He explains that Kenya has the capacity to investigate and prosecute, “We have the political will to investigate, and we have the technical capacity to get to the bottom of this. There is anything that has happened there that is beyond our capacity.”
Tobiko cites the ongoing police investigations and the probe by the inquiry as indications that the government had obligated to its primary duty to deal with the atrocities committed on innocent people.
Despite the positive gesture, Tobiko is concerned that there are capacity challenges of investigating and prosecuting international crimes, one being challenges of forensic investigations due to lack of expertise.
The prosecution is also grappling with an inadequate budget and acute shortage of prosecutors.
The judiciary is also in the process of hiring more judges to help deal with backlog of cases.
Muigai is also concerned that there is a shortage of public lawyers due to competition of the job market with the private sector.
He is positive that the government is working on improving the budget, terms and conditions of lawyers in the AGs and ODPP to ensure they have adequate and professional number of prosecutors.
For Mutua, the government has the capacity to investigate and prosecute “those who incited and who committed the crimes. The police should be able to do these investigations. If they don’t it will be a total failure on their side.”
He is asking the government to be firm, stop the killings and the clashes to ensure such criminal acts are not replicated during the next general election.
The government constituted a five member commission of inquiry to investigate the Tana clashes.
Already five cases involving about 45 accused persons are before courts in Malindi and Garsen and investigations are still ongoing to establish those behind the worst ethnic killings witnessed in Kenya after the 2007/2008 violence.
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