Kenyan PM Raila Odinga (middle) with President Kibaki (left) and Kofi Annan (right). Odinga has voiced his support for the trial of the Ocampo Six at the ICC (AFP: Simon Maina)

It appears that Kenyan efforts to defer the ICC prosecutions of the “Ocampo Six” are destined to fail. But it may not only be because of international pressure or lack of consensus in the UN Security Council. Rather, the final nail in the coffin may have come from the Kenyan government itself.

The Kenyan government has been working hard to ensure that investigations into six senior officials (the so-called “Ocampo Six”), including the current Prime Minister and Finance Minister, the Minister of Higher Education as well as key political allies of the current government are deferred. Kenyan officials have gone on a diplomatic road-show to dozens of states in an attempt to convince other members of the international community to pressure the UN Security Council to invoke Article 16 of the ICC’s Rome Statute. Article 16 allows the Council to defer an ICC investigation or prosecution by 12 months, renewable yearly. Earlier this month, the Kenyan government officially requested the Security Council to defer the cases and they have gained the support of numerous African states in their efforts.

Kenya has argued that ICC prosecutions are no longer necessary because the government will now establish a credible and legitimate judicial institution to look into crimes committed after the 2007 elections. The President of Kenya, Mwai Kibaki, has argued that “a local tribunal “will boost our efforts [for] peace, justice and reconciliation as well as uphold our national dignity and sovereignty; and prevent the resumption of conflict and violence.”

Nevertheless, a few of the so-called Ocampo Six have said they would appear before the ICC. Earlier, I suggested that, their willingness to appear before the Court seriously undermined the government’s attempt to have the ICC’s investigations deferred. Why would Kenya need to defer the investigation if the alleged perpetrators were themselves willing to sit trial at the ICC?

Now, however, Kenya’s Prime Minister Raila Odinga, a key figure in President Kibaki’s Orange Democratic Movement, may be the chief undermining source. A chasm has been created within the Kenyan government regarding the issue of accountability and the ICC investigations which can only weaken the government’s claim that the cases must be deferred. In an exclusive interview with Radio Netherlands Worldwide, Odinga, declared his support for the ICC:

“The trial should take place in The Hague, that’s what I think. The trial should proceed there, until Kenya has put in place a competent local mechanism, which I don’t think will be achievable.”

The post-election violence in Kenya resulted in 1,200 deaths and hundreds of thousands civilians fleeing from their homes (Photo: Simon Maina/Agence France-Presse)

Odigna further rejected claims by those like President Kibaki that proposals for a tribunal to be set up by the government to investigate post-election crimes would be legitimate.

“Putting up a bill is a long process; it doesn’t mean that we want to quit the ICC track at all!…Parliament rejected a local tribunal twice! That’s why the matter went to the Hague. What they are talking about right now is not a truly independent local tribunal, but a kangaroo court which they can manipulate to get these people acquitted. That is not acceptable.”

This is not the first time that Odinga has disagreed with the President over the issues of justice and accountability. When Sudanese President Omar al-Bashir, himself indicted by the ICC, visited Kenya this past summer, Odinga described the invitation of Bashir as “wrong”, adding that “[w]e are going to look very bad in the eyes of the international community if we allow someone who has been indicted to come and spoil the party for us.”

While the deferral request by Kenya appears doommed to fail, the implications of rejecting a deferral are still unclear. Some suggest that the member states of the African Union (AU) may “reconsider” their relationship with the ICC. Others say African states may withdraw from the Court alltogether. Yet, whatever the implications, they are unlikely to be supported by a broad consensus, domestically or between states within the AU. The latest developments out of Kenya mirror this lack of consensus and, as Odingo’s sentiments illustrate, sharp differences of opinion exist even at the highest political levels.