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President Kibaki will have no alternative but to hand over key allies in his Cabinet suspected of having committed war crimes if Luis Moreno-Ocampo succeeds in securing indictments.

The decision of the pre-trial chamber of the International Criminal Court at The Hague to allow Mr Moreno-Ocampo to take up the Kenya case has triggered debate over whether the President and Prime Minister Raila Odinga will agree to order the arrest of any suspects against whom warrants are issued.

But according to the International Crimes Act which Parliament passed into law in December 2008, the government has no discretion over whether to cooperate with the ICC .

Section 4 (1) of the Act demands that authorities cooperate with the ICC in keeping with the Rome Statute to which Kenya is a signatory.

The law says: “The provisions of the Rome Statute . . . shall have the force of law in Kenya in relation to the following matters — the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters; (and) the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.”

Securing justice

This means one of the last remaining hurdles to securing justice for the victims of the blood-letting that followed the last General Election – the failure by the government to arrest suspects – has been removed.

Albert Kamunde, the chairman of the International Commission of Jurists (ICJ) Kenya chapter, said authorities must comply with international law.

“Since Kenya ratified the Rome Statute and has domesticated the statute, it has an obligation to cooperate. This is what the minister (for Justice Mutula Kilonzo) has been saying, and we believe that is the government’s position,” he told the Sunday Nation.

ICC officials arrived in the country last week to formally begin investigations that could see senior politicians behind the campaign of violence waged after the disputed election face trial.

At least 1,300 are estimated to have died in the violence. Mr Moreno-Ocampo contends that politicians, prominent business people and community leaders instigated and financed the violence.

War crimes

A 2-1 majority ruling at the ICC pre-trial chamber allowed the chief prosecutor to investigate war crimes committed in Kenya.

The judges relied on reports of the Commission of Inquiry into Post-Election Violence headed by Justice Philip Waki and other reports like the Kenya National Commission on Human Rights (KNCHR) investigation into the violence.

Cabinet ministers Uhuru Kenyatta and William Ruto have gone to court seeking to have their names expunged from the KNCHR report.

On Thursday, Beatrice Le Fraper Du Hellen, the ICC’s director for jurisdiction, told the Sunday Nation the arrival of the advance team of officials was one of the first steps in the process of securing justice for victims.

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The investigators will meet officials from the Attorney-General’s office and the ministries of Justice and Internal Security.

The International Crimes Act, in section 9 (b), spells out sanctions for those who attempt to obstruct justice.

“(Anybody who) with intent to interfere in any way with the administration of justice of the ICC, is guilty of an offence and liable on conviction to imprisonment for a term of not more than fourteen years.”

The act expressly forbids any attempts to influence ICC investigators and similarly spells sanctions for ICC officials who may accept “money, valuable consideration, office, place or employment” in exchange for blocking justice.

People who threaten witnesses or their families will be breaking the law, according to Section 17 (1).

It states: “A person who, by act or omission, does anything against a person or a member of the person’s family in retaliation for the person’s having given testimony before the ICC is guilty of an offence and liable on conviction to imprisonment for a term of not more than five years.”

Similar protection is offered to lawyers representing various parties at the ICC and their families. The only ray of hope for some of the suspects is that a High Court judge will have to decide whether a warrant should be executed after an ICC request.

But, in an earlier interview with the Sunday Nation, Ernst Jan Hogendoorn, the Horn of Africa project director for the International Crisis Group, said the government would find it difficult to say no to Mr Moreno-Ocampo if indictments are ultimately issued.

Credible process

“I would be very surprised if the Kenyan government declines to go along with the requests of the chief prosecutor,” he said. “There is so much frustration among ordinary people about the lack of a credible process to try perpetrators that (President) Kibaki and (Prime Minister) Odinga would find it very hard to dismiss any requests for cooperation.”

International pressure is expected to increase on Kenyan authorities if Mr Moreno-Ocampo secures indictments.

US President Barack Obama, leaders of the European Union and former United Nations secretary-general Kofi Annan have been vocal in demanding the arrest of suspects, arguing that their punishment would serve to deter future acts of impunity.

It is assumed that Mr Moreno-Ocampo will not seek the indictment of either Mr Kibaki or Mr Odinga for any role they might have played because he recognises arresting either would be politically untenable.

That is one of the lessons the ICC has learnt from its indictment of Sudan’s President Omar al-Bashir, who has defiantly stayed on in power despite an arrest warrant hanging over his head. In Kenya, the suspects facing arrest may not be so lucky.