Nairobi — Four Cabinet ministers convinced they could be arrested by International Criminal Court agents because of their role in post-election violence have held a series of meetings with lawyers to stall Chief Prosecutor Luis Moreno Ocampo's plans.
They held a meeting on Friday night in Loresho Estate to have President Mwai Kibaki and Prime Minister Raila Odinga establish a special division of the High Court to try suspects.
Their plan B involves pressing Kibaki and Raila, at this week's Cabinet meeting, to take over Imenti Central MP Gitobu Imanyara's Bill, amend it and present it to Parliament for debate and adoption.
One of the two lawyers at the meetings said yesterday: "Once the special division is set up, the ICC will be asked to halt its investigations because the government would have put in place a credible judicial process that can satisfy international standards to try post election violence suspects."
The ministers are relying on the recently enacted International Crimes Act-2008 which provides that a person who is alleged to have committed certain crimes specified under the Act, may be tried and punished in Kenya.
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The Rome Statute gives priority to credible national processes and ICC moves in after a government has failed to set up one or is unwilling to create a credible judicial process.
But an expert on how the ICC works, lawyer Betty Murungi, said Ocampo will not abandon his efforts even if a special division of the High Court is established.
"It is not either or but it is both the local tribunal and ICC. These two are meant to be complimentary and those hoping to halt Ocampo by setting up a local mechanism are misinformed," said Murungi, currently in The Hague for a conference.
In his last media briefing before he left on Saturday, Ocampo said there was still need to set up a Special Tribunal to try hundreds of other suspects because he was only going to deal with "two or three".
He will make a formal request to the ICC to start his investigations. He has credible evidence against four cabinet ministers who bear the greatest responsibility for the violence that left 1,300 dead and about 500,000 displaced.
ICC has appointed three judges - Ekaterina Trendailova, Hans-Peter Kaul and Cuno Tarfusser - to handle the Kenyan case.
Ocampo's zeal has caused panic and raised political temperatures among politicians who had initially supported The Hague as the best option because they thought it would take too long.
Justice minister Mutula Kilonzo yesterday warned against sabotaging Ocampo saying the country had no choice but to end the culture of impunity.
He confirmed he had met resistance from some of his colleagues when he presented his proposals on a special local tribunal.
"You do not expect the same people to be happy now that Ocampo is moving with swiftness to ensure that justice is done," he said yesterday.
"There are hundreds of people who torched houses, raped and killed, they too must be brought to book and that is why I will support the Imanyara Bill when it comes to the floor of the House," Mutula said.
Imanyara said yesterday: "I will not co-operate if the intention is to stop Ocampo. I'm determined to see this Bill through Parliament with all its provisions intact. No law is perfect, but we must take the first step then improve on it."
Debate on the Bill is expected to be fast-tracked when Parliament resumes tomorrow. Two proposals likely to cause problems are those lifting presidential immunity and requiring any Cabinet minister mentioned to resign.
According to documents prepared by the lawyers and seen by the Star, the ministers want the Special Division court created by Chief Justice Evan Gicheru without Parliament's approval.
The special court will have at least two judges from the Commonwealth but the chief prosecutor and investigator will both be Kenyans.
Chief Justice Gicheru will be expected to name a number of other Kenyan judges including those in the Court of Appeal to head the special court.
A similar proposal was presented to the Cabinet in July after it rejected two Bills presented by Mutula proposing of a Special Tribunal.
President Kibaki directed a special Cabinet sub-committee to draw up a proposal on how it could be constituted and sources say that it is the proposal likely to be presented to Cabinet on Thursday.
The sub-committee comprises of Mutula, Lands minister James Orengo, Attorney General Amos Wako and Foreign minister Moses Wetangula.
Law Society of Kenya council member Evans Monari said creating a special division of the High Court was the only viable option left for the government because it will satisfy the requirements of the Rome Statute and also provide an effective home-based mechanism for fighting impunity.
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