As President Kenyatta faces accusers, Hague court case nears collapse

The highest-profile case at the International Criminal Court – Kenyan President Uhuru Kenyatta’s crimes against humanity trial – looked closer to collapse than ever Wednesday as prosecutors admitted they still had no evidence. Mr. Kenyatta's defense team demanded an immediate acquittal.

Key witnesses have disappeared or recanted their testimony against Kenyatta, the only sitting president to appear before the court’s judges. Kenya's president, elected in 2013 despite the ICC indictment, faces five charges. Those date back seven years over alleged links to Kenya’s post-election violence in 2007 when 1,300 people died.

A collapse of this case will inflict serious damage to the reputation of the ICC. The ICC was set up precisely to try cases of mass crimes and genocide where local authorities and courts would not tread due to the impunity of powerful politicians, businessmen, or warlords. The international justice and human rights communities have strongly backed the ICC's efforts while admitting the track record is hardly perfect. 

The ICC’s Chief Prosecutor Fatou Bensouda says her only hope now is to trawl Kenyatta’s bank accounts and cellphone records for new evidence. But she claims Kenya’s government is blocking her from doing that.

This left the court in the curious position Wednesday of summoning Kenyatta to appear in person only to hear prosecution lawyers request for the third time an indefinite start to his trial – while they hunt for new evidence.

Perhaps unsurprisingly, this rattled Stephen Kay, Kenyatta’s British lawyer, who “respectfully requested” that the case be thrown out once and for all. That is also the wish of a growing number of Kenyans angered at the court’s delays.

“We are now in the position that this case has failed, and failed in a way that there is no prospect of it going ahead in the future,” Mr. Kay told the court during the hearings in The Hague, the capital of the Netherlands that has a storied history of international law and courts where the ICC is located. 

“If the prosecutor will not withdraw the charges, you [the judges] can act to terminate this case. It would be an affront to justice if my client was not given a verdict of not guilty.

“If the prosecution had any evidence, we would have a trial. They do not,” Mr. Kay said.  

Three options

Yet part of the problem for the prosecutor is that Kenya’s government is refusing to cooperate with requests for key documents, Ms. Bensouda’s deputy, Ben Gumpert, told the court, echoing statements he gave in an earlier hearing Tuesday.

He went on to request that the case be adjourned indefinitely. The judges can comply, leaving the Kenyatta case open on the court’s docket until such time that fresh evidence is found.

Alternatively, the judges can agree to the defense request for an acquittal, forever clearing Kenyatta of the charges and barring any fresh prosecution.

The third option – and the most likely, say Kenyan legal analysts – is to terminate the case, thus acknowledging that there is no evidence for now, but leaving open the door to fresh charges if new material is uncovered.

The prosecution appeared willing to accept a termination “without prejudice,” meaning the accused is not officially cleared. But Fergal Gaynor, the lawyer representing the victims of the violence, made it known he would oppose such an outcome..

“If this case is terminated, then the [Kenyan] government will see that obstruction of access to evidence is a viable policy,” Mr. Gaynor told the court.  
“If we allow the prosecution to withdraw the charges completely, I frankly think that would be the complete end for the justice process for the victims in this case.”

No date was set for the three-judge panel to deliver its decision. William Ruto, Kenya’s deputy president, faces similar charges in a separate ICC trial, which is already underway.