The national government now wants an independent, impartial and neutral body to investigate officers of the International Criminal Court (ICC) and former prosecutor Luis Moreno Ocampo on their roles in cases against six Kenyans.
This is according to Solicitor-General Ken Ogeto, who is heading the Kenyan delegation at the 17th session of the Assembly of States Parties (ASP) to the Rome Statute at the ICC in The Hague, The Netherlands.
On December 14, 2010, Mr Ocampo named six Kenyans as bearing the greatest responsibility for the 2007-8 post-election violence that led to the death of at least 1,300 people and displacement of more than 600,000.
At the time of the violence, Mr Kenyatta was the deputy prime minister.
The others he named were Deputy President William Ruto, the then Agriculture minister in the retired President Mwai Kibaki’s government, former Head of Public Service Francis Muthaura and then Police Commissioner Maj. Gen. (Rtd) Hussein Ali.
Also named were the then Industrialisation minister Henry Kosgey and radio journalist Joshua Sang.
Mr Ogeto said that the country expects transparency and openness on the details and nature of investigations into six Kenyans, including President Uhuru Kenyatta.
“The allegations against the former prosecutor should not be swept under the carpet. Kenya urges the Office of the Prosecutor to refer the allegations to a neutral entity to conduct an open and transparent audit of these allegations,” he said.
Mr Ogeto pressed the ICC to ensure that the findings of the investigations are made public and given to the ASP member states so that they can scrutinise them and make informed decisions.
“The integrity of the ICC is key for member states to have confidence in the court. We take the investigations very seriously and want them done openly and expeditiously so that the findings can inform our future engagements with the court,” he said.
Prosecutor Fatou Bensouda later withdrew the cases after key witnesses pulled out while others recanted their evidence.
On October 7, 2017, the Sunday Nation published a story where Mr Ocampo admitted to several international media that the cases against the six Kenyans were weak.
He told The New York Times reporter James Verini, in June 2016, that he knew all along that he had a weak case against them but decided to push on with them nonetheless.
“It was a mess,” Mr Ocampo told the reporter of the fallout within the court as a result of the Kenyan cases.
“I fought with all of my guys because I was involved in everything. All of us were totally emotionally involved. If not, you’re not there,” Mr Ocampo is quoted in the Sunday Nation story.
Allies and supporters accused him of having an ulterior motive.
Mr Ogeto told the assembly that Kenya welcomes efforts by Ms Bensouda to institute investigations and take action against those found culpable.
On the execution of arrest warrants against heads of States, Kenya threw its weight behind the African Union (AU) position for enjoyment of immunity from prosecution based on the customary international law.
The county objected to any increase in the ICC budget for 2019 saying that it was not merited.
Kenya instead called for better use of resources and the interrogation of all the activities of the court, especially in preliminary examinations of cases.
“Kenya is convinced that keeping cases alive despite apparent flaws, in the manner in which they are investigated and prosecuted, not only amounts to a misappropriation of funds but also a travesty of the Rome Statute system,” Mr Ogeto said.