The government is planning to fight the charges against the Ocampo Six right from the preliminary stages.
Reacting to the Tuesday summonses by the International Criminal Court, the government announced it will contest the jurisdiction of the court.
The ICC has ordered the six suspects to appear before it on April 7. (Read: Ocampo Six ordered to appear at Hague)
Kenya will also argue before the Pre-Trial Chamber that the two cases that Prosecutor Luis Moreno-Ocampo is set to open against the suspects cannot be tried by the court.
“The government will challenge the admissibility of the cases as well as the jurisdiction of the court (ICC).
“The Rome Statute (which established the ICC) gives the person for whom the summonses have been issued and the State which has jurisdiction over such persons to challenge the admissibility of the case or the jurisdiction of the court,” said the statement signed by Justice Minister Mutula Kilonzo, Internal Security Minister George Saitoti and Attorney-General Amos Wako.
It was issued after a morning meeting attended by President Kibaki and Prime Minister Raila Odinga at Harambee House. (Download: Govt Statement on admissibility of ICC cases)
The ICC has identified Deputy Prime Minister Uhuru Kenyatta, MPs William Ruto and Henry Kosgey, Public Service boss Francis Muthaura, former Police Commissioner Hussein Ali and radio presenter Joshua Sang as the persons who may bear criminal responsibility for atrocities committed during the post-2007 election violence.
According to the International Crimes Act, only Mr Wako can represent the government at the ICC.
The government’s position comes a day after the Pre-Trial Chamber judges, in a majority vote, issued summonses against the Ocampo Six and ordered them to go to The Hague for an initial appearance on April 7.
The judges, Ekaterina Trendafilova and Cuno Tarfusser, warned that they will issue arrest warrants against the six suspects if they fail to turn up. Judge Has-Peter Kaul, the third member of the Pre-Trial Chamber bench, has dissented and did not sign the ruling.
The suspects have announced that they will honour the summonses. (Read: Ocampo Six accept Hague summons)
However, ODM has distanced itself from the government position, with Lands Minister James Orengo saying it amounted to reneging on an earlier promise to cooperate with the ICC.
Both sides of the coalition claim they want justice for the victims of the violence, but Parliament has three times rejected attempts to form a local tribunal.
When Mr Moreno-Ocampo concluded his investigations, a campaign to keep the ICC out of the Kenyan case took root, culminating in the shuttle diplomacy led by Vice-President Kalonzo Musyoka. (Read: VP to press on with deferral bid).
Mr Orengo said the government position should have come from the Cabinet committee on ICC.
“They should have called a meeting of the committee that has members from both sides. None of the members (Cabinet ministers Otieno Kajwang, Amason Jeffa Kingi and Mr Orengo) were invited.
“This shift of positions and change of ground is without any justification,” he said.
While saying he was not opposed to the government challenging the admissibility of the case and the ICC jurisdiction, he said it should be an all-inclusive decision.
“There is an evil genius in government, a modern day Rasputin (a Russian political schemer) who is behind all this.
“We know the object of the statement was to keep some people holding on to their positions even after they have been summoned, directly against the Public Officer Ethics Act,” he said.
Mr Kilonzo warned against politicising the opportunity to defend the Ocampo Six.
“Challenging the admissibility of the cases and jurisdiction of the ICC over this matter is an opportunity that only comes once. It is a legal process and if we politicise it, we stand to lose,” he said.
The Rome Statute gives the ICC powers to investigate cases of genocide, crimes against humanity and war crimes.