20101220
reuters

Nairobi — Luis Moreno-Ocampo planned his latest visit to Kenya to coincide with the review conference on national dialogue arranged by mediator and former UN secretary general Kofi Annan.

A day before the official opening of the conference on Wednesday, December 1, a briefing meeting was convened between Annan, Ocampo and the two Principals -- President Mwai Kibaki and Prime Minister Raila Odinga -- at the Office of the President in central Nairobi.

Also in attendance were members of a special Cabinet committee on the International Criminal Court chaired by Internal Security Minister George Saitoti, whose members include Lands Minister James Orengo, Constitutional Affairs Minister Mutula Kilonzo, Immigration Minister Otieno Kajwang, Permanent Secretary in the PM's office Mohammed Isahakia, Internal Security Permanent Secretary Amos Kimemia and Head of Public Service Francis Muthaura.

According to our sources, anxiety started building up at the meeting the moment Ocampo announced that he would reveal six names of the suspects he intended to prosecute at The Hague on December 15.

The air was rife with anticipation and anxiety. According to some of those who attended, the rest of what Ocampo said at this meeting did not get much attention.

He merely sought to stress that technically, the six suspects he would be naming would continue being treated as innocent until the first quarter of next year, by when the ICC pre-trial chamber will have met to deliberate on the Kenyan case.

Everybody was at first asked to leave the meeting when Ocampo finished, being told that the arrangement was that the names would be released only to the two Principals.

But later, Saitoti and Orengo were asked to remain behind. Also present were Nick Wanjohi, the president's personal aide, and Muthaura.

The news hit them like a thunderbolt. That William Ruto was on the Ocampo list did not surprise anyone. He had taken a personal initiative to defend himself against the ICC, even travelling to the Hague to put forward his case.

Neither did the name of Finance Minister Uhuru Kenyatta surprise. He had gone to court to have his name expunged from a report by the Kenya National Human Rights Commission (KNHCR) that contained allegations linking him to post-election violence.

Nor did the inclusion of former police commissioner Hussein Ali on the list shock any one, having been adversely mentioned in both the report of the Waki Commission on the post-election violence and the report by the KNHCR.

Our sources said that when Ocampo read out Henry Kosgey's name, the anger and consternation was palpable on Odinga's face.

The news of the inclusion of Muthaura's name on the Ocampo list, likewise, came as a big surprise to the President. Reaction to the inclusion of the name of Kass FM presenter Joshua arap Sang was ambivalent.

Still, Kibaki and Odinga found themselves in a bind. The circumstances forced them to quickly close ranks to work up a common approach out of the tricky political spot that the Ocampo list had thrust them into.

With the December 15 date when Ocampo was supposed to make the big announcement approaching, something had to be crafted quickly, the objective being to steal the thunder from Ocampo.

That sense of urgency and anxiety led to the uncommon occurrence of calling a Cabinet meeting on a public holiday on Monday, December 13.

Cabinet ministers have narrated to us how they arrived at the meeting's venue only to find that a statement signed by President Kibaki and Prime Minister Odinga had already been drafted and distributed for adoption.

The central plans of the paper were the following; First, it proposed that the government should immediately craft the infrastructure for a local tribunal to try post-election violence suspects and, therefore, obviate the necessity of the ICC process by invoking the principle of "complementarity."

Second, that in order to demonstrate to the ICC that what the government was putting in place was legitimate, the government should commit to replace holders of key individuals in the criminal justice system -- namely Attorney General Amos Wako, Chief Justice Evans Gicheru, and Director of Public Prosecutions Keriako Tobiko -- within 30 days.

When the statement was circulated to members of the Cabinet, it provoked an uproar, with several ministers arguing that the proposal was not legally feasible and the supporting side charging that Ocampo had to be stopped because he was playing politics.

Wako, who was present at the meeting, cried foul, asking why individuals were being sacrificed. At the end of it all, the Cabinet resolution that was drafted merely committed to the establishment of a local tribunal.

The plan to drop Wako, Tobiko and Gicheru was left in abeyance.Last Thursday, Odinga and Kibaki held a two-hour meeting at the Office of the President to review the situation and to agree on the contents of the common statement that Odinga subsequently tabled in Parliament.

It was a more comprehensive and thought-out response to the tricky situation the government had found itself in.

The significant thing was that the government had begun to appreciate that it did not make sense to take the risky gamble of adopting a confrontational attitude towards the ICC.

Indeed, Odinga's statement in parliament came in the wake of a noisy and highly intemperate campaign by supporters of the individuals on the Ocampo list to remove the country from the jurisdiction of the ICC altogether through a parliamentary initiative.

Apparently, it had dawned on the government that the most viable option open for Kenya in these later stages was to work within what is provided in the Rome Statute and fight to take over the planned prosecutions from the ICC.

In brief, Kenya will either seek to do what is technically called a referral, a process where it applies to have the ICC surrender the prosecutions to a local tribunal established under terms agreed with the ICC -- or seek a deferral, an arrangement provided for under Article 19 of the Rome Statute whereby a country can request the UN Security Council to defer ICC prosecutions by at least one year.

Whether the government will succeed in plans to circumvent the ICC process by April next year remains to be seen.