As President Kenyatta faces accusers, Hague court case nears collapse

Kenya's president answered a summons to the International Criminal Court at The Hague, even as prosecutors admitted they don't have enough evidence to try him for crimes against humanity. 

Peter Dejong/AP
Kenya's president Uhuru Kenyatta appears before the International Criminal Court in The Hague, Netherlands, Wednesday, to appeal for the crimes against humanity case against him to be dropped for lack of evidence. Kenyatta, who this week temporarily handed the presidency to his deputy to avoid becoming the first sitting head of state to appear at the court, says prosecutors have insufficient evidence to merit putting him on trial for allegedly instigating violence after Kenya's 2007 presidential elections that left more than 1,000 people dead. Prosecutors concede that they don't have enough evidence, but argue that Kenyan authorities are blocking their investigation.

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. 

You've read  of  free articles. Subscribe to continue.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.