gain anything significant from it; only those who were running
for president could have, and indeed, ultimately, did.
I recall clearly when Mr. Ruto and Mr. Mudavadi addressed a huge gathering of ODM
supporters near the Department of Defence in Nairobi on January 3rd, 2008. Mr. Ruto did not use
any inciting or inflammatory language. He did not call on ODM supporters to attack anybody.
He did not utter anything that can be remotely construed as anti-Kikuyu propaganda. I believe
that if Mr. Ruto had been inclined to perpetrate violence against members of the Kikuyu
community and to have innocent Kikuyu civilians evicted and killed, the gathering of January 3rd
would have presented an ideal opportunity to utter inflammatory statements against them. This is
because this event occurred shortly after Kibaki had been sworn in following a bitterly contested
presidential election.
However, unlike me who wanted us to try and access Uhuru Park even by force on January
3rd, 2008, Mr. Ruto called for calm and peace and pleaded with the thousands of ODM
supporters to disband and return home that day. That to me is not the attitude, posture or mind-
set of a violent megalomaniac who was – according to the allegations against him before this
Court – not just planning, but executing, an ethnic pogrom against the Kikuyu in the Rift Valley.
For example, early morning on January 9th, 2008, Mr. Ruto arrived at The Pentagon House,
Nairobi, with members of the African Forum (now Panel of Eminent African Personalities) –
former Zambian president Kenneth Kaunda, former Botswana president Sir Quett Masire,
former Mozambican president Joaquim Chissano, former Tanzanian President Benjamin Mkapa,
and the executive secretary of the African Forum, John Tesa. The Ghanaian president John
Kufuor had arrived already in Kenya and had met President Kibaki at State House. He was due
to meet Mr. Odinga and members of the Pentagon. Mr. Kufuor was also scheduled to visit
Eldoret, where Mr. Ruto had just visited with the group of Africa’s elder statesmen.
Ref: Raila Odinga, 2013; Expert Bundles of Documents, Vol. 5 Tab 7, p. 833
138
Although my hand-written notes of that meeting indicated that President Chissano chaired
the African Forum’s session and spoke at considerable length, with Mr. Kaunda and Mr. Mkapa
being extremely brief in their comments, and Sir Masire being the second most expansive in his
comments, I unfortunately do not have notes about the contributions of Mr. Odinga and his
Pentagon colleagues at the meeting. This might simply be due to the fact that ODM’s strategy at
the time was to listen to what these elder African statesmen had to say before caucusing to
explore options. In any event, Mr. Odinga has captured the gist of what was discussed in his
recent autobiography (Raila Odinga, 2013, supra). Instructively, Mr. Odinga notes that Mr. Ruto
was the one who had accompanied these elder statesmen to Eldoret to witness the aftermath of
the tragic conflict, to seek peace and to begin the process of healing and lay the foundation for
finding both immediate and long term solutions to the crisis. In my view, those were not the
actions of the most responsible person for the crimes that had been committed there.
I am aware that Mr. Ruto is a very intelligent, thoughtful and articulate man. It is common
knowledge in Kenya that Mr. Ruto is extremely fluent in his Kalenjin language, in Kiswahili and
in English. Among the ODM Pentagon in 2007, Mr. Ruto was perhaps one of the most articulate
leaders of ODM. Mr. Najib Balala was another one. And for people like me who were interacting
with him and watching him on TV regularly, I do not believe that Mr. Ruto ever communicated
with his audience through riddles and/or code words. He occasionally sprinkled his rally
addresses in Kalenjin whenever he was addressing primarily or mainly Kalenjin speakers, as
many leading Kenyan politicians usually did. However, to the best of my knowledge, he often
only used Kiswahili and English. In Kenya, the only leading politician known for using riddles,
soccer commentaries, figures of speech and anecdotes is Raila Odinga; not Mr. Ruto. In fact, Mr.
Ruto often sarcastically refers to Mr. Odinga as ‘Mr. Kitendawili’ [“Mr. Riddles’]
In my view, as a highly intelligent and fairly experienced politician, Mr. Ruto could not have
publicly (in the media glare according to some reports I have heard and read in the media
recently) helped initiate and propel a process that would later ensnare him. In fact, even during
the parliamentary debates that considered whether or not to institute a local judicial mechanism
to try the post-election cases, I recall hearing Mr. Ruto argue that the cases should be taken to
139
The Hague because the Kenyan judiciary was then ill-equipped to render justice to victims of
post-election violence. Although I understand that he voted for the local judicial mechanism in
Parliament, his public posture, as I recall it, was for the post-election cases to be tried at ICC
For me, these few examples portray a person who never suspected that he could ever be
charged with these crimes, not because he thought he was too smart to be caught since he had
covered all his tracks, but because he probably genuinely thought he was innocent of the crimes
because he hadn’t participated in them. This is the position I hold.
Since Mr. Ruto campaigned vigorously for ODM in 2007 and spoke numerous times during
the entire electoral process and after, I might be inclined to believe some of the allegations if I
hear and see credible and accurate TV clips showing Mr. Ruto using incendiary, inciting and
inflammatory language against the Kikuyu, asking the Kalenjin to attack or displace innocent
civilians, or credible and irrefutable evidence directly implicating him to any of the alleged
crimes.
However, what I have heard and seen so far of the allegations against Mr. Ruto are, in my
respectful opinion, speculative and contradictory. I have heard incredible stories of how Mr.
Ruto was supposed to have been crowned a “Kalenjin King” at a cultural event that in my view,
looked familiar with numerous events that have been used to induct nearly all major national
politicians in Kenya as ‘elders’ of various ethnic communities. I am aware that Raila Odinga has
been installed a Luo, a Luhya, a Kalenjin, a Kikuyu, a Mijikenda, a Giriama, a Somali, a Maasai,
a Turkana, a Pokot, a Samburu, a Kisii and a Digo elder – you name it. However, no one could
reasonably argue that merely on account of these symbolic traditional ‘installations,’ Raila
mystically became the ‘King of Kenya,’ and on that nebulous assertion, we would conclude that
Mr. Odinga was therefore most responsible for the 2007-2008 post-election violence.
If that accusation cannot stand against Raila Odinga, I believe that it should not also stand
against Mr. Ruto.
140
When the African Union intervened in the Kenyan post-election crisis of 2007-2008 and
established the Panel of Eminent African Personalities comprising Dr. Kofi Annan as chair, and
both former Tanzanian president Benjamin Mkapa and Lady Graça Machel as members, Mr.
Ruto was among four ODM negotiators (the others were Mudavadi, Orengo and Dr. Sally
Kosgei) that worked tirelessly with their PNU counterparts for more than one month before
peace and stability could be restored in Kenya. The National Accord and Reconciliation
Agreement that brought peace and stability in Kenya was signed between Mr. Odinga/ODM and
President Kibaki/PNU on February 28th, 2008.
Ref: Acting Together: Agreement on the Principles of Partnership of the Coalition
Government and the National Accord and Reconciliation Act 2008; Expert Bundles of
On reflection, it appears that Mr. Ruto had been involved long before the mediation process
even started. Ironically, during that same period, I recall meeting Maina Kiai, a prominent human
rights defender one morning at a restaurant near my residence in Nairobi where he agitatedly told
me that he believed Mr. Ruto had been responsible for the crimes against humanity that had been
committed against the Kikuyu civilians in the Rift Valley. Mr. Kiai advised me that ODM would
only receive international support if Mr. Odinga distanced himself from Mr. Ruto. He even
recommended that Mr. Odinga should not appoint Mr. Ruto anything in the event that the
mediation process resulted in a coalition government. This was shortly before the peace
agreement was signed between Raila/ODM and Kibaki/PNU on February 28th, 2008. And Mr.
Kiai was speaking as if he was issuing threats to the ODM leadership.
I did not – and still do not - believe what Mr. Kiai told me that day. When I discussed Mr.
Kiai’s sentiments with Mr. Odinga around the same time, the latter agreed with me that Maina
must have been mistaken. The matter, as far as I was aware, rested there. I did not pursue Mr.
Kiai’s allegations in any way. I never made inquiries from Mr. Ruto or others about them. But I
have always wondered how Mr. Kiai could have managed, within less than one month from the
date the post-election violence broke out – and without having conducted competent criminal
investigations - to have singled out Mr. Ruto from all the ODM and PNU leaders, for blame. Yet
in the months and years that would follow my accidental encounter with Mr. Kiai at the Java
Restaurant in Gigiri, Nairobi, this apparent isolated anti-Ruto sentiment would eventually
141
develop into a crescendo, with virulent allegations from Ms. Martha Karua and others that Mr.
Ruto was guilty of the deaths and forced displacement of thousands of Kikuyu civilians in the
Rift Valley during the post-election violence.
Unfortunately, although these allegations have often been made baldly in the local Kenyan
media and Internet blogs, their consistent repetition by anti-Ruto elements seemed to have
mysteriously bestowed them with some veneer of credibility. As the saying goes, when a lie has
been repeated so many times, it takes a life of its own, and may sound credible in the end. But in
my view, unless those making these allegations have ironclad evidence, the lie will still remain a
lie.
There is no doubt that the charges facing Mr. Ruto are extremely serious. The tragic events
following the announcement of the Presidential election results of 2007 were unprecedented in
modern Kenyan history. Thousands of innocent Kenyans lost their lives. Lots of properties were
destroyed. Many innocent civilians were savagely attacked, seriously injured, traumatised and
more than 600,000 forcefully displaced from their homes. Those who caused and perpetrated
these crimes against humanity should be prosecuted to the full extent of the law and punished
severely.
From the foregoing, I have detailed my knowledge of the ODM campaigns from 2005 to
2008. I have also disclosed my knowledge, reasonable beliefs and opinion on ODM structures,
the organogram of its formal and informal leadership, as well as its strategies, tactics, policies
and manifesto during the same period. I have done this in order to assist this Court make search
for the truth and make a fair, balanced and just determination on the relevant facts in this case.
If after carefully sifting through the evidence this Court finds, beyond any reasonable doubt,
that Mr. Ruto was criminally responsible for the charges against him, I will respectfully change
my opinion on this matter because this Court is ultimately privy to more evidence and facts than
I. However, it would be wrong and unjust if anyone, including Mr. Ruto, were to be railroaded
and punished merely on account of unsubstantiated rumours and vendetta. For me, that would
constitute a double tragedy and a miscarriage of justice.
142
Conclusion
It is imperative to underline the fact that I have never been a staunch supporter of Mr. Ruto.
More than any other Kenyan I know, I have written and published numerous highly critical
articles against Mr. Ruto in Kenyan newspapers and internet-based discussion fora. I have
publicly criticized him on TV, on radio and in the print media more than twenty separate times,
including repeatedly in my weekly column in the Star newspaper from 2009 to 2011. When Mr.
Ruto fell out with Mr. Raila Odinga, I publicly and consistently supported Mr. Odinga.
However, in all my criticisms of Mr. Ruto, I believe I have been scrupulously fair and
objective. I have also only relied on what I honestly believed to be relevant facts with which I
could substantiate my criticism. A few times, I have also admired Mr. Ruto’s energy, eloquence,
hard work, discipline and focus in whatever he does.
But more importantly, I have been a strong advocate against the culture of impunity in
Kenya. I have strongly, publicly and consistently supported the ICC as a judicial institution, and
the on-going proceedings that were initially against the six Kenyans, and now against the three
before this Honourable Court. In fact, I even attended the court session when Mr. Ruto and his
co-accused appeared at The Hague for the first time in 2010. I still believe that this Honourable
Court is the best forum for those charged with the serious crimes to vindicate themselves, even
though, in law, they have no obligation to prove their innocence, which is presumed throughout
until this competent Court determines otherwise.
As such, my assertions in this Expert Report should not be misconstrued as a defence of Mr.
Ruto against the charges he is facing before this Court. I do not belong to his United Republican
Party (URP). I do not belong to The National Alliance Party of his coalition partner, Mr.
Kenyatta. I do not work for the Government of Kenya in any capacity at the moment. I have
never acted as counsel for Mr. Ruto or Mr. Kenyatta, and I am not performing that function
currently. I have not bee promised any benefits for preparing this Expert Opinion. In addition,
Mr. Ruto has not paid me to say anything on his behalf. I have been retained by Mr. Ruto’s
144
PART IX
The literature and other material used in preparing the Expert Report
Volume One of the Expert Bundle of Documents
1. Terms of Reference for Expert Report on the Orange Democratic Movement (“ODM”)
Organisational Structure, Functioning and Political Campaigns: 2005-2008, dated 4
October 2013 (4 pages).
2. Undated sketch titled: “Annex 4: KEN-OTP-0077-0639” (1 page).
3. Resume of Miguna Miguna (5 pages).
4. Strategic Plan of the “Orange NO Campaign” (13 pages).
5. Orange NO Campaign letter addressed “To Whom It May Concern” (2 pages).
6. Undated Orange NO Campaign document: “Issues for discussion with Orange Leaders”
(1 page).
7. Undated Orange NO Campaign document titled “Real Change” (2 pages).
8. Undated Orange NO Campaign document titled “Devolution” (5 pages).
9. Undated Orange NO Campaign document titled “Corruption” (4 pages)
10. Undated Orange NO Campaign document titled “Reflections on equality concerns of

persons with disabilities” (4 pages)
11. Undated Orange NO Campaign document titled “A Kenya for all of us: Towards an
equitable and Just Kenya” (4 pages)
145
12. Undated Orange NO Campaign document: “Chapter Seven: Land and Property: How
does it affect Kenyans?”(3 pages).
13. Undated Orange NO Campaign document: “Chapter Seven: Land and Property: Analysis
of Section 83, on Land holding by non-citizens” (2 pages).
14. The unregistered “Orange Democratic Movement” press statement dated 24 November
2005 (1 page).
2005 (1 page).
2005 (1 page).
17. Undated document titled: “Orange Democratic Movement: 2005 Constitutional

Referendum List of Honour” (6 pages).
18. Orange Democratic Movement-Kenya (“ODM-K”) Constitution (34 pages).
19. Orange Democratic Movement-Kenya: Draft Manifesto (April 4th, 2007: 34 pages).
20. The Orange Democratic Movement-Kenya Party Election and Nomination Rules (35
pages).
21. Orange Democratic Movement (ODM) Amended Constitution and By-Laws; revised
1/9/2007 (24 pages)
22. Miguna Miguna’s email (migunaattorney@yahoo.co.uk) sent to Sarah Elderkin

(sarahelderkin@hotmail.co.uk), Dave Arunga (d_arunga@yahoo.com) and Susan Utugi
146
(sutugi@yahoo.com) and copied to miguna@migunamiguna.com on Saturday, 24

February 2007 at 19:51 (2 pages) forwarding a copy of a speech I had prepared for Raila
Odinga titled: “The Place of Africa in the 21st Century” delivered at the Sixth Annual
Africa Awareness Month, Mach 2007, Tallahassee and Africa Sister Cities Coalition (18
pages).
23. Miguna Miguna’s email (migunaattorney@yahoo.co.uk) sent to Rosemary Akeyo Odinga

(akeyo@hotmail.com) Re: Bio for Ida Odinga and copied to
“miguna@migunamiguna.com” on Wednesday, 25 April 2007 at 0:11 (1 page),
forwarding a copy of Ida Odinga’s bio data I had prepared (2 pages).
24. Raila Odinga’s speech titled, “What Role Does Ethnicity Play in Africa’s Elective
Politics?” (17 pages).
25. Orange Democratic Movement (“ODM”) Party of Kenya Overall Campaign Budget: 1st
September 2007 to 31st January 2008 in Kenya Shillings (4 pages).
26. ODM N.E.B.’s [National Election Board’s) Parliamentary and Civic Elections Budget for
2007 (1 page).
27. Undated ODM document titled “Revenue” (2 pages).
28. Undated ODM Organogram (1 page).
29. Undated ODM document titled: “The National Party Secretariat” from September [2007]
to January 2008 (6 pages).
30. Undated ODM document titled: “ODM Directory” (1 page).
31. Undated ODM document titled: “May 2007 Voter Registration” (14 pages).
32. Undated ODM “Press Statement Re: Alarming statement by Njenga Karume” (1 page).
33. Raila Odinga’s speech at the launch of his presidential campaign (5 pages).
147
34. Prof. Peter Anyang’ Nyong’o’s invitation letter for the launch of the ODM’s Campaign
Manifesto for 2007 General Elections held at the Kasarani Gymnasium on Thursday, 15th
November 2007 (1 page).
35. Forward to the 2007 ODM Campaign Manifesto (2 pages).
36. ODM’s Vision for the 2007 Campaign/ General Elections (2 pages)
37. Executive Summary of ODM’s 2007 Campaign Manifesto (3 pages).
38. Raila Odinga’s statement contained in the ODM’s 2007 Campaign Manifesto (1 page).
39. Text of ODM’s 2007 Campaign Manifesto (78 pages).
Volume Two of the Expert Bundle of Documents
1. ODM document, “The Real Change,” (2 pages)
2. ODM’s Land Policy for the 2007 General Elections (22 pages).
3. ODM document titled “Regional Coordinators” Updated 8/10/07 (2 pages).
4. ODM’s Appointment Letter to Ms. Judy Kosgei as “Nomination: Deputy Director

Program” dated 1 September 2007 (1 page).
5. Mabadiliko Times (ODM Nairobi Manifesto) Price Ksh. 10 (12 pages).
6. Mabadiliko Times (ODM Nyanza Manifesto) Price Ksh. 10 (12 pages).
7. Mabadiliko Times (ODM Coast Manifesto) Price Ksh. 10 (12 pages).
8. Talking Points for ODM Leaders during 30th September Uhuru Park Rally (13 pages).
9. Programme and Notes of Proceedings of ODM National Leaders Retreat at the Naivasha
Lodge from 30 September to 1st October 2007, sponsored by the National Democratic
Institute (USA) (6 pages).
148
10. ODM’s Appointment Letter to Mr. Silas Simatwa as “Nomination: Regional Coordinator
(Rift Valley)” dated 1st October 2007 (1 page).
11. ODM’s Appointment Letter to Mr. Sam Sigei as “Nomination: IT and System Analyst”
dated 1st October 2007 (1 page).
12. Programme of ODM Regional Coordinators Training Seminar on 5th October 2007 at the
Orange House (1 page).
13. Undated ODM document: “TOR for Regional Co-ordinators” (1 page).
14. ODM Brief for Regional Coordinators on ODM Mission, Vision, Core Values and
Campaign Platform: Workshop on 5th October 2007 at the Orange House, Nairobi (21
pages).
15. Undated ODM propaganda document “1. Background” (8 pages).
16. ODM’s Elections Strategic Action Plan 2007 dated 15th October 2007 (35 pages).
17. ODM’s Appointment Letter to Mr. Philip Galam Godana as “Nomination: Regional
Coordinator (Eastern)” dated 18th October 2007 (1 page).
18. ODM Women Leaders Breakfast with ODM Presidential Candidate Hon. Raila Amolo
Odinga at the Norfolk Hotel, Nairobi on Saturday October 20, 2007 (1 page).
19. Meeting on the Strategic Action Plan on 23rd October 2007 and Members’ Attendance
List (4 pages).
20. ODM’s Elections Strategic Action Plan 2007 dated 15th October 2007 (amended on 23rd,
24th and 28th Oct 2007) (44 pages).
21. Undated ODM document titled “SWOT Analysis: SWOT analysis on the candidate” (2
pages).
22. Undated ODM document titled “Opportunities for ODM” (6 pages).

149
23. ODM’s document “Party Policy and Strategic Unit: ODM Manifesto and Programmes”
presented at a Retreat of 30th October to 1st October 2007 at Simba Lodge, Naivasha,
which was funded by the International Republican Institute (IRI) (30 pages).
24. Undated ODM document “Pre and Polling Day Needs and Activities Team” (7 pages).
25. ODM’s Campaign “Activity Matrix” (12 pages).
26. Progress Report on the ODM Nomination Process by Justice Richard O. Kwach,
Chairman of the National Elections Board dated 17 November 2007 (1 page).
27. Undated document I prepared for Raila Amolo Odinga titled: “Together for Our Country
- ODM 2007: A National Conference of ODM Parliamentary Candidates” (5 pages).
28. Miguna Miguna’s email from “migunaattorney@yahoo.co.uk“ to Rose Lukalo at

“rlukalo@gmail.com” and copied to Edward Oyugi at “edwardoyugi@gmail.com” and to
Rosemary Akeyo Odinga at “akeyo@hotmail.com” dated Saturday, 15 December 2007 at
13:03 “Re: Fwd: Nairobi manifesto” (1 page).
29. ODM’s letter to the Commissioner of Police, Major-Gen. Hussein Ali dated 24th
December 2007 (2 pages).
30. Raila for President Secretariat’s letter to the Chair of the Electoral Commission of Kenya
dated 25th December 2007 (1 page).
31. Report by “Kenyans for Peace with Truth and Justice (KPTJ)” titled “Kenyan Elections
Observers’ Log: December 29-30, 2007” (8 pages).
32. Programme of the “Two Day Orientation Seminar for [ODM] Parliamentarians from 13th
January to 15th January 2008” [at the KCB Karen], attended by William Ruto (2 pages).
33. Speaking Notes [for Raila Odinga] on Strengthening the [ODM] Party (2 pages).
150
34. Press Statement by Raila Odinga on the Progress of Mediation dated 18 February 2008 (3
pages).
35. Acting Together for Kenya: Agreement on the Principles of Partnership of the Coalition
Government and the National Accord and Reconciliation Act 2008 (4 pages).
36. Notes to the Prime Minister, Rt. Hon. Raila Odinga, From the Technical Team (2 pages).
37. Speech by The Right Honourable Raila Odinga, Prime Minister of Kenya and Leader of
ODM titled “A Focused Agenda for the People of Kenya,” delivered at the ODM NEC
and Parliamentary Group Meeting at Safari Park Hotel, Nairobi, on Friday, May 23rd,
2008 (6 pages).
38. Confidential Memorandum from the Technical Team to the Prime Minister, Raila
Odinga, dated 9 June 2008 (6 pages).
39. Confidential “Informal ODM Think Tank: Points to Consider” from the Luo Council of
Elders, Nairobi, dated 20/3/08 (4 pages).
40. Picture of Sylvester Kasuku (ODM’s Director of Policy & Research) and Miguna Miguna
(Director of Policy & Research) at the Raila Odinga for President Campaign Secretariat
standing in front of Pentagon House in Lavington, Nairobi, December 2007 (1 page)
Volume Three of the Expert Bundle of Documents

1. Confidential “Informal ODM Think Tank: Deliberations” from the Luo Council of
Elders, Nairobi dated 20/3/08 (6 pages).
2. “Some Potential Areas of Concern Regarding the Implementation of the National Accord
and Reconciliation Act 2008” by Lawi Obuya on behalf of the Luo Council of Elders,
Nairobi (3 pages).
3. Record of Technical Team’s Meeting Held at [The] Pentagon House on 4th June 2008 at
10:00am (4 pages).
151
4. Orange Democratic Movement’s Constitution (as amended and adopted by the 2nd
Special National Delegates Convention held on 18th December 2008 at the Bomas of
Kenya, Nairobi) (51 pages).
5. The Orange Democratic Movement’s Draft Party Election and Nomination Rules (as
amended and adopted at the 8th National Executive Committee meeting, September
2008).
6. The Orange Democratic Movement’s Draft Strategic Plan: November 2008-October

2011) (19 pages).
7. Undated ODM Propaganda document titled “50 Plus One Lies: Kibaki is a liar: He lies to
Kenyans” (1 page).
8. Undated ODM Propaganda document titled “Campaign Platform” (1 page).
9. Orange Democratic Movement’s List of Parliamentary Candidates in the 2007 General

Elections (5 pages).
10. List of ODM’s Elected MPs: 2008 (3 pages).
11. ODM’s Audit Report Presented to the Independent Review Commission on 19 May 2008
titled “Death of Democracy in Kenya Through the Theft of the 2007 Presidential
Election” (66 pages).
12. Undated ODM Strategic document titled “The Way Forward” (7 pages).
13. Undated ODM Strategic document titled “Mediation Process Framework” (3 pages).
14. Undated document titled “Strategy for Handling [ICC] Deferral Campaign” (2 pages).
15. ODM’s aide-mémoire to the UN Security Council dated 11 March 2011 (5 pages).
16. Miguna Miguna’s letter of resignation from ODM dated 1 September 2012; Miguna
Miguna’s email from “migunagowok@gmail.com” to Peter Anyang’ Nyong’o at
152
“anyongo@yahoo.com” and copied to others on 1 September 2012 at 17:23 Re: Miguna

Miguna Resigns From ODM; Peter Anyang’ Nyong’o’s email from
anyongo@yahoo.com to Miguna Miguna at “mmiguna@migunamiguna.com,” received
on 2 September 2012 at 21:25 Re: Miguna Miguna Resigns From ODM (3 pages).
17. Copy of ODM’s invitation card to Miguna Miguna “To the Official Launch of the ODM
Presidential Campaign. Date 6th October 2007. Venue: Uhuru Park” (1 page).
Volume Four of the Expert Bundle o Documents

1. Miguna Miguna, “Telling Kibaki “NO” on his obsolete utterance,” 29 December 2003 (4
pages).
2. Miguna Miguna, “Railaphobia set to derail Bomas III,” Copyright © 2003 Kenya Times
Media Trust (5 pages).
3. Miguna Miguna, “An open letter to President Kibaki,” 20 September 2005 (3 pages).
4. Miguna Miguna, “Is Kibaki’s Team for Orange?” 29 September 2005 (5 pages).
5. Miguna Miguna, “A case against Wako’s Mongrel,” 4 October 2005 (5 pages).
6. Miguna Miguna, “The president is courting anarchy by disobeying court orders,” 24

October 2005 (5 pages).
7. Miguna Miguna, “Who is paying for Chris Murungaru’s woes?” 27 October 2005 (3
pages).
8. Miguna Miguna, “Paul Muite is wrong again,” 2 November 2005 (3 pages).
9. Miguna Miguna, “Hurray! Ordinary Kenyans won,” 21 November 2005 (3 pages).
10. Miguna Miguna, “We must demand snap elections now,” 22 November 2005 (3 pages).
153
11. Miguna Miguna, “President Kibaki’s firing of cabinet is irregular and unlawful,” 24
November 2005 (4 pages).
12. Miguna Miguna, “Democratic lessons from Canada,” 4 December 2005 (6 pages).
13. Miguna Miguna, “ODM must be prepared to govern,” 5 December 2005 (3 pages).
14. Miguna Miguna, “To President Kibaki – Our Notice of Termination of Employment,” 12
15. Miguna Miguna, “The Registrar of Societies should be charged (A critical look at the
ODM scandal in Kenya”), 28 December 2005 (5 pages).
16. Miguna Miguna, “Can Kibaki take responsibility for anything?” 29 December 2005 (3
pages).
17. Miguna Miguna, “We need a Loya Jirga; not a full-blown constituent assembly,” 31
18. Miguna Miguna, “LDP’s example is a fresh breath of democratic air,” 4 January 2006 (3
pages).
19. Miguna Miguna, “Dangerous arachnidan political liaisons,” 8 January 2006 (3 pages).
20. Miguna Miguna, “Before healing can begin, let all the poisons be exposed,” 14 January
2006 (4 pages).
21. Miguna Miguna, “Declarations by Kalonzo, Raila and Ruto are good for democracy,” 17
January 2006 (3 pages).
22. Miguna Miguna, “Corruption trails end at State House door steps,” 22 January 2006 (3
pages).
23. Miguna Miguna, “World Bank money is not deserved by Kibaki government,” 25
154
24. Miguna Miguna, “Can LDP and ODM reconvene parliament on their own?” 29 January
2006 (3 pages).
25. Miguna Miguna, “Of treason threats and political tantrums,” 30 January 2006 (3 pages).
26. Miguna Miguna, “The Goldenberg Report leaves lots of questions unanswered,” 4
February 2006 (4 pages).
27. Miguna Miguna, “Consign Kibaki regime to permanent oblivion,” 7 February 2006 (5
pages).
28. Miguna Miguna, “The political charade is unacceptable,” 13 February 2006 (4 pages).
29. Miguna Miguna, “The people of Kenya deserve accountability from the government,” 17
30. Miguna Miguna, “Kenyans deserve details of the hooded interahamwes,” 6 March 2006
(3 pages).
31. Miguna Miguna, “Governance through crisis and confusion is deliberate,” 31 March
2006 (4 pages).
32. Miguna Miguna, “Moi’s political midas expired in 2002,” 5 June 2006 (3 pages).
33. Miguna Miguna, “The Artur Brothers could be terrorists: Why are we deporting them?” 9
June 206 (4 pages).
34. Miguna Miguna, “To get out of this conundrum, we must set up a special independent
court,” 2 July 2006 (3 pages).
35. Miguna Miguna, “Bill Ntimama maybe hawkish but he has a point,” 4 July 2006 (3
pages).
155
36. Miguna Miguna, “A hypothesis of what Artur, Artur & Co. were brought here for,” 7
July 2006 (3 pages).
37. Miguna Miguna, “Turn off the war drugs; Kenya is not for hounds,” 16 July 2006 (3
pages).
38. Miguna Miguna, “Major problems with the Saitoti decision,” 31 July 2006 (4 pages).
39. Miguna Miguna, “With the electoral violations we’ve seen, Nark-K has good reason to
call for a snap poll,” 1 August 2006 (3 pages).
40. Miguna Miguna, “These are foul travesties of justice,” 8 August 2006 (3 pages).
41. Miguna Miguna, “Opinion polls are not the best bellwether of voters’ choice,” 10 August
2006 (3 pages).
42. Miguna Miguna, “Call for campaign financing reforms is welcomed,” 27 August 2006 (2
pages).
43. Miguna Miguna, “Washing dirt with oil; the quest to cleanse evil by inquiry,” 29 August
2006 (3 pages).
44. Miguna Miguna, “Why the civil society road-map ends in a cul-de-sac,” 31 August 2006
(3 pages).
45. Miguna Miguna, “The type of leader Kenyans deserve,” 21 October 2006 (3 pages).
46. Miguna Miguna, “The merchants of death are back; we have a failed state,” 12 November
2006 (2 pages).
47. Miguna Miguna, “The case of two short scruffy men and Napoleonic syndromes in
Kenya,” 29 November 2006 (3 pages).
48. Miguna Miguna, “Why democracy has not taken root in Kenya, the rule of law fickle and
judicial independence fleeting,” 10 December 2006 (3 pages).
156
49. Miguna Miguna, “Why Prof. Saitoti’s mathematical equation is off the political mark,” 1
50. Miguna Miguna, “Six issues that will determine who becomes president in 2007,” 7
51. Miguna Miguna, “Is Raila a stumbling or a charging, resilient ODM-K horse?” 23
52. Miguna Miguna, “Human beings cannot be owned, Bwana Nyachae,” 9 February 2007 (2
pages).
53. Miguna Miguna, “The Kenyan judiciary permits itself to be used by the executive,” 16
54. Miguna Miguna, “ODM-K stumbles as Kibaki replaces NARC-K with handshakes,” 8
March 2007 (3 pages).
55. Miguna Miguna, “Is Kalonzo a fox or a chameleon?” 24 March 2007 (3 pages).
56. Miguna Miguna, “Waiting for Moi: Predicting how the self-declared Professor of Politics
may vote,” 26 March 2007 (3 pages).
57. Miguna Miguna, “Take out your guns: The Armenians are coming,” 17 April 2007 (4
pages).
58. Miguna Miguna, “The real reasons why Orange House is on fire as Kibaki tries to rig
himself back,” 12 May 2007 (6 pages).
59. Miguna Miguna, “Kenya deserves the best to lead her into prosperity,” 21 June 2007 (2
pages).
60. Miguna Miguna “Why Uhuru’s stand on KANU is good for democracy,” 22 July 2007 (4
pages).
157
61. Miguna Miguna, “Ten strategic mistakes over Kalonzo Musyoka’s presidential
candidature,” 14 August 2007 (3 pages).
62. Miguna Miguna, “The right to vote should be entrenched in the constitution,” 22 August
2006 (2 pages).
63. Miguna Miguna, “Say no to ethnic hatred,” 12 December 2007 (2 pages).
64. Miguna Miguna, “Tribalism and corruption are our worst problems,” 12 December 2007
(3 pages).
65. Miguna Miguna, “The first lady disgraces Jamhuri Day,” 14 December 2007 (3 pages).
66. Miguna Miguna, “Kimunya lies through his teeth about Anglo Leasing,” 16 December
2007 (2 pages).
67. Miguna Miguna’s article “Kibaki Chickens out of a Live Debate” dated 11 December
2007 (2 pages).
68. Miguna Miguna, “What exactly did the cabinet decide on the special tribunal?” 12
August 2009 (3 pages).
69. Miguna Miguna, “Who are responsible for these grisly [sic] carnage?” 14 October 2007
(2 pages).
Volume Five of the Expert Bundle of Documents
1. Babafemi A. Badejo, Raila Odinga: An Enigma in Kenyan Politics (Nairobi,

Kenya: Yintab Books, 2006).
2. Joe Khamisi, The Politics of Betrayal: Diary of a Kenya Legislator (Nairobi,

Kenya: Trafford Publishing, 2011).
158
3. Daniel Branch, Kenya: Between Hope and Despair, 1963-2011 (New Haven and
London: Yale University Press, 2011).
4. Gabrielle Lynch, I Say To You: Ethnic Politics and the Kalenjin in Kenya
(Chicago and London: The University of Chicago Press 2011).
5. Miguna Miguna, Peeling Back the Mask: A Quest for Justice in Kenya (London,
UK: Gilgamesh Africa, 2012).
6. Miguna Miguna, Kidneys for the King: de-Forming the Status Quo in Kenya
(Richmond Hill, Ontario: Integrity Books, 2013).
7. Raila Odinga, The Flame of Freedom (Nairobi: Mountain Top Publishers Ltd,
2013)
8. Ref: Prof. Daniel Branch & Dr. Nic Cheeseman, “Uhuru Confronts devolution a
century after his father,” Sunday Nation, October 20, 2013, pp. 17 & 18.
PART X
10. Mr. Miguna Miguna’s sketch/organogram of ODM leadership structure dated Oct. 24,
2013, Vol. 5, Tab 9

Expert Report by Miguna Miguna (First Draft Dated 24 Oct 2013)

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Confidential

Prosecutor v. William Samoei Ruto and Joshua Arap Sang

EXPERT REPORT ON THE ORANGE DEMOCRATIC MOVEMENT

Prepared on 24 October 2013

Item Description Page No.

b) The final break-up and collapse of the NARC 45

1. INTRODUCTION: CASE INFORMATION

2. ROLE AND DUTIES OF AN EXPERT WITNESS

3. SCOPE OF THE EXPERT REPORT

4. QUALIFICATIONS AND BASIS OF EXPERTISE

• I am an adult of sound mind.

• I have no criminal record.

• I am not facing any criminal charges.

• Attended Apondo Primary School (1971-1978), Onjiko Secondary School (Ordinary

• Between September 1986 and 13 November 1987, I studied Political Science,

• On 3 April 2008, I was admitted to the Kenyan Bar.

b) Relevant political background, experience and expertise

• Joint Secretary to the Permanent Committee on the Management of Grand Coalition

• Coordinator of the Prime Minister’s Strategic Teams (Informal: March 2009-2011).

• Member, ODM Strategic Team (Informal: April 2008-2011).

• Member, ODM Legal Team (Informal: April 2008-2011).

• Coordinator, Rapid Response for ODM in North America (Informal: 2007).

• Covenant/Life Member of the Orange Democratic Movement-Kenya (“ODM-K”) in

• Supported the “Orange NO Movement” during the 2005 constitutional referendum in

• Resigned from the ODM on 1 September 2012 (Formal).

• Regular contributor op-ed contributor on political, social, constitutional and legal

• Regular contributor to The Kenya Times newspaper (published hundreds of op-ed

• Adviser to the ODM Party Leader/Captain and Presidential Candidate, Raila

• Coordinating Secretary of the Committee for Democracy in Kenya (Formal: 1988-

• Finance Secretary of the Students’ Organisation of Nairobi University (SONU) and an

• Elected Representative of the Bachelor of Arts Faculty, University of Nairobi, Kenya

• Vice-Chair of the Kisumu District University Students’ Association (Formal: 1986-

Ref: TOR; Expert Bundles of Documents, Vol. 1, Tab 1, , p. 1, para 5

5. THE CONTENT OF THE REPORT

a) Formation and Structure of the “Orange Democratic Movement”

i) Relevant historical background: The genesis of the Orange Democratic Movement

In a nutshell, NARC collapsed due to three main reasons.

My opinion, based on my research, independent recollections and reflections is that Moi

ii) ECK Chairman Samuel Kivuitu’s Orange Gift to Kenya

iii) The Orange NO Campaign assembles an impressive and diverse team

My assessment, based on independent knowledge derived from decades of political

iv) The crystallisation of the ODM Platform

Wako draft prepared unprocedurally without public participation

• greatly increased presidential powers…because he [Kibaki] would have powers to

• reduced devolution (of power and resources) to delegation[…]

Seeking real change through a new people-focused constitutional order

Devolution/Majimbo was never about ethnicity or ethnocentricity

The Orange NO Campaign directly attacked centralization of power in Nairobi under an

Also addressed were perceived “falsehoods on devolution/majimbo” debate that ODM

Ref: ODM document titled, “Devolution;” Expert Bundles of Documents, Vol. 1,

In my view, the attempt to demonise, stigmatise and criminalise devolution/majimbo

Ref: ODM document titled, “Corruption;” Expert Bundles of Documents, Vol. 1,

Issues of equality regarding persons with disability

Towards an equitable and just Kenya

vi) Najib Balala coined the phrase “Orange Democratic Movement”

vii) The Orange NO Campaign/ODM Strategy in 2005

In the end, the Orange NO Campaign/ODM offered itself as an alternative leadership to a

viii) How the issue of land and property was tackled

Ref: Orange NO Campaign document: “Chapter Seven, Land and Property:

ix) Raila Odinga approached William Ruto to join the ODM

x) The Orange NO Campaign/ODM was issue-and-fact-based

My recollection, research and review of relevant literature of the Orange NO

xi) The Orange NO Campaign/ODM Secretariat’s physical address and

I am not aware of any leadership structure or hierarchy of the Orange NO Campaign/ODM.