A local justice mechanism, previously rejected by the government and the National Assembly, is suddenly the preferred means for bringing justice in relation to the post election violence that occurred in Kenya in 2007. The announcement by the Prosecutor of the International Criminal Court of the names of individuals against who he has applied or summonses has fueled the demand for such a mechanism and there is now in a serious discussion of its possibilities. While, in principle, a local justice mechanism would desirable and while, eventually, the country must consider the establishment of such a mechanism, there are at least five reasons why it is not possible, for the time being, to put in place a credible local justice mechanism. In the circumstances, there is little chance for now of demonstrating to the ICC that Kenya can meet its complimentary obligations as expected under the Rome Statute.

First, political leadership on Kenya's relationship with the ICC has been particularly poor and constitutes the single most important reason why it would be difficult to convince the ICC and the international community, that Kenya has the capacity to conduct genuine local prosecutions of the post election violence suspects. During the stormy debate in the National Assembly on whether or not there had been consultations between the President and the Prime Minister before the nomination of the proposed Chief Justice and Director of Public Prosecutions, the Vice President informed the house that nominations to these offices had to be made before the African Union summit in Addi Ababa because the President needed to use this to seek support for the deferral of the ICC investigations in Kenya. In other words, the appointment of persons to these offices was an act of ticking the boxes for the benefit of the world, and not necessarily a genuine step in the country's reform process.

Further, the relationship between the President and a number of those named by the prosecutor has visibly improved and he has gone out f his way to affirm them in ways that he had never done before. The President has given his active support to the mobilization of the country against the ICC, turning up in a public rally that endorsed a political union necessitated by the ICC cases. It is not easy to see how the political system in Kenya would, in these circumstances, turn around and support trials that may threaten this new alliance.

Also, the internal disagreements within the coalition government do not provide a favourable background against which a deferral of he Kenyan case can be sought. While it may be understandable that relations are now so poor that one part of the government is not able to talk to the other a deferral can only be granted if the entire government, and not just a part of it, supports such a request, since the ICC will give equal weight to the views of the entire government. Raila Odinga, now vilified and shunned by Kibaki's men, is still needed if their desire to escape ICC justice is to work.

Secondly, while a local justice mechanism will heavily rely on a reformed Judiciary, judicial reforms are only just getting underway. A significant component of the judicial reform process, the vetting of judges and magistrates as required by the new Constitution, is still under discussion. Once agreed upon, it will take a long time to implement the vetting process. Also, the appointment of the new Chief Justice, an aspect of judicial reforms which should not have been too contentious, has got off to a most controversial start. Those who wished to assist the power elite in fending off the ICC should, at least, have ensured that the country had a credible process for the appointment of the next Chief Justice. It would have become difficult, with a credible Chief Justice in office, to argue against a local justice mechanism.

Thirdly, the country is discussing and has not settled on the appointment of the Director of Public Prosecutions, which is tied with the controversy surrounding the various constitutional offices that the President tried to make nominations for. Kenya has never had a constitutional office of the DPP. I hope there is no assumption that prosecutors working for the Attorney General will automatically transition to become officials in the office of the new DPP. Rather, I expect that the new DPP will have to set up his office from scratch, even if he may employ some of the personnel working for the Attorney General at the moment. The point is that the DPP’s office must be conceived as a completely new office, which it is, and not a substitution for the one under the leadership of the DPP working for the Attorney General. In the United Kingdom, the DPP is normally appointed from private practice, as opposed to being drawn from the prosecution services. Once he completes his fixed term of office, he usually returns to private practice, where he came from. It is to be hoped that this is the practice that will be institutionalized in the appointment of the Kenyan DPP. Whatever the case, however, the office of DPP is at best under discussion and cannot, for now, support a local justice mechanism.

Fourth, a sound witness protection system is needed if Kenya is to undertake genuine local prosecutions. The Witness Protection Act, passed in 2006, had to be amended even before it was implemented. Amendments to the Act have since been made and came into force in June 2010. If implemented, the Act provides a reasonable basis for the protection of witnesses. However, the Act has missed funding since its establishment, and does not exist beyond the paper on which it is written. The mechanisms proposed in the Act would, in effect, necessitate creating an elaborate new office from scratch. Other than the physical infrastructure, the witness protection agency will need to develop a culture that will endear the confidence of witnesses.

Finally, there can be no local justice without sufficient reforms to the police force to support the requisite investigations. As established by the Waki Commission, members of the police force were involved in the crimes committed during the post election violence, including sexual violence. Stung by the criticism that they received from the Waki Commission, the police attempted to set up a task force to investigate the sexual violence committed during the post election violence. However, these investigations lacked credibility and ended in failure. Under the same circumstances, another attempt to investigate these same crimes is also likely to fail. Although there are many innocent police officers, the police force which is accused of crimes committed during the post election violence must still be relied upon to investigate those crimes. There is an inherent conflict in this. Police reforms are necessary to separate the good from the bad. If this happens, the police can then take their place in the law enforcement chain in connection with the post election violence. Until this happens, there can be no confidence in any investigation carried by the police.

So far, two cases arising from the post election violence have been presented to court. One of these involved four accused persons and arose from the burning of the Kiambaa church in Eldoret, one of the egregious incidents in the post election violence. The second case arose from police shooting in Kisumu, which was captured on camera. Both prosecutions ended in acquittals and each of them is a study in prosecution frailties of different kinds.