Nairobi — The cases against top Kenyan politicians and businessmen suspected of funding and organising the election violence in 2007/8 will go before judges at the International Criminal Court in December.
The court's chief prosecutor, Mr Luis Moreno-Ocampo, announced the decision on Thursday after a Harambee House meeting with top Kenyan leaders, among them President Kibaki and Prime Minister Raila Odinga.
Mr Moreno-Ocampo will go before the judges to seek their approval to open an investigation on the key suspects. It is understood that the government declined to refer the cases to The Hague.
In an earlier agreement in July, the government had promised to hand over the cases to the ICC if it was unsuccessful in establishing a local court or tribunal by September 30. That was one of various deadlines that the government failed to honour.
Government leaders have argued that to pass on the cases to The Hague would be an admission that Kenya was a failed state and has no properly working judicial institutions. The ICC does not depend solely on governments to report cases to it. It has the power, by appealing to its own judges, to institute investigations where there is evidence of crimes against humanity.
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This is the route the prosecutor intends to take. "So I informed them, in December, I would request the judges of the International Criminal Court to open an investigation and that is the process established by the Rome Treaty," Mr Moreno-Ocampo said.
The prosecutor met President Kibaki, Prime Minister Odinga, four Cabinet ministers and aides on Thursday in a two-hour closed-door session. Thereafter, the two Kenyan leaders and Mr Moreno-Ocampo addressed the press briefly. They did not take questions.
Persons who attended the meeting told the Daily Nation that Mr Moreno-Ocampo agreed with the Kenyan government that referring the cases to The Hague was a difficult decision. But he also reminded them that Kenya was signatory to the treaty establishing the world court and has no choice but to allow the ICC to prosecute those who bore the biggest responsibility for the violence, in which 1,133 people were killed, 650,000 evicted from their homes and property worth billions of shillings destroyed.
According to the sources at the meeting, Mr Moreno-Ocampo assured the government that he had collated the evidence pointing to crimes against humanity committed during the election violence and will easily secure the judges' approval to start investigations. He said the same when he spoke on the steps of Harambee House: "The crimes committed in Kenya are crimes against humanity and the gravity is there, therefore I should proceed."
Mr Moreno-Ocampo arrived on Thursday morning and was driven to his hotel before heading for the meeting attended by Cabinet ministers Mutula Kilonzo (Justice and Constitutional Affairs), Moses Wetang'ula (Foreign Affairs), James Orengo (Lands), George Saitoti (Internal Security) and Attorney General Amos Wako.
His press conference at Nairobi's Serena hotel and meetings with lobby groups were cancelled, apparently by the government, which was in charge of the prosecutor's itinerary. His aides were on Thursday night moved to the Windsor Golf and Country Club, 18 kilometres from the city centre.
Mr Moreno-Ocampo was expected to request the government to allow the ICC cases to be tried in Kenya or formally refer them to The Hague. If it did not take any of the choices, the ICC would proceed under its own mandate.
Persons at the meeting said the government based its refusal on international law (Article 17(3) of the Rome Statute) which classifies sending cases to The Hague because their courts were unable to handle the trials as failed states.
The sources said the government argued that with some reforms the Kenyan courts were quite capable of dealing with the trials. The government is also said to have tabled wide-ranging reforms it has carried out since the signing of the National Accord on February 28, 2008.
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