A picture released on December 15, 2010 by the Hague-based International Criminal Court (ICC) shows a combo of the six Kenyans, named today by prosecutor Luis Moreno-Ocampo, alleged to have masterminded the 2007-08 post-election violence that claimed 1,500 lives.
The government is making last-ditch efforts to save key members of the administration suspected of crimes against humanity from standing trial at The Hague.
One of the options being considered by coalition advisers and insiders is the quick appointment of a new chief justice, director of public prosecution, attorney-general and the inspector-general of police to signal to the international community that the country has a new judicial system that can be trusted to handle post-election violence cases.
They hope that the new appointments, which are laid out in the new Constitution, would be used as a bargaining chip with the United Nations and the ICC to demonstrate that the government is prepared to conduct credible local trials.
After the appointments sources familiar with the discussions told the Sunday Nation, the government would then request the UN or the Commonwealth to help identify foreign judges who can handle the cases locally.
A lawyer familiar with this thinking but whom we cannot identify owing to the sensitivity of the matter, said that it would be much easier for the suspects to stand trial in Nairobi instead of The Hague.
Although the plan makes sense, the lawyer said, it may have come too late to stop ICC chief prosecutor Luis Moreno-Ocampo.
There is also the realisation that if any of the Kenyan suspects is found guilty, they are likely to serve long jail terms of up to 30 or 50 years. Worse, the prison could be somewhere in West Africa or other foreign country with a jail arrangement with the ICC.
The revelations came as President Kibaki and Prime Minister Raila Odinga were said to be grappling with tough choices over members of the Cabinet listed by Mr Moreno-Ocampo as suspects of the post-election chaos.
An opinion poll conducted by Infotrak Harris released on Saturday found that an overwhelming 82 per cent of Kenyans would like those named by Mr Moreno-Ocampo and who hold public office to either step down or be sacked.
The gravity of the rules published by the prosecutor requiring that those named not communicate with each other over the matter as they await the court’s decision to confirm or dismiss the charges is cause for concern in government.
So much so that the government is considering forwarding a request to Mr Moreno-Ocampo to relax the stringent rules now that the suspects have promised to cooperate.
The rules are particularly proving to be a nightmare for the function of the office of the head of civil service Francis Muthaura, who, as PS to the Presidency, is in constant communication with government officials including Cabinet ministers. He also chairs the crucial National Security Advisory Committee.
Also, pressure has been building from the civil society to have those named by Mr Moreno-Ocampo vacate office.
Other than Mr Muthaura, other senior members of the government named are Deputy Prime Minister and minister for Finance Uhuru Kenyatta, Industrialisation minister Henry Kosgey and his suspended Higher Education counterpart William Ruto.
Completing Mr Moreno-Ocampo’s list of six are Postmaster-General and former police boss Hussein Ali and radio journalist Joshua arap Sang.
The Cabinet ministers are in a dilemma over how they would conduct business across their ministries when the need arises, including attending Cabinet meetings.
According to the rules, the suspects can only communicate about the cases through their lawyers and not directly. They are also required to keep the prosecutor’s office informed of their whereabouts.
On Saturday Justice minister Mutula Kilonzo warned.