The government's quest for a deferral of the Kenyan case at The Hague appears to be collapsing after one of the permanent members to the United Nations Security Council declined to support the move.
The United States is opposed to a deferral of cases against the six named by the International Criminal Court chief prosecutor as bearing the greatest responsibility for the post-election violence.
ICC prosecutor Luis Moreno-Ocampo has expressed his intention to prosecute Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and Eldoret North MP William Ruto in connection with the violence.
Others are former police commissioner Hussein Ali, ODM chairman Henry Kosgey and radio presenter Joshua arap Sang.
US Deputy Secretary of State James Steinberg while visiting Kenya said on Thursday that his government would not support the deferrals, especially if they were meant to protect the suspects.
"What is critical is to make sure accountability is achieved and impunity is avoided," he said. Mr Steinberg said the UN Security Council had not communicated with the US as one of its permanent members on the AU's deferrals request.
He added that because the ICC is the mechanism available and which Kenya submitted to, the US was in its full support.
"The US feels strongly that accountability is a critical element of making sure Kenya can move forward and deal with the past as well as build a strong future," Mr Steinberg said in Nairobi.
News of the US position flies in the face of reports that the government is preparing for a second round of shuttle diplomacy that will take it to nations, some of which hold the key to the decision the country is seeking.
Kenya successfully lobbied the African Union on the matter recently. Vice-President Kalonzo Musyoka's spokesperson Kaplich Barsito told the Sunday Nation that the government was considering how to approach the next stage.
Influential members
The new round will also target countries that are not members of the Security Council but have influence in global affairs such as India and Brazil.
Under the Rome Statutes, the UN Security Council members can ask the ICC to suspend the case for 12 months as Kenya sets up a local process to try the suspects.
The AU wrote to the Security Council after making the decision to back Kenya's request and the letter was expected to reach the UN Secretary General Ban Ki-moon.
But America's assertion that it will not support the process indicates that the effort is likely to collapse of the efforts as two other permanent members - France and Britain - have been very critical of Kenya's commitment to fighting impunity.
Only China has expressly said it supports Kenya's quest. Russia, the other member, has previously indicated its backing but on condition that the local process meets international threshold.
The 15-member Security Council consists of five veto-wielding permanent members and 10 elected non-permanent members with two-year terms.
Of the 10 non-permanent members only three are from Africa - Nigeria, South Africa and Gabon.On Wednesday, Prime Minister Raila Odinga poured cold water on the AU resolution saying that the best way out for Kenya was to lobby the permanent members in the Security Council.
Similar sentiments have been expressed by a senior research associate at the Pretoria-based Institute for Security Studies (ISS) and the International Crime in Africa programme, Max du Plessis, who said that lobbying to defer the cases through the AU was likely to be rejected by the Security Council.
In an analysis published in the ISS website, Prof Plessis describes the move to defer the cases as a political gesture, which serves only to further alienate Africa from the ICC.
"The approach is bad in law. A deferral (under article 16) can only be utilised if the Security Council (under Chapter VII of the UN Charter) determines that there is a threat to international peace and security. Not even the most pessimistic assessment of the ICC's involvement in Kenya could characterise it as such," he says.
Prof Plessis goes on to argue that the most problematic factor for Kenya (and its AU supporters) is that the request will be associated with a now-established pattern on the part of African states to seek deferrals in cases where political elite are implicated.
"Even if Kenya and the AU were able to gain sufficient political support this time round for the request to be granted by the Security Council, it is a stop-gap solution that must be renewed annually in terms of article 16. The likelihood of Kenya mustering the political support for such a legally and politically inflammatory decision on an annual basis is next to nil," says Prof Plessis.
The President of the ICC's member states Chirstian Wenaweser said on Friday that Kenya's request will run into political and legal hurdles. Mr Wenaweser said that only the Security Council can request a deferral for a case but any of the council's permanent members can veto a resolution on the issue.
He repeated what he told the government last week that a better route for Kenya would be to argue to the court that it is capable of handling post-election violence cases. The government's second round of the shuttle diplomacy is expected to begin with Brazil and India in the next two weeks.
The next trip, according to a government source, will take the delegation which is to be constituted afresh to China, Britain, France, Russia and lastly the United States.
Government spokesman Alfred Mutua said the plan to seek deferral of the ICC case had been agreed at the government level and even confirmed that there were minutes to indicate that the meeting actually took place.
The government has pledged to establish a local tribunal to try the post-election violence suspects.
