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Ouko: Mbaja's Affidavit (fwd)

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Dr. Matunda Nyanchama

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Feb 17, 2000, 3:00:00 AM2/17/00

STATE OF WASHINGTON JURAT

COUNTY OF KINGS

AFFIDAVIT OF ESTON BARAK MBAJAH

ESTON BARAK MBAJAH, being first plead under oath, swears that the
following facts are true and correct.

I am ESTON BARAK MBAJAH and I am from Kisumu, Kenya.

I submit this Affidavit to the Commission hearings currently tak-
ing place in Kisumu, Kenya.

I am the fifth born of a family of eight children. My late broth-
er, Dr. Robert John Ouko, was the eldest of the chlordane in the
family followed by two deceased sisters, and one living sister. I
have three younger brothers. Our parents are the late Erasto Seda
Ayieko and Mama Susana Aloo Seda. We were brought up in a Chris-
tian home and all of the children went to Christian schools and
were united as a family.

My late brother, Dr. Ouko, took care of the entire family since
he was the first-born and, following tradition, looked after the
younger sisters and brothers. My father died ln March 1986 which

left my late brother with a lot more responsibility. My late
brother was first a teacher for many years, and joined the civil
service in 1962 after graduating from Oxford University. At that
time, 1962, he helped me to come to America for my University de-
gree. I returned to Kenya in 1967 after getting a degree in pol-
itical science and sociology and minoring in public administratlon.

Upon my arrival ln Kenya, I joined the Civil Service where I
worked for twenty-three (23) years before I fled the country
after the brutal murder of my late brother.

I was arrested, confined for five (5) days and nights, and
severely beaten by Kenya Security after I refused to cooperage
with them in covering up the assassination.

I was informed by my late brother, and believe that in February
of 1990 the President of Kenya and a few other mlnlsters and oth-
er top civll servants visited America on a private visit. Includ-
ed in the President's team was my late brother, Dr. Ouko, who was
the minister for Foreign Affairs and International Relations.
Prior to the visit Dr. Ouko had informed the President that the
visit would not be pleasant and that it should not take place be-
cause Kenya's human rights violations were having strong reper-
cussions in other countries, especially in the United States. The
advise was ignored and the trip took place.

I wag informed by my brother and I believe that during their stay
in America, there erupted a very strong dispute between my late
brother and Minister Biwott over various issues. The main issue
was the foreign accounts Biwott and other government ministers
held in other countries. My brother was of the opinion that the
millions of dollars in foreign banks should be brought back to
Kenya to be circulated to help in the development of our country.
Biwott was so enraged that he threatened my brother while they
were in America, stating that he had had enough of him (my broth-
er), and this time he would pay the price very heavily. The
President, who is very close to Biwott, also told my late brother
that it is not for him (my late brother) to decide on what was to
be done with the foreign accounts the government ministers are
holding outside the country. The President indicated that this
amounted to interfering with Presidential responsibility. The re-
lationship became so strained ! throughout their visit, that on
the

eir way back to Kenya, they were not on speaking terms--that is,
my late brother with Biwott and the President.

I was lnformed by my late brother and I believe that after arrivlng
from America, my brother's passport was seized at Jomo
Kenyatta International Airport, Nairobi by Security officials.
This is when my brother started realizing that he was in extreme
danger.

My brother telephoned me that evening and told me all about their
trip to America. He told me that now he was in serious danger be-
cause he did not know what the government would do next, after
seizing his passport and after having been told that his move-
ments would be strictly monitored from then on. He told me that
he was so worried about his life, and especially the future of
his children who are stall far from finishing their education. He
further told me that the President had called him to State House
to talk to him, and the President had ordered him to go to State
House with his Permanent Secretary.

I am informed, and believe that on the following day he went to
State House as ordered by the President. The President told him
that he was very unhappy with him for undercutting his powers and
for having revealed in America that the government ministers are
corrupt, and this the president took to mean that the president
himself is also corrupt by having corrupt government ministers. My
late brother told the president that "with all due respect, I
respect you, I know you have done a good job, but we must ad-
dress ourselves to the areas of corruption, because if we don't
the Kenya economy will definitely collapse." I am informed and
believe that at that point in time the President ordered my late
brother to go to his home in Koru and stay there until further
notice.

The President told my brother that forthwith he had been
suspended as Minister for the kind of statement he had made at-
tacking his own cabinet colleagues.

Thus, as my brother left State House to go to Koru, he was no
longer a government minister but an ordinary member of Parllament.
Because he was no longer a government minister, the govern-
ment security were removed by the government. He was left un-
guarded and unprotected on the day he was murdered.

I was lnformed by my brother and I believe that my brother, while
on leave, tried often to contact the President and let the
President know that he (my late brother) was not a man who wanted
the government to collapse, but was only concerned about the fu-
ture of Kenya and the future of the people of Kenya. His efforts
became fruitless because each time he tried to see the President,
Mr. Hezekia Oyugi, the Permanent Secretary in the office of the
president made sure that it did not happen.

I was informed by my brother and I believe that my late brother's
last effort to try to speak with the President occurred just a
week before he was murdered. He had gone to Kericho to see the
District Commissioner, Mr. Lagat, who is a nephew of the
President, to help him contact the President. He was in the
District Commissioner's house before 7:00 in the morning and
found the District Commissioner, who, after giving him a cup of
tea, asked him what he wanted. Dr. Ouko told the District Commis-
sioner "I want to talk to the President, and since you are relat-
ed to him, I want you to ring him and tell him that I am here and
I would like to talk to him."

I am informed by my brother and I believe that the District
Commissloner (D.C.) instead rang Oyugi who is also the one in charge
of Internal Secretly. Oyugi told the D.C. to inform my late
brother that the President does not want to talk to him. My
brother was very upset and decided to drive back to Kisumu.

I am informed and believe that a plan had already had been
hatched for him to have a mysterious road accident and indeed, on
his way back to Kisumu, a lorry came on his way and rammed his
vehicle so hard until it went into the ditch. The driver drove
away without stopping at all, even though the law requires one to
stop in this situation. He probably left him for dead.
I was informed by my brother and I believe that my late
brother's last effort to try to speak with the President occurred
just a week before he was murdered. He had gone to Kericho to see
the District Commissioner, Mr. Lagat, who is a nephew of the
President, to help him contact the President. He was in the
District Commissioner's house before 7:00 in the morning and
found the District Commissioner, who, after giving him a cup of
tea, asked him what he wanted. Dr. Ouko told the District Commis-
sioner "I want to talk to the President, and since you are relat-
ed to him, I want you to ring him and tell him that I am here and
I would like to talk to him."

I am informed by my brother and I believe that the District
Commissioner (D.C.) instead rang Oyugi who is also the one in charge
of Internal Security. Oyugi told the D.C. to inform my late
brother that the President does not want to talk to him. My
brother was very upset and decided to drive back to Kisumu.

I was informed by my late brother and I believe that during the
week in which the accident occurred there was a Presidential trip
to-Central Province. The late Ouko left his Koru home in the ear-
ly morning to travel to Central Province and join the Presiden-
tial Team, only to be told that the President did not want him
there. The petrol attendant who saw the deceased, testified to
this effect.

On February 14, 1990 at midnight while still watching a football
game on video at my house in Nairobi, I received a call from Her-
ine Ogembo, who lnformed me that another person called Eric
Onyango had informed her that night that my late brother was
missing and probably kidnapped by unknown people.

My efforts to reach anybody to tell me what had happened to my
late brother were not easy. I rang various police stations in
Kisumu, but each one of them told me that they had no idea that
my late brother was missing. My wife and I never slept that night
and the following day, the 15th of February, I went to the Attor-
ney General's chambers, where I worked, and informed my immediate
boss, who was the Solicitor General, Mr. Kubo.

That morning after coming back from the house of the Attorney
General, I received a message by my secretary telling me that
Arap Leting, Permanent Secretary and head of Public Service,
wanted to see me urgently. I received a similar message from Per-
manent Secretary of Foreign Affairs and International Relations,
Mr. Kiplagat-

I went first to see Leting, who officially informed me that my
brother was missing. He further informed me that from the informatlon
he had received from Director of Criminal Investigation,
Mr. Too, my brother had taken the key from his bodyguard and left
very early that morning of 13 February 1990. Leting further
directed me to ring him as soon as I arrived at Koru. This
informatlon was discussed during the Ouko Inquiry Commission.

When I went to see Kiplagat, he informed me that my brother was
missing and there was conflicting information about his disap-
pearance. He further told me that he saw him last when he joined
him at State House to go see the President. He told me to go
since he was also sending his officers to find out where the Min-
ister was. He further said that "I hope he did not leave the
country," I left there and drove to Koru.

Later on that day, my wife and I, with a government vehicle and a
government driver, left for Kisumu and were there by 4:00 PM. We
found a lot of security officers seated in the compound and oth-
ers were searching the bushes around the home to look for my
missing brother. Immediately I went in the house. I knew for sure
that my brother was not missing but was dead.

Having been a very high ranking government officer, and having
been Chairman of various District Security committees, I had
worked with very many police officers in my capacity as their
boss ln various districts and provinces. Some of these police
officer were involved in investigating the disappearance of my
brother. So I became very keen having known how the government
works in such matters to trail every movement of these officers
who were involved in the investigation. I asked a few of those
officers who had worked under me in the past, to tell me why they
were searching the house, picking up all the books and checking
in the and carrying away my brother's files. Two of them told me
that they were looking for a possible suicide note. Then I told
them "lf you are definitely looking for a suicide note, does that
mean that my late brother has committed suicide?" And they said,
that'-s what their bosses have told them to look for, and if I
want any more information, the President will make an announce-
ment the following day, which would be the 16th of February 1990.

As a senior government officer who knows the government inside
and out, and who knows how the government operates, here my
brother is missing and already they are looking for suicide notes
before we are told what has happened to him. I knew there was
something wrong.

I started interviewing my late brother's workers. Most of them
were willing to talk, and told me quite a few leads as to what
took place, but others had already been warned that they had no
authority talking to anybody, including me.

The house girl, who is related to me, known as Selina, had given
me a small note written by my late brother which he left for her
to give, to me personally. In this note my brother informed me
that he had been called by Mr. Oyugi and told that Oyugi would
help him escape from Kenya because the President was not ready to
forgive him. My late brother told me he was suspicious in the
manner that these people wanted him to leave the house. The peo-
ple who went to collect him were JOHANA ANGUKA, District
Commissioner of Nakuru, GEORGE ORARO, Advocate, and PAUL GONDI a
banker assisted by ERIC ONYANGO. They collected my brother in the
morning of the 13th of February 1990 with instructions that they
were going to hand him over to Oyugi who was waiting for him and
Minister Biwott. That was the last time my brother was seen alive
until the President announced that his body was discovered a few
kilometres from his home shot and burnt beyond recognition.

It is, therefore, the duty of Hezekia Oyugi, Minister Biwott,
Johana Anguka, George Oraro, and Paul Gondi to tell Kenyans and
the world where my brother went that morning. It is also Oyugi's
responsibility as the one in charge of the Kenya Internal Securi-
ty to state why they withdrew all the security officers guarding
my late brother on the day before he was collected from the house
and taken to the murder chambers.

I am informed and believe that during the initial stages and
after my late brother's body was discovered, it became known to
Oyugi that I had a note which had been written by my late brother
and given to me by Selina.
Oyugi called me into his office and asked me if I would like to
help the government to go through this period of difficulties
after the murder of my late brother. Then I asked him what he had
in mind. He told me if I could cooperage with them to cover the
murder of my late brother, I would be given various assistance
including paying for the school fees and any necessary allowance
to my son who was then a student, studying outside Kenya. I was
also promised that I would be elected as a member of Parliament
where my brother was and be made a Minister. I told Oyugi that
this was impossible, that those who killed by brother must be put
to book and taken to court and that I am not going to sell the
blood of my brother at any cost. I believe that I was then con-
sidered an enemy of the government and that the first thing the
government wanted to do was to try to get this note which I had
been given. I had taken this note and kept it in my office. I
knew, it belong a government of! office, no thorough search was go-
ing to be made. I had put the note under the carpet of my office
and thought lt was safe there. At that stage, the government
withdrew my foreign currency for paying my son's school fees, so
my son had a problem staying in the University because I could
not send payment. I believe that my movements were now being mon-
itored on a 24 hour basis. I was being followed everywhere. On
the 28th of March 1990 I was arrested soon after leaving the
hospital and was taken straight to the Criminal Investigation
Department Headquarters where I was detained. I was asked about
the note and why I was not able to help the government come out
of this troubled moment following my brother's murder. First I
refuted halving any knowledge of the note. That is when they went
to my house, arrested my wife, and my house boy, and thoroughly
searched my house to look for this note. They did not find it.
They went to Nyahera home in Kisumu and searched it in our ab-
sence and dld not get the note. Instead the police officers loot-
ed my house and took an unspecified number of items.

I was stripped naked, and thoroughly beaten and received various
inhuman treatment. They led me to my office at the Attorney
General's chambers. We were in my office at 3:00 PM and they
searched my office from 3:00 to midnight, eventually getting the
document which mentioned the names of the people who picked my
brother up from the house. The note also talked about the seizure
of my late brother's passport and the suspension of being a Min-
ister. So when my brother was buried, the burial ceremony was not
that of a Senior Cabinet Minister, and that indicated very clear-
ly that at the time my late brother died, he was no longer a Min-
ister.

While in police detention, I wrote two statements. The first
statement I wrote was taken by the Criminal Investigation Depart-
ment officer known as Kariuki. Kariuki was involved in this
investigatlon initially and he was the one who came when the body
of my late brother was to be moved from the scene of the murder.
He was the one who was taking samples. I saw him personally tak-
ing grass from around my brother's body, and he took several sam-
ples from my brother's body. I asked him while we were there why
it was necessary for the police to light fire next to the body.
He told me that the police who had been guarding the body were
cold and wanted to warm up their bodies. The statement I gave
Kariuki carried all the information I have given above. He
immedlately realized that I knew too much about this case. I was
threatened by him that if I'm interviewed by Scotland Yard's, Mr.
Troon, I should not tell them what I have written in that state-
ment, which he held, because if I dld, ! my own security would
not be guara

nteed, the security of my wife, who was still in detention would
not be guaranteed, and my children would suffer untold suffering.
So, in the statement which I gave Mr. Troon, I refrained from
being very specific for my own safety and the safety of my fami-
ly. I dwelt mainly on the general corruption in Kenya, the gen-
eral statement on the trip to America and back, and the long
standing dispute Biwott has had with my brother. In my statement
to Mr. Troon I mentioned to him about general corruption in Kenya
and especially ln Civil Service and how my late brother had been
against it. Troon knew I was tortured because he asked me several
times during my interview with him if I was tortured. Although I
denied it, he himself told me "you are denying it, but I know you
have been tortured." At the end of my interview with Troon, he
discovered that I could be of more assistance to him because he
complained of the police not being co-operative with him and some
senior government officers who had refused to be interviewed by
him, and that my late brother's secretary had refused to talk to
him. Although, the same s! secretary had told me that on the 1

2th of February 1990 a group of people came disguised as tele-
phone repairmen and had gone to my brother's office to change the
telephones which had never been requested in the first place.
Along with them they took my brother's diaries, files, and other
pens my brother used to use. She told me she was afraid herself
because when those people were leaving is when they introduced
themselves as police officers and they took a whole carton of
files. What were in those files can only be revealed by Hezekia
Oyugi who had ordered the Job.

After my release from detention, the police kept surveillance
over me. I kept out of the limelight and I kept writing my notes.

Around June 1990, or there about, the District Commissioner in
Kericho Mr. Lagat, came to my office at the Attorney General's
chambers to register a company he was forming. Since both of us
were District Commissioners, we still had a close relationship.
That is why he told me in detail what took place when my late
brother visited him in his house at Kericho.

In October 1990, after the government had refused to reveal the
outcome of Troon's report on the murder of my late brother, they
indeed started the Commission of Inquiry to look into the disap-
pearance and subsequent death. This was contrary to what the
President had assured Kenyans, and the family in particular, that
Troon's report would be made public. Since now the report of
Troon was completed, and implicated the closest President allies,
it now became difficult to reveal these names in public because
that would have meant the collapse of the entire government. The
Attorney General was to do the co-ordination of setting up the In-
quiry Commission in Kisumu. Since I was a Deputy Secretary in the
Attorney General's chambers and the man in charge of administra-
tion, it was my duty to set up a Committee to look into the open-
ing of offices in Kisumu. During that period I had access to
Troon's report. Oyugi was so upset to realize that I had come
across such vital government secret information on my brother's
murder.

My late brother's wife, Christabel ,who decided to go along with
the government in regard to her husband's murder, decided to have
her own lawyer, a lawyer referred to as Ouko's family lawyer.
Ouko had brothers and sisters. Ouko had a clan. The clan wanted
one lawyer to represent them in this commission but Mrs. Ouko
said she would not go along with that, she would have her own
lawyer who would agree with the government in all issues before
the Commission, because as she put it, the government would have
to educate her chlordane and look after them. Therefore, she was
not ln any way willing to be at odds with the government by rais-
ing questions on the murder of her husband. we, therefore, agreed
to disagree with her on this issue because my late brother was my
blood brother. Therefore, I took lt upon myself to take any risk
possible to ensure that at the end of the day the culprit would
be put to book and those who murdered my brother would be known
worldwide. I made a comment to that effect when there was opposi-
tion to the lawyer the clan had appointed to represent them in
the Commission. That statement, which was actually in favour of
the Commission, was later made to be a statement which was taken
to be contempt of the Commission, and I was accordingly summoned
to appear before the Commission on the 29th of October 1990 to
show cause why I should not be taken to fail.

The next day I heard about the contempt of court charges through
T.V. announcement. I was called by the Attorney General. He told
me that I would definitely go to court and jail. What he could do
was help me after I leave jail to see if I can get my government
dues back. Oyugi's brother-in-law who ls also a senior government
officer, and whom we had worked with for many years, told me that
I will be put in jail and I will be eliminated there so that what
I know Would not be known by anybody else. I told him since the
government had taken the document I held, why do they want me out
of the way, what have I done to deserve such treatment. He told
me that's Oyugi's directive and since Oyugi i8 the one in charge
of Internal Security, I will definitely find myself in big trou-
ble unless I can go back and kneel before him and tell him that I
am now ready to help cover the murder of my late brother. I said
this will never happen even if it means my death. Considering the
torture, humiliation and the pressure I had gone through, I knew
that if I went to jail again, I would not come out alive. There-
fore, I decided to escape.

I left Nairobi for Kisumu on October 27th having engaged a lawyer
, to represent me on the 29th of October 1990. It was only me who
knew that I was not going to Kisumu to appear before the Commis-
sion, who were only waiting for me to put me in jail, especially
having been assured that by the Attorney General. I had to walk
over 200 miles to escape.

I urge my fellow Kenyans to be calm and watchful. Corruption in
Kenya is so alarming, the power struggle in the country is on the
increase that the only solution is to have more than one politi-
cal party. It is only then that there will be democracy in Kenya.
I am talking as one of the people who has been in charge of elec-
tions in Kenya. I was involved in all the elections Kenya has
ever held since 1967 when I started working as a District Off-
icer. The 1983 general elections, 1985 Kanu elections, and 1988
general elections were the worst in Kenya's history. Especially
the 1988 elections where almost all the ministers with the excep-
tion of a few were selected, but not elected by the people.
Therefore, the only way Kenya can survive is to allow a two-party
system, fair election with no rigging, and eradication of govern-
ment corruption. It is only then that Kenya will be a country one
can, be proud of.

Further your affidavit sayeth naught.

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