Continued co-operation with the International Criminal Court is an essential part of Kenya’s foreign policy. We applaud the commitment by President Uhuru Kenyatta and Deputy President William Ruto to hold to this position even as they seek political support for alternative ways to deal with the post-election violence of late 2007 and early 2008. Ultimately, ensuring justice is done, and seen to be done, is what matters most to Kenyans.

African Union leaders considering issues around the pursuit of justice in this matter should keep the interests of the Kenyan people foremost in their minds as they do so.

So should western diplomats who see the ICC cases as a purely legal process on which they cannot accommodate AU-type machinations.

Reports coming from Addis Ababa, Ethiopia, where the world’s leaders are gathering to mark the AU’s 50th anniversary, indicate African nations have backed a request by Kenya for charges of crimes against humanity by Uhuru and Ruto be referred back to Kenya. While the AU will not call on the ICC war crimes tribunal to drop its prosecution, their request for a local process is seen as amounting to the same thing. A request from the Kenyan envoy for similar support at the United Nations was not as successful: Yesterday, UN diplomats from Western nations on the Security Council insisted Kenya could only put this matter before the ICC. The move only found support from Rwanda, China, Russia, Azerbaijan, Morocco and Pakistan.

Naturally, there are differing views as to where justice should take place. But there are no doubts on how a credible legal mechanism would work. Whether it is at the ICC or in a local mechanism, such as the one proposed by the Waki Commission and supported by this newspaper, justice is served best in an atmosphere devoid of prosecutorial misconduct or governmental obstruction. There have been some claims of both these challenges in the Kenya cases at the ICC, which is cause for concern. On the former grounds, and due to larger geo-political and national security issues, the governments of President Kibaki and his successor President Kenyatta have been lobbying allies in the UN and AU to push for the Kenya cases to be referred to a local mechanism. A counter argument to that would be the risk of further obstruction locally.

The danger of a politicised prosecution abroad, we believe, must be weighed up against the equally important danger of a whitewash at home. If the ICC process is deemed beyond salvage due to the manner in which prosecutors have conducted themselves, and a decision is reached to seek an alternative in the Kenya cases, Africa must be certain to settle on one that does not suffer from the equally fatal challenge of State interference. Kenyans are walking a tightrope between a potential “carriage of mis-justice” on the one hand and a “miscarriage of justice” on the other.

Neither outcome is desirable.  Our thoughts on how to deal with the PEV atrocities remain unchanged from early 2008 when it was still unclear who the persons bearing greatest criminal responsibility might be. In common with others taking an early reading of the problem, we supported a three-pronged approach in which crimes against humanity would be handled in an international-style court, other serious crimes dealt with in specialised local courts and lesser offences disposed of in a truth commission. We joined others in calling repeatedly for an ICC-style local tribunal that would guarantee us the justice needed without the shame of trials on the world stage. Parliament, in its infinite wisdom, thwarted this approach repeatedly. So here we are.

We believe that a cynical attempt to bring the Kenya cases home and kill them off is unworthy of the leaders Kenya chose in the historic election earlier this year. The best possible outcomes arise naturally from the legal process at The Hague or from a similarly robust legal process in Kenya, not from political pressure alone.

It would be a shame if the stench of the offences Uhuru and Ruto are accused of was not washed away on a transparent judicial system but was buried under the rubble of geo-political security concerns.