The government blew at least six opportunities to halt the International Criminal Court process and have post-election violence suspects tried at home.
On February 5, 2008, ICC Prosecutor Luis Moreno-Ocampo said his office had begun a preliminary examination of the violence.
The first opportunity that the government had to try the post-election violence suspects arose from the mediation process led by former UN Secretary-General Kofi Annan. The process saw the signing of a power-sharing agreement for a coalition government.
The process also set up the Commission of Inquiry on Post-Election Violence (Waki Commission). On October 15, 2008, the Waki Commission submitted its report.
Its first recommendation was the government establishes a special tribunal of national and international judges to investigate and prosecute perpetrators of the post-election violence.
Though the report had a clear indicator of where the blame lay, the government did not establish the tribunal with its efforts in Parliament falling flat.
The report also said that if the tribunal is not set up within six months, information collected by the Waki Commission would be passed on to the ICC, including a sealed envelope of names of those suspected to be most responsible for the violence.
On July 3, 2009, Lands minister James Orengo, his Justice counterpart Mutula Kilonzo and the then Attorney-General Amos Wako met Mr Moreno-Ocampo at The Hague just days before the prosecutor received the Waki evidence.
The Kenyan officials signed an agreement with the ICC committing the country to establish a credible and independent tribunal to try the suspects by August, 2010.
Kenya was then given one year, beginning July 2009, to set up the local tribunal failing which the ICC would pick up the matter. Six days after the signing of the agreement, Mr Annan handed over the Waki envelope and corresponding evidence to Mr Moreno-Ocampo.
Mr Annan and the panel of Eminent African Personalities had continuously urged the government to form a local tribunal but in vain.
Though the move appeared to have caught the government off-guard, Mr Kilonzo defended it, arguing that Mr Annan was only “satisfying” himself.
He also said that the Kenyan delegation agreed to allow Mr Moreno-Ocampo to start preliminary investigations on the suspects based on three issues. On November 9, 2009, the government introduced, for the second time, a constitutional amendment to form a local tribunal. Debate kicked off on the Bill but was never concluded.
But even before this and after months of speculation, the government, on July 30, 2009, announced that it was abandoning the tribunal root, opting for normal criminal courts.
According a President’s statement after a Cabinet meeting, the government was faced with four options.
These were establishing a special tribunal, setting up a special division of the High Court, directly referring suspects to the ICC in The Hague for trial and deploying ordinary criminal courts, together with the Truth, Justice and Reconciliation Commission.
The Cabinet announced that having considered these options, as well as the possibility of withdrawal from the Rome Statute, it resolved not to create a special tribunal but to instead deploy ordinary criminal courts and to expand the mandate and membership of the newly created TJRC.
This appeared to be the sign that Mr Moreno-Ocampo was waiting for and on November 26, 2009, he filed a request seeking authorisation from Pre-Trial Chamber II to open an investigation in relation to the crimes allegedly committed during the chaos.
He received the authorization on March 31, 2010 and applied for summonses to appear against the Ocampo Six which the court granted and the suspects appeared before the court last year.
The government also bungled the chance of having the two cases before the ICC referred back to the country by offering unconvincing reports to The Hague judges.
The government made unsuccessful attempts in the court as well as before the UN Security Council to have the cases brought back to Kenya. In its efforts, it presented to the court two reports on progress made in investigating post-election violence crimes.
Kenya also lobbied the African Union and members of the United Nations Security Council to support its deferral request at the UN. The AU supported Kenyan request but the Security Council quashed the efforts in an informal meeting.
The government told the court that there are over 3500 pending investigations that it needs to fast track and thus the need for the material held by the ICC.
However, all efforts failed as the requests both at the ICC and the Security Council were rejected. The ICC judges also rejected the government’s request for assistance with evidence to enable it pursue its cases locally.
Its requests to the ICC pointed at the failure of the police and the Attorney General to investigate and prosecute post-election violence cases.