[5][6] The six suspects, known colloquially as the "Ocampo six"[7] were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 on charges of crimes against humanity and summoned to appear before the Court.

During the investigation the ICC prosecutor charged Walter Barasa, Paul Gicheru and Philip Bett with crimes against the administration of justice.

[11] The incumbent President, Mwai Kibaki, who represents the Party of National Unity and Raila Odinga from the Orange Democratic Movement were the leading candidates.

On 16 July 2009 the Waki commission delivered a copy of his report along with six boxes of documents and supporting materials to the International Criminal Court along with a sealed envelope containing a list of people who could be implicated in the violence.

[19] The judges who made this decision, Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser noted in their written ruling that while Article 15 of the Rome Statute does allow for the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC.

In his dissent he wrote: In essence, the main reason for this position is the following: both, my interpretation of article 7(2) (a) of the [Rome] Statute, which sets out the legal definition of "attack directed against any civilian population" as constitutive contextual element of crimes against humanity, and my examination of the Prosecutor's Request and supporting material, including the victims' representations, have led me to conclude that the acts which occurred on the territory of the Republic of Kenya do not qualify as crimes against humanity falling under the jurisdictional ambit of the Court.

[22]On 15 December 2010, Prosecutor Luis Moreno Ocampo named six suspects, and made an application to Pre-Trial Chamber II for summonses to be issued to them.

[7] The individuals named by Moreno Ocampo were: It was reported in 2011 that Kenyatta has recruited British lawyers Steven Kay and Gillian Higgins, who previously defended Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, to lead his legal team.

[29] Francis Muthaura initially appointed another British lawyer, Karim Ahmad Khan, who previously led the defence of Charles Taylor at the Special Court for Sierra Leone, and subsequently also recruited Essa Faal and Shyamala Alagendra who both formerly worked in the ICC Prosecutor's office.

[30] Ali's defence was led by Canadian John Philpot, Kosgey's by Julius Kemboi, and William Ruto appointed Dr. Kindiki Kithure and Katwa Kigeni.

[29] The Kenyan government agreed to pay the legal costs of Francis Muthaura and Mohamed Ali due to their actions being taken in the course of their public employment.

[40] In the case of Kenyatta, Muthaura and Ali the Chamber ruled that there were reasonable grounds to believe that Uhuru Kenyatta and Francis Muthaura were guilty as indirect co-perpetrators of the crimes of which they were accused but in the case of Mohammed Ali, the Chamber ruled that his contribution was not essential to the commission of the crimes and so he was charged with having otherwise contributed.

[44] During the hearing, presiding Judge Ekaterina Trendafilova expressed concern at some of the actions of the suspects, in particular speeches that may have been made in an attempt to incite further violence in Kenya.

Speaking at the initial hearing she said: It came to the knowledge of the Chamber by way of following some articles in the Kenyan newspapers that there are some movements towards retriggering the violence in the country by way of using some dangerous speeches.

An application by the Office of the Prosecutor to impose conditions on the suspects' summonses including that they provide details of all their home addresses and that they pay a bond to the Court was rejected by Judge Trendafilova.

[46] In June 2011, Pre-Trial Chamber II requested that the Prosecutor, defendants, and victims comment on the possibility of holding the confirmation of charges hearings in Kenya rather than in The Hague.

[60] Sang, who at the time of the election was the presenter of a radio programme on the Kalenjin language station KASS FM was accused of using his broadcasts to spread instructions and incitements to violence.

The prosecution alleges that members of the network attacked Turbo town on 30 and 31 December 2007, resulting in at least 4 deaths and with one witness claiming that he saw more than 200 dead bodies.

[62] Additionally the prosecutor alleges that network members attacked the Huruma, Kiambaa, Kimumu, Langas and Yamumbi areas of Eldoret, resulting in 70 to 87 deaths.

[68] The prosecutor alleges that Muthaura, Ali, Kenyatta and the leadership of the outlawed Mungiki sect "agreed to pursue an organizational policy to keep the PNU in power through every means necessary, including by orchestrating a police failure to prevent the commission of crimes".

[72] The prosecutor claims that in preparation for the post-election violence a meeting took place at the State House in Nairobi on 26 November 2007 between Muthaura, Kenyatta, Mungiki representatives and President Kibaki.

[73] At a second meeting, held on 30 December Kenyatta is accused of giving some MPs and Mungiki coordinators KSh.3.3 million/= each (approximately US$35,000) with which to buy guns to attack Nakuru.

[81] The prosecutor alleges that in Nakuru forty five cases of sexual violence were reported including rapes, forced male circumcisions and penile amputation.

[82] One witness claims that Naivasha's men were forced to remove their underwear to confirm their ethnicity and forcibly circumcised if their uncircumcised penis identified them as Luo.

Bensouda stated that there were reasonable grounds to believe that Gicheru and Bett had used "an organized and systematic criminal scheme", including bribes, to persuade witnesses to withdraw their statements or refuse to testify.

[87] Kenyan Attorney-General Githu Muigai issued a statement that the pair would not be required to vacate office until their appeals against the confirmation are concluded,[88] however Kenyatta and Muthaura both resigned their posts of Finance Minister and Cabinet Secretary respectively on 26 January.

[99] Following Moreno Ocampo's initial announcement of his intention to bring prosecutions against the six suspects, the US[100] President Barack Obama called upon Kenya to co-operate with the ICC.

[101] In a statement he said: I urge all of Kenya's leaders, and the people whom they serve, to cooperate fully with the ICC investigation and remain focused on implementation of the reform agenda and the future of your nation.

In particular the African Union has cited this geographical imbalance of ICC investigations in its decisions not to co-operate in the proceedings against Sudanese President Omar al-Bashir and Libyan leader Muammar Gaddafi.