President Uhuru Kenyatta’s defence team said on Wednesday his crimes against humanity case before the International Criminal Court “has collapsed”, as judges mulled dropping the high-profile trial.
“The prosecution has realised that its case has collapsed,” lawyer Steven Kay told judges in The Hague, where Kenyatta faces charges for his role in the deadly 2007-08 post-poll violence that rocked the country.
The ICC last month postponed President Kenyatta’s trial after prosecutors said they no longer had enough evidence to put him in the dock.
Kenya’s top politician was supposed to go on trial on Wednesday, but instead judges were listening to arguments on whether to withdraw the charges.
President Kenyatta, 52, is facing five counts of crimes against humanity allegedly committed under his direction in the aftermath of the disputed elections, in which prosecutors say more than 1,100 people died.
In an apparent last bid to keep the case alive, prosecutors now want judges to rule that Nairobi has failed to cooperate with their investigation — especially in their request for financial statements which they say could prove Kenyatta’s role in funding the violence.
Prosecutor Benjamin Gumpert said the investigation against President Kenyatta had run into a brick wall and that a last avenue was to force Nairobi to hand over Mr Kenyatta’s financial records.
“I don’t rule out the possibility that full disclosure of Mr Kenyatta’s financial records, if indeed our case theory is correct… might be sufficient for the case to be brought.”
But he added: “That really is just the wildest speculation.”
President Kenyatta’s lawyer Kay called the prosecution’s submission a “blame-shifting exercise onto the Kenyan state at the expense of the prosecution”.
Kenyatta’s trial and that of his rival-turned-partner, Kenyan Deputy President William Ruto, who faces similar charges, have been dogged by problems and delays.
This included accusations of severe witness intimidation and withdrawals, false claims by other witnesses, and Kenya’s international campaign to put the trials on hold.
“The bottom line is that (President Kenyatta’s) government continues to thwart the prosecution’s efforts to obtain information that may shed light on key allegations in this case,” ICC chief prosecutor Fatou Bensouda said in a court document last Friday.
President Kenyatta’s lawyers have previously asked the ICC to drop the charges.
A lawyer representing the victims of the Kenyan violence blamed Kenya and Mr Kenyatta for obstructing the case.
“Vast sections of the (Kenyan) state apparatus were mobilised in a vigorous and energetic defence of the rights of those… Kenyans standing trial before the court, totally ignoring the rights of hundreds of thousands of Kenyan victims of the post-election violence,” Fergal Gaynor said.
“Instead of acting to secure justice for the victims… the accused (Mr Kenyatta) instead took steps to frustrate their search for the truth,” he added.
African leaders frequently complain that the ICC discriminates against their continent.
Arguments include allegations that the court is targeting Africans and that Kenya’s leaders need to be available to tackle Al-Qaeda-linked militants who have turned neighbouring Somalia into a major global jihadist hub.
Both President Uhuru Kenyatta and his deputy William Ruto, his one-time foe and now political partner, have maintained their innocence.
Both men have pledged their cooperation with the ICC, but both have also complained that the cases, parts of which they are obliged to attend in The Netherlands, were hampering their running of the country.