Mr Luis Moreno-Ocampo on Thursday repeated his promise to expose the masterminds of the post election violence in two weeks.
He also threatened to prosecute those suspects he said were intimidating witnesses, a matter he has raised with President Kibaki and Prime Minister Raila Odinga.
“Under the Rome Statute, my office has jurisdiction to prosecute these people for obstructing justice. I hereby put them on notice,” he said.
Speaking in Nairobi, Mr Ocampo said he would take names of six prominent Kenyans to the International Criminal Court, where he is the chief prosecutor, and ask that they be tried for crimes against humanity.
His investigators had enough evidence against the six and he will file two cases, said Mr Ocampo. Though the road to justice is long and hard, he vowed, he would do everything possible to ensure the end of impunity in Kenya.
“It will be a demanding process and there could be delays. We will persist and do our part. We are helping to break impunity. Kenyans will decide their own way forward,” he stated.
Mr Ocampo will submit two cases before the ICC Pre-Trial Chamber III by December 17 and the persons involved could be summoned as early as February next year.
“There are two different cases, each involving the three individuals who have to face justice. Their names will be known, but these individuals are still innocent.
“Their guilt or innocence will be decided by the judges at the end of the judicial process,” he said and clarified that the investigations neither targeted particular individuals or political parties.
“Since last March, when the judges issued an authorisation, my office has been investigating post electoral violence. We collected new evidence, including testimonies, videos and documents. We are not going to discuss our evidence in the media. We will do it in court,” he said.
He explained that the Waki Commission and the KNCHR reports were key in the investigations into the post election chaos but they only provided the background on which his team based its inquiries.
“We received information from the Kenya National Commission on Human Rights and the Waki Commission, their work was fundamental in deciding to open an investigation in Kenya,” he said.
He was addressing the second meeting of the Kenya National Dialogue and Reconciliation, convened by the Panel of Eminent African Personalities chaired by former UN secretary general Kofi Annan at the Crowne Plaza Hotel in Upper Hill, Nairobi.
Prime Minister Raila Odinga, deputy PM Musalia Mudavadi and a host of ministers, MPs, foreign envoys, members of civil society, the clergy and the media were in attendance. The prosecutor was a guest speaker.
Mr Ocampo said he had concluded, in preliminary terms, the investigations and is ready to move to court within the next two weeks.
The applications, he said, will be detailed in two 80-page documents that will link the crimes against humanity to the six individuals.
The prosecutor was categorical that crimes against humanity such as murders, rapes and forced displacements were committed in Kenya during the post election violence in which 1,133 people were killed and at least 650,000 killed.
“We have reached preliminary conclusions and we are ready to present our cases to the judges of the ICC in the next weeks.
“Before December 17, we will file before the Pre-Trial Chamber III of the ICC two written applications of around 80 pages each, summarising the facts and analysing the evidence collected.
“We have to prove that there is reasonable basis to believe that the persons committed the crimes,” he said.
However, he said he will not request the ICC judges to issue arrest warrants for the six individuals but would seek summons for them to appear before The Hague.
And should the suspects volunteer to appear, he would also request that they remain free during the trial. “We will not request an arrest warrant. We will ask the judges to issue summons to appear.
“If the individuals identified agree to appear voluntarily and the judges accept it, the persons may remain free during the trial. In this situation, the judges’ final decision will define if they go to jail or if they should be acquitted,” he said.
Stating the steps that will follow after filing of the two cases, Mr Moreno-Ocampo said the six suspects would be required to express their willingness to appear voluntarily before the judges.
This will be followed by the ICC judges either accepting or rejecting his request to issue summons.
“The judges of the Pre-Trial Chamber could reject my request to issue summons to appear, approve it or transform it into an arrest warrant. This could happen in the first part of 2011,” he said.
Should the summons be issued, the six suspects would then be required to fly to The Hague for their initial appearance before the Pre-Trial court.
The fourth step, and the most crucial for the prosecutor in his bid to try the suspects, would involve judges reviewing the evidence to know whether it is adequate to merit a trial.