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Legal Challenges Threaten to Undermine ICC Investigation in Kenya

In this photo taken by International Criminal Court, first row from left: Kenya's Justice Minister Mutula Kilonzo, ICC's prosecutor Luis Moreno-Ocampo, Kenya's Minister of Lands James Orengo, as they sign an agreement at ICC in The Hague, Netherlands, Jul

As the International Criminal Court investigation into the 2008 post-election violence continues, Kenyan law increasingly is being used by opposition to block the court's work.

Despite receiving the support of the Kenyan President and Prime Minister, ICC Prosecutor Luis Moreno-Ocampo has faced a series of high-level hurdles over the past month in his efforts to bring the organizers of the 2008 poll chaos to The Hague.

The latest in this series of frustrations is his request for documents detailing top-level security meetings during the violence. According to the Daily Nation newspaper, the government is considering withholding the minutes of Security Council meeting held before and during the crisis.

Moreno-Ocampo began his investigation into the poll chaos after nearly two years of inaction in Kenya. The secretary of the Law Society of Kenya, Apollo Mboya, said the obstacles facing the prosecutors only validate the need for an international mechanism for justice. Mboya said the opposition facing Moreno-Ocampo is not surprising.

"This is what we expected. The behavior is predictable. We expected it to go that way. But we think that the evidence that is there, even without the other crucial evidence that is required by the International Criminal Court is enough to bring people to account for the crimes they did," said Mboya.

Mboya said the government was first required to prove to the ICC that the minutes requested by the prosecutor would harm national security if released. In that event, Mboya said agreements could be reached to keep the documents secret while still making them available for the investigation.

The prosecutor's team has met with similar resistance from Kenya's police. Trying to establish a police response to the election chaos, Moreno-Ocampo's team has requested statements from Provincial Police Commissioners and Officers. Kenya's Attorney General issued a directive for those summoned to comply with the ICC request. But the officers and commissioners have refused, arguing the request violates Kenyan law.

It is believed the summoned police are trying to avoid becoming scapegoats for the violence, and Mboya said the refusal indicates opposition to the investigation within higher levels of the government.

"I think it is a question of them feeling that they are more of a sacrificial lamb," said Mboya. "That is why they are doing that. Provincial administration is answerable to the office of the president. So even as the attorney general gives the clearance, the main people who must actually give that authority for them to talk is the office of the president. The attorney general giving the clearance is just a whitewash that 'I have done this' but we know that these people - they do not report to the attorney general. They report to the office of the president through the ministry of internal security."

Moreno-Ocampo is investigating alleged crimes against humanity that took place in the wake of Kenya's December 2007 presidential elections. Then-rivals President Mwai Kibaki and Prime Minister Raila Odinga accused one another of vote rigging, which set off ethnic violence countrywide. More than 1,000 people were killed and 300,000 displaced in the two months that followed.

Moreno-Ocampo says his investigation is focused on those who plotted and executed the violence. The prosecutor plans to bring two cases against three suspects each when he presents his evidence to The Hague in December.