Even as the government fights to have the Kenya case at The Hague deferred, the six individuals named in connection with post-election violence are busy assembling teams of high-profile international lawyers to defend them.
The defence teams also include Kenyan lawyers who have participated in proceedings at international criminal tribunals and special UN courts.
Some of the foreign lawyers have acted for prominent suspects like former presidents Slobodan Milosevic (Yugoslavia) and Charles Taylor of Liberia, and Jean-Pierra Bemba, the former vice-president of the Democratic Republic of Congo.
Others represented high-profile Rwandese facing genocide charges before the Arusha-based International Criminal Tribunal for Rwanda (ICTR).
Those said to have enlisted the services of international lawyers include Deputy Prime Minister Uhuru Kenyatta, former Police Commissioner Hussein Ali and Head of Public Service Francis Muthaura.
Eldoret North MP William Ruto is being defended by Dr Kindiki Kithure and Katwa Kigeni. The latter is also representing journalist Joshua arap Sang.
Sources at Harambee House revealed that Mr Muthaura had sought the services of British lawyer Karim Ahmad Khan who in 1996, led Mr Taylor’s defence.
Maj-Gen Ali has also engaged a foreign lawyer to lead his team, a strong indication of the suspect’s assessment of the gravity of the matter.
In his unsuccessful application to the ICC seeking participation in the proceedings, daiyMaj-Gen (rtd) Ali had enlisted the services of Canadian John Philpot on his team, which includes three Kenyan lawyers.
A member of Mr Kenyatta’s inner circle who is familiar with his defence preparations revealed that the Kanu chairman had contacted British lawyers Steven Kay and Gilian Kay Higgins who defended Mr Milosevic, the former Yugoslav president accused of perpetrating a genocide in Bosnia – the widespread killing of thousands of Bosnian Muslims and Bosnian Croats.
In the 1995 massacre, “almost all captured Bosnian Muslim men and boys, altogether several thousands, were executed at the places where they had been captured or at sites to which they had been transported for execution”.
According to the source, the Britons will team up with “one or two” local lawyers accredited to the International Criminal Court.
Kenyan lawyers cleared to handle ICC cases include Philip Murgor, Mbuthi Gathenji, Ken Ogeto, Mary Wambui Njogu, Chana Sureta and Prof Githu Muigai.
Lawyer Julius Kemboi is coordinating suspended Industrialisation minister Henry Kosgey’s defence.
Vice-President Kalonzo Musyoka has indicated that the government will meet Mr Muthaura’s and Maj-Gen Ali’s legal bills, which are expected to be huge.
According to former Law Society of Kenya chairman Okong’o O’Mogeni, defending a high-profile criminal case in Kenya costs anywhere between Sh40,000 and Sh80,000 a day.
The ICC lawyers will charge about the same amount while their research assistants will take home half that, in addition to the cost of accommodation.
Accommodation at The Hague is not cheap. The cost of lodging in most hotels ranges from Sh11,336 to Sh28,600 (Euro 275) in three-star and five-star hotels.
LSK chairman Ken Akide says the defence teams might also require the services of translators and a team to handle publicity.
“What goes on at the ICC is a mixture of a lot of politics and very limited legal merits. That is why all the suspects must have a formidable publicity machinery to balance the public relations and political equations,” he said.
This can cost nearly Sh40,000 a day if one hires a publicity firm.
ICC prosecutor Luis Moreno Ocampo has sought the permission of a three-judge bench to charge the six with crimes against humanity allegedly committed during Kenya’s post-election violence in 2008.
An ICC Pre-Trial Chamber is currently assessing his application. The judges may confirm charges against the six or reject the application.
Judges at the International Criminal Tribunal for the former Yugoslavia “imposed” Mr Kay and Ms Higgins to defend Mr Milosevic against his wish.
Mr Kay’s website, on which he identifies Kenya as an “emerging market,” describes him as a leading counsel in complex trials in the international courts.
And he is actively engaged in ICC matters not too far from Kenya.
The British lawyer is the lead adviser to Sudan on ICC proceedings concerning the situation in Darfur.
“Kay’s professional experience as a defender before UN courts is second to none. He was the youngest British criminal lawyer to receive the distinction of Queen’s Counsel in 1999 at the age of 43,” says his website.
Interestingly, it was Mr Kay who successfully advised the Liberian government on how to secure an arrest warrant against Mr Taylor who would later be defended by Mr Khan.
In June 2007, Mr Khan dramatically walked out of court, telling the judges he had Mr Taylor’s instructions to do so.
An indefinite adjournment followed. It took another six months to get the case back on track.
Mr Khan acted for Mr Bemba, who is charged with war crimes and crimes against humanity allegedly committed in the Central African Republic. Mr Bemba’s case is going on before the ICC.
And at the Yugoslavia court, Mr Khan defended General Fatmir Limaj, the first commander of the Kosovo army charged with war crimes and crimes against humanity.
Mr Khan is currently representing Sudanese nationals Abdallah Banda and Saleh Jerbo who are alleged to have committed crimes against humanity in Darfur.
If the ICC judges accept the prosecutor’s application, Mr Muthaura and his group will stand trial for crimes against humanity.
A confidant of the public service chief, who sought anonymity in order to discuss the sensitive matter, also mentioned lawyer Ken Ogeto as a member of Mr Muthaura’s defence team.
Mr Ogeto is a former defence attorney at the ICTR, the Special Court for Sierra Leone, and co-author of a book on defence in international criminal tribunals.
However, when contacted Mr Ogeto was non-committal.
“I really don’t want to comment on such matters. The best person to ask should be Ambassador Muthaura.”
Mr Philpot, Gen Ali’s counsel, is being assisted by Gershom Otachi and Evans Monari. Mr Otachi was a defence attorney at the ICTR while Mr Monari represented the police before the Waki Commission on post-election violence.
Mr Philpot’s website gives an insight into the Canadian’s thinking. He is projected as a lawyer opposed to what he considers politically motivated criminal prosecutions and an advocate of fair trials.
Mr Philpot led a successful appeal for Protais Zigiranyirazo, brother-in-law of the assassinated President of Rwanda Juvenal Habyarimana, at the ICTR.
He also conducted the appeal for Jean-Paul Akayesu, the first person convicted for genocide at the ICTR.
And since 2005, Mr Kay has been an adviser to the Syrian government on the UN investigation into international terrorism in Lebanon and the assassination of ex-Premier Rafik Hariri.
He is the author of The Role of the Defence in the Commentary on The Rome Statute of the International Criminal Court.