Nairobi — The much touted fast-tracking of the trials of Kenya's post-election violence perpetrators might not happen after all, though senior government officials say the International Criminal Court has enough evidence to start the proceedings any time.

The talk was triggered by a recent statement by ICC chief prosecutor Louis Moreno Ocampo -- who is scheduled to visit the country in early November -- that Kenya will serve as example to the rest of the world.

The statement raised anxiety that the ICC would fast-track Kenyan cases.

But hastening cases has no precedence in the history of the ICC.

Experts on the court's operations are casting doubt on the practicability of Mr Ocampo's assertions.

Internationally recognised standards are expected to be rigorously observed in any prosecution.

These standards include a fair and public hearing before a competent, independent and impartial tribunal; a presumption of innocence; and adequate time and facilities to prepare a defence.

Also, the accused has the right to choose their own lawyers.

In an exclusive interview with The EastAfrican, Elizabeth Evenson, a counsel, International Justice Programme with the Human Rights Watch in Belgium, said the ICC prosecutor has not officially opened an investigation into the situation in Kenya.

Instead, his office has been conducting what is known as a "preliminary examination" to determine whether to open an investigation.

Such a situation could give some breathing space to suspects whose names are on the list.

Ms Evenson explained that although the ICC process is getting faster, trial of international crimes takes time.

When an investigation is opened, the prosecutor will proceed to conduct investigations into specific crimes.

If and when he has sufficient evidence to seek arrest warrants against specific individuals, he must request those arrest warrants from an ICC pre-trial chamber.

Assuming the pre-trial chamber agrees, arrest warrants will be issued and all states belonging to the ICC, including Kenya, will be obliged to assist in arresting the wanted individuals.

Securing arrests can be a difficult process because the court -- which does not have its own police force -- must depend on the cooperation of states.

Kenya, through Prime Minister Raila Odinga, has said the government will help arrest the suspects when the warrants are issued.

This is unlike the case in Sudan, where the government has refused to co-operate with the ICC to deliver President Omar al-Bashir, despite the warrant having been issued publicly.

Kenya's Minister for Justice Mutula Kilonzo, in an interview, said the ICC has already gathered enough evidence and doesn't need to do preliminary investigations, as would have happened in other countries.

Mr Kilonzo said the reports by the Waki Commission (a team chaired by Justice Philip Waki), the Kriggler Commission (chaired by retired South African judge Johann Kriegler) that showed some electoral loopholes that were exploited by some politicians, and the government report that was sent to ICC in July, are enough evidence for the prosecutions to begin by November.

"The ICC is now simply required to assess and polish the evidence before going to the pre-trial chamber. The only thing that requires serious consideration is whether the post-election events meet the threshold of international crime," the minister argued.

Apart from pressure from some Western countries that have interests in Kenya, like the Obama administration and the UK, there is talk that former United Nations Secretary General Kofi Annan, who presided the Kenyan peace talks, would like to expedite the cases and would not want to fail.

Secondly, both the protagonists in the 2007 elections -- Orange Democratic Movement and the Party of National Unity -- had filed complaints at The Hague before the mediation talks, detailing how they believed their opponents contributed to the violence.

In the ICC system, after individuals are arrested, there is a pre-trial procedure known as "confirmation of charges".

This is a hearing to determine whether there is enough evidence to send the case for trial.

Assuming there is, the case will be handed over to a trial chamber and preparations for trial will begin.

Any ICC investigation will need to be complemented by efforts at the national level to prosecute a broader group of perpetrators.

This is why it is important to see forward movement on the establishment of a special tribunal when Kenya's Parliament resumes in November.

The international community has indicated that it will support credible national prosecutions, and the ICC could also have a role to play in sharing its expertise with a local tribunal.

But then there is another question regarding the mental preparedness and the political will of the Kenyan leadership in co-operating with the ICC.

According to Ms Evenson, the ICC is designed as a court of last resort.

This means that it steps in only when national authorities are unable or unwilling to conduct trials at home.

The Kenyan government has consistently indicated that it is committed to national prosecutions in the past year since the Waki Commission first made its report, recommending the establishment of a special tribunal.

According to Ms Evenson, there are at least two ways in which the ICC prosecutor can open an investigation.

The first is for the Kenyan government to formally refer the situation to the prosecutor for investigation.

This is known as "self-referral" under article 14 of the ICC statute; situations in Uganda, Democratic Republic of Congo (DRC), and the Central Africa Republic were all referred to the ICC through this mechanism.

The length of time this will take depends on the situations before the ICC. In the ICC's first trial -- that of Thomas Lubanga of DRC -- investigations began in 2004, Lubanga was arrested in 2006 and his trial began in January 2009.

In the ICC's second trial -- that of Germain Katanga and Mathieu Ngudjolo -- Katanga was arrested in October 2007 and Nudjolo in February 2008 and their trial will begin in November 2009.

This is the route Kenyans committed to follow in a meeting between a government delegation and the prosecutor at The Hague in early July this year.

The delegation comprising Mr Kilonzo, Lands Minister James Orengo, Attorney General Amos Wako and Mr William Cheptumo, the Assistant Minister for Justice, committed that either there would be national prosecutions through a mechanism established by parliament or the government would refer the situation to the ICC.

Since then the government, through a Cabinet decision in July, backtracked on its commitment to pursue a domestic special tribunal.

While there is a private Bill by Imenti Central Member of Parliament Gitobu Imanyara pending in Parliament to establish the special tribunal, the Kenyan leadership has been accused of not showing commitment to getting this Bill passed.