By Godfrey Musila

In a meeting with Dr Kofi Annan, President Kibaki and Prime Minister Raila have reportedly stated that they will not formally write to the Prosecutor of the International Criminal Court (ICC) referring the Kenyan situation to the ICC for investigation and possible prosecution of key perpetrators of crimes committed during the post-electoral violence.

This position raises a number of difficult questions.

Since pressure from various sources has been directed at Government, leaders seem to have perfected the art of vagueness, stating publicly that while they are "prioritising reconciliation", "the door remains open for the ICC to come in".

The apparent refusal to refer the situation to the ICC, if true, is significant.

While it is not the only trigger of the Court’s jurisdiction — the route through which the Court formally commences investigations into a situation — a referral from those exercising the powers of Head of State and Government would signify that the Government is behind the process, and that it will support the Court’s investigation and prosecutions should these commence.

Lacking any machinery to give effect to its orders, the ICC depends on government co-operation to obtain evidence and suspects for trial and to protect witnesses and victims.

Some have said that since the September 30 deadline agreed between the Government and ICC prosecutor for the former to show progress in establishing a credible judicial mechanism expired, the prosecutor can somehow come in automatically.

This couldn’t be farther from the truth. It does not accord with both the Rome Statute and the July 3 agreement signed between the prosecutor and the Kenyan delegation to The Hague.

That agreement, in conformity with the Rome Statute, specifically provides that the Government will refer the situation should it fail to make progress towards prosecuting suspects.

And while some ministers have proclaimed that the "prosecutor is free to proceed" two points must be made here.

First, ministers — unless acting with express authority from Head of State and Government — lack powers to refer a situation to the ICC.

A referral — just like ratification of treaties — is an expression of state sovereignty, an exercise reserved for presidents or PMs, or in the Kenyan case, both acting together.

Three of the four situations currently being investigated by the prosecutor — DRC, Central African Republic and Uganda — have been referred to the ICC by express written invitation from their Presidents.

There is a second trigger mechanism built within the Rome Statute. If the Kenyan principals do not want to act, as they should, the ICC Prosecutor will have to invoke his powers to commence investigations.

It is reasonable to conclude he would only invoke this power if the authority does not want to make the referral to the Court. The danger, however, is that such action could elicit opposite reaction from the Government — refusal to co-operate.

It is telling that this power is yet to be invoked by the Prosecutor of the ICC. However, the prospect that the prosecutor would be seen to act in vain (with credibility implications for the ICC) — should Kenya refuse to co-operate after he formally opens investigations on his won — leads me to reasonably conclude that he is unlikely to take this route.

The perception that "ICC is targeting Africans" however misguided, is likely to weigh heavily on Ocampo’s mind.

Invoking his powers will be a last resort, after all is done to convince the Government that acting on their own is the best course of action.

The third trigger mechanism involves the Security Council of the UN making a referral. This is the least likely route, in view of the fact that Kenya has not been on the agenda of that UN body.

Since these choices are mostly dictated by considerations in political terrain that is susceptible to change, we are bound to see a new twist in the plot, including Government taking seriously the idea of prosecuting suspects locally.

Meaning the ICC process could be obviated. For now, it seems the ball is squarely in Mr Moreno-Ocampo’s court.

—The writer is a senior researcher at Institute for Security Studies in Pretoria, South Africa.