, NAIROBI, Kenya, Nov 5 – Kenya on Thursday declined to hand over post election violence cases to the International Criminal Court (ICC), further complicating Prosecutor Luis Moreno Ocampo’s work as he now must get approval from the ICC Pre-trial Chamber before he commences investigations.
Mr Ocampo’s two-hour meeting with President Kibaki and Prime Minister Raila Odinga yielded little, with the government merely pledging to cooperate with his office should he decide to launch a probe.
The prosecutor, who jetted into the country on Thursday morning, now says he will seek the ICC’s permission next month to open investigations.
"I have informed them (President and PM) that in December I will request the judges of ICC to open an investigation and that is the process determined by the Rome Treaty," he said.
At a press briefing outside Harambee House, President Kibaki and Mr Odinga said they were ready to co-operate with the ICC prosecutor. However they were non-committal in their statement which only re-emphasised their commitment to work with the ICC.
"The government remains committed to cooperate with the ICC within the framework of the Rome Statute and the International Crimes Act," a joint statement by the two principals said.
But they still insisted on establishing a local set up to deal with the perpetrators, an indication that the government had not referred the case to the ICC.
"The government remains fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism to deal with the perpetrators of the post election violence," President Kibaki said.
Mr Ocampo told journalists that he had explained his mandate in line with the Rome Statute to which Kenya is a signatory, and vowed to proceed with investigations.
He said: "The crimes committed in Kenya are crimes against humanity and the gravity is there, therefore I should proceed."
Failure by the two principals to hand over the case fell short of expectations among many groups and Kenyans.
On Wednesday the civil society appealed to Mr Ocampo to ensure he secured assurance by the government on self referral, a wish that did not come true.
The NGO feared that it was unlikely that Parliament would pass a Bill seeking to form a local tribunal to try the suspected masterminds of the post election violence.
Mr Ocampo arrived in Nairobi at 7am on Thursday morning to a tight-security reception and was quickly whisked out of the airport without passing through the VIP lounge that is reserved for important state visitors.
A security officer at the airport told Capital News: "Ako kwa ile gari inaenda, (He is in that car that is leaving now). I told you when he comes you (the media) will not know."
Only the swift movement of the very few security officers gave a signal that Mr Ocampo was around. He was hurriedly driven out of the airport through the cargo exit.
Unlike other official visitors to the country Mr Ocampo’s arrival was almost unnoticeable at the airport with security and airport staff taking it calmly. There were no signs of his coming apart from the heavy presence of media who arrived at the airport as early as 5.30am.
Another security officer said: "He needs security, whatever he is coming to do is very sensitive and touches on big people, don’t forget he also has the Sudan case, you can imagine how many people don’t like him."
At Harambee House, he also arrived almost unnoticed by the media after he decided to use the ordinary gate instead of the one reserved for government visitors and officials.
Justice Minister Mutula Kilonzo accompanied him to the meeting that started at 11am. His schedule in Kenya remained closely guarded.
Mr Ocampo’s two-day visit follows the Kenyan government’s failure to meet a September 30 deadline agreed to by a Kenyan delegation to set up a process of prosecuting top suspects in the deadly post-election violence locally.
Under the deal, Kenya agreed to refer the matter to The Hague if it failed to create a special tribunal within the designated timeframe.
The disputed poll results sparked an outburst of ethnically-targeted violence that killed at least 1,300 people and displaced hundreds of thousands more, many of whom remain stranded in makeshift camps.