The International Criminal Court (ICC) has overruled the objections of Kenya and found that the post-election violence cases remain admissible (within the jurisdiction of the court). A detailed discussion of the ruling, and the case, is available here. Kenya has announced that it plans to appeal.
The ruling is a significant test of the issue of complementarity. A founding principle of the court, complementarity means that the court can only pursue cases that are not capable of, or were not adequately pursued in national courts. Kenya had initially cooperated with the investigation, but then argued the cases were now capable of being resolved in national courts.
The court found that the Government of Kenya had not shown that there were open cases involving the six officials detained by the court. Rather the government argued that there had been reforms in its judicial system and the cases could proceed. The court determined that in the absence of actual open prosecutions of the six accused:
… the Chamber considers that there remains a situation of inactivity. Consequently, the
Chamber cannot but determine that the case is admissible following a plain reading
of the first half of article 17(l)(a) of the Statute. It follows that there is no need to
delve into an examination of unwillingness or inability of the State, in accordance
with article 17(2) and (3) of the Statute.
The argument over inadmissibility will likely remain ongoing as the case proceeds.