Coup plotter or victim of power struggles?

On Thursday, March 19, 1981, Kenyans woke up to the news that a Nairobi businessman, Andrew Mungai Muthemba, had been charged with attempting to overthrow the government.

Mr Muthemba, a bespectacled camera-shy engineer, was accused that between December 15 and February 23, he had “compassed, imagined or intended to depose by unlawful means” President Moi from his position as President of Kenya.

The Muthemba case came at a time when Moi was getting paranoid about schemes to remove him from power.

In April 1980, President Moi had warned would-be dissidents and those “scrambling for power” that he would lock them up if they did not toe the government line.

It was in that political jumble that Attorney-General James Karugu and Chief Public Prosecutor Sharad Rao sought an urgent appointment with the president.

The two, it is now known, had disagreed on what to do with Muthemba’s flirtation with some military personnel.

What was known at that time was that between December 15, 1980 and February 23, 1981, Muthemba had tried to get Corporal Joseph Njiru Shimba to steal 10 hand grenades, 10 remote control devices, and an unspecified number of aircraft bombs.

Weapons

He had also tried to get Captain Ricky Waithaka Gitucha to steal 100 grenades, mortars, machine guns and ammunition, rifles, plastic explosives, bomb timers, and remote control devices.

But why would a civilian try to get all these weapons?

“As far as I am concerned,” Muthemba would tell the Chief Magistrate, Fidahussein Abdullah, as the case opened, “I was performing my duty. I was not doing it for my own ends.”

For the police, this explanation did not add up.

Muthemba had told them that he was investigating — with the “knowledge” of Charles Njonjo, then powerful Minister for Constitutional Affairs — the illegal acquisition of citizenship, work permits, illegal foreign exchange transactions, and smuggling of arms and ammunition.

On March 31, 1980, when Njonjo was still the Attorney General, Muthemba had gone to see him regarding currency smuggling.

Whether they discussed any other matter is still in contention. “When Muthemba came to my office, the then deputy public prosecutor, Mr Karugu, was around.

Muthemba said there was talk about smuggling of foreign exchange,” Njonjo would admit in court. “I never asked Muthemba to carry out investigations.”

Njonjo also marked

If Muthemba decided to expand his investigations, he must have thought that Njonjo would save him. He did not know that Njonjo was also a marked man.

That day, Njonjo recalled, he picked up the phone and called a Mr Shapi, an assistant commissioner at the Central Bank’s exchange control branch, and asked him to investigate Muthemba’s claims.

“Muthemba at that time did not talk of anything else.

He did not visit me again when I was Attorney-General. He has never visited me in my residence and he has never discussed with me anything about smuggling of arms…”

When Muthemba decided to carry out “investigations” on the arms smuggling, he recruited Dickson Kamau Muiruri to source the military hardware for him, arousing the interest of the Special Branch — led by James Kanyotu — which got wind of the request.

As Muiruri, through a Mr Kamau Georges, approached Cpl Joseph Njiru Shimba, a supplies officer at the Kenya Airforce, to steal the arsenal for him, he again triggered the interest of Special Branch officers.

Cpl. Shimba had never dealt with military hardware before. He was only involved in the supply of bedding, uniforms, liquid oxygen, and motor vehicle spare parts.

“I had never dealt with armaments before,” he would later say.

Nail Smugglers

On the day Njonjo appeared in court during the Muthemba trial, he admitted to have authorised Muthemba to liaise with Shapi to nail the currency smugglers.

“At that time, it was interesting because the majority of people at the time were interested in smuggling.

This appeared to be a genuine desire with a sense of commitment on the part of Muthemba,” said Njonjo.

Muiruri had also approached Captain Ricky Waithaka Gitucha with similar requests on behalf of Muthemba.

Gitucha, alarmed by the range of weapons requested, sought to meet with Muthemba. They met on February 4, 1980 at 11.29 am.

He adopted the name Richard Kariuki and started filing intelligence reports. During this meeting at Muthemba’s sixth floor office at Diamond Trust building, they talked of a group that was plotting to overthrow Moi and had acquired a few items — hand grenades and timing devices — which were hidden in Nanyuki. Muthemba, who had graduated from Russia’s Friendship University in 1965, wanted a quotation on 100 M36 hand grenades, smoke grenades, mortars, and bombs.
“He told me they were planning for a group of 50 people and their training was in Ndeiya Forest, but they need some experts,” said Gitucha.

Proper investigations
It is believed that Gitucha brought the matter to the attention of the Kenya Airforce Commander, Major General Peter Kariuki, and the Chief of General Staff, General Jackson Mulinge, who directed proper investigations.
On February 19, 1981 Capt Gitucha was introduced to Senior Superintendent Moses Mimano of the Special Branch by his boss, Kassim Rashid Salim, and was instructed to go and visit Muthemba and get to the bottom of this request.
“Before leaving, Capt Gitucha was fitted with a microphone transmitter,” Mimano would later reveal.
The airforce captain drove to Muthemba’s office and was followed by Snr Supt Mimano in another car.

They parked outside and Mimano prepared to tape the conversation from his car.
While the recording was not clear, Mimano had an officer transcribe the discussions. One statement stood out in the conversation: “Bata no mundu uyu ehere” (The important thing is that this man goes). This was encouragement for Gitucha to act quickly.

“This man”, Gitucha thought, meant President Moi.

Muthemba was rich and well-connected. A millionaire in his own right, he owned Kentazuga Hardware stores, a building in Nairobi’s central business district, and was a big supplier to the government.

He had also been involved in regional businesses in Uganda.

Four days after he was tape-recorded, police arrived at his office and took away documents containing the telephone records of his secretary, Miss Margaret Ouko.

Muthemba was taken to Special Branch headquarters where he recorded the statement mentioning Njonjo’s name.

In his statement, Muthemba had claimed to have informed Njonjo, Police Commissioner Ben Gethi, and CID chief Ignatius Nderi, about his investigations.

The truth of these claims has never been established since the investigating officer did not follow it up.

Denied utterances

But Nderi would later say that Muthemba told him: “These things are now ready, this man must go. He is no good. Njonjo is the right man.”

Muthemba denied uttering any such words to Nderi in their meeting.

But Njonjo knew Muthemba better than the investigating officers. Njonjo’s mother and Muthemba’s father had the same father but not mother, and so were distant cousins. Occasionally, Muthemba would have meetings with Njonjo to discuss business, politics, and personalities.
It was the dropping of Njonjo’s name into the case that raised political eyebrows and which would partly be used later as the rehearsal for his fallout with Moi.

Nairobi’s celebrated criminal lawyer, Byron Georgiadis, who acted for Muthemba, said his client had naively dropped Njonjo’s name in the hope that the Special Branch would release him.

There was a reason for that.

Njonjo had helped Moi purge the security system previously dominated by some of his opponents and had become one of the most powerful ministers in the early Moi Cabinet.

That Muthemba was Njonjo’s relative complicated the case further.

At the State Law Office in Nairobi, James Karugu, the Attorney-General, and Sharad Rao, the Deputy Public Prosecutor, differed on how to proceed with the case.

Njonjo, it would later be alleged, wanted the charges against his cousin substituted with a lesser offence, but Karugu — who wanted to cultivate the image of an independent AG, declined.

The fallout was so bad that both Karugu and Rao went to State House to see Moi over the kind of charges to be brought against Muthemba and his co-accused, Dickson Kamau Muiruri.

Mr Rao’s view at that time was that a treason charge would not be sustained. During the State House meeting, Moi listened to the two.

“He told us it was a sensitive matter and that the two of us ought to give it very serious consideration.

On our way back from State House, I told Mr Karugu that in view of that advice, we ought to very seriously reconsider the position… In his office, I told him that he ought to take over the prosecution and that I would assist him,” Rao would years later reveal.

Thus the holding charge of “attempting to steal” had to be substituted with treason.

While Muthemba was the accused, Njonjo believed that the main motive of the Special Branch was to besmirch his image and ruin him politically.

“I have been Attorney-General for 18 years, and it was the first time a treason case has been mounted on Special Branch investigation,” said Njonjo, who was surprised that neither the Special Branch, the Criminal Investigation Department, nor Karugu’s office had told him that he was mentioned in Muthemba’s statement.

Njonjo and Karugu were to have frosty relations from then on and the AG got frustrated in his office, leading to his resignation.

By Muthemba’s side, as the trial commenced, were Nairobi’s most celebrated criminal lawyers — Georgiadis and S.M Otieno.

The next drama was when Rao thought that he should not bring to the attention of the AG Muthemba’s incriminating tape recording.

Rao thought the tape was “unsatisfactory as evidence”, a goof that was to haunt him during the commission of inquiry into the activities of Njonjo set up in 1984.

The chairman of the commission, Mr Justice Cecille Miller, had no kind words for Rao on why he withheld the tape: “I am sorry to speak to you like this.

You had closed your eyes, and you gave your eyes to somebody else with which that person could sleep… it is a mandatory dictate that the judge and jury should hear the tape audible or not audible, thereby to assess its evidential value.

You were prosecutor and judge at the same time… I have nothing against you. But don’t come here, on oath, and try to tease us.”

Rao was opposed to Muthemba’s treason charge from the beginning, yet he was to lead the prosecution, assisted by Kihara Muttu.

Years later, he admitted that the tape would have been the best evidence to enlighten the court about whether Muthemba uttered the “this man must go” phrase.

Whether Muthemba was a man interested in nabbing smugglers or whether he was, in reality, planning a coup was never known.

Case was weak

During the ruling, Mr Justice A.H Simpson said he was “concerned more with words than with acts. Words may explain an act showing with what intention it is done.”

But with the tape recording missing from the evidence, Muthemba’s case was generally weak.

Even after he was acquitted, Muthemba maintained that he had no intention of overthrowing the government.

“I know it seems crazy to buy arms from the Armed Forces, but my intention was to prove what I just said.

If I had succeeded in getting even one round or one grenade, I would have handed it to the police and informed Njonjo,” he said a few years later.

“I agree that to convince Shimba and Gitucha I pretended that I was a disgruntled man, but I never mentioned the name of His Excellency nor minister.’’

He said the words ‘‘ get rid of big man’’ in the tape were used by the soldier and not him.

“I may have given the impression I agreed in order to induce him to make the delivery,” he said.

Many years later, this writer met Muthemba before he died in 2003, after seeking him out for an interview to shed some light on the puzzle.

“What you are asking will only be asked in heaven. I am born-again and in a different kingdom. That chapter is closed. What I did was for the good of the government,” he said.