Does this pledge mean anything?

What is important to note is that on the eve of Moreno-Ocampo’s arrival in Nairobi, Mr Thuita Mwangi (PS Foreign Affairs) and Prof Anyang’ Nyong’o (Medical Services Minister, ODM) argued for two opposing approaches on the ICC. While the former suggested ICC involvement would be premature, the latter suggested that the ICC should be allowed to come in as soon as possible.

This, and other verbal skirmishes that occurred between dominant voices in PNU and ODM on this issue tells us more than the broad smiles at the orderly media conference attended by Moreno-Ocampo.

The reluctance by the principals to refer the situation – thereby avoiding the authorisation from judges that Moreno-Ocampo now has to seek – points to the lack of consensus and the fact that the two do not want to be seen as ‘traitors’ in the eyes of trusted supporters.

These dynamics – in particular the apparent lack of consensus – have a bearing on whether the pledge to cooperate is genuine.

It remains to be seen whether the principals will contain disruptive elements and establish a sustainable cooperation relationship with the ICC.

Crucially, the much-criticised Attorney-General Amos Wako – recently banned from travelling to the US for allegedly ‘impeding reforms and aiding impunity’ – remains the technical focal point for co-operation.

All requests for co-operation from the court will be addressed to his office. The police – whose role in the violence has been questioned – remain key in providing security and other forms of assistance to ICC investigators and staff, victims and witnesses. Moreover, the Government has to issue travel visas to ICC agents to arrest suspects when called upon.

Whether the Government is committed can only be gauged once this process begins. One can recall that in Uganda, after much fanfare and media frenzy when President Museveni referred Joseph Kony’s case to the ICC, of the five indicted, no single individual has been arrested.

So what happens from here?

In terms of procedure to be followed, in terms of Article 15.3 and 15.4 of the Rome Statute, the prosecutor is required to make his case to the judges of a Pre-Trial Chamber and argue convincingly that there is reasonable basis to proceed with investigations

This procedure is to ensure that the prosecutor actually has a case and that the court will not be wasting scarce resources on unfounded investigations. Moreno-Ocampo has stated that he will do this in December.

If they agree with him – that evidence suggests there are international crimes and gravity is met – the judges will then issue authorisation to the prosecutor to open formal investigations into crimes committed in Kenya (Article 15.4 Rome Statute).

In terms of Article 15.6, the judges could reject the prosecutor’s request, if they conclude that the conditions above are not met.

If authorisation is refused, the prosecutor can abandon investigations into Kenya completely, or search for more information that can establish that crimes against humanity were committed.

In this case, he can approach those who provided information in the first place to establish whether they can assist him further (Article 15.5). He can then attempt to obtain permission afresh to open investigations.

Once investigations begin, they will be geared towards making a case against specific individuals on the Waki List. In view of costs – prosecuting international crimes is a complex, expensive affair – Moreno-Ocampo will almost certainly not indict all 12 on Waki list.

He will go for half or less. And that is why we need domestic capacity to complement the ICC. What is clear is that it is just the second chapter in a long saga that has opened.

—Dr Musila is a senior researcher at the Institute for Security Studies, Pretoria, South Africa.