Lawyers for Kenya's president on Wednesday asked judges at the International Criminal Court to drop the crimes-against-humanity case against him — and acquit him — saying the prosecution has collapsed and cannot be resurrected.
Prosecutors have acknowledged that they do not currently have enough evidence to prosecute Uhuru Kenyatta for his alleged role in instigating and funding violence that left more than 1,000 people dead and forced 600,000 people from their homes in the aftermath of Kenya's 2007 presidential elections.
But they blame the government Kenyatta leads for obstructing their investigation by failing to turn over potential evidence including Kenyatta's phone records, tax returns and bank account details.
"This case has failed and it has failed in a way that means there is no prospect of it going further," Kenyatta's defense lawyer Steven Kay told a three-judge panel. "If the prosecutor does not intervene, you act to terminate."
The status conference in Kenyatta's case has touched on the fundamental issue of how the world's first permanent international criminal court can successfully prosecute government leaders when it often has to rely on the cooperation of the same governments in gathering evidence.
Kenya's Attorney General told the court in a hearing on Tuesday that prosecution requests for evidence are not detailed enough for him to act on.
Prosecution trial lawyer Benjamin Gumpert cautioned judges that scrapping the case now would send a worrying message to other governments who could face prosecution in the future.
Gumpert said such a decision would be interpreted as "the court saying that if a country sticks out for long enough obstructing proper inquiries being made by the prosecution ... then the case ... will go away."
That interpretation "would be disastrous," he added.
The prosecution has asked the judges to adjourn the case indefinitely until Kenya fully cooperates in its investigation. The panel is not expected to rule on either request Wednesday.
Kenyatta's trial was scheduled to start — after lengthy delays — on Tuesday, but judges granted prosecutors a postponement because of the lack of evidence. The trial has twice been postponed and no starting date has been set. Prosecutors' case has been weakened by witnesses refusing to testify or recanting their statements.
The issue of obtaining evidence against heads of state goes to the heart of problems at the world's first permanent war crimes tribunal — it has no police force and relies on member states for assistance in investigations and arresting suspects.
"The way the judges deal with the cooperation issue has significant implications for the court," said Elizabeth Evenson of Human Rights Watch. "The judges will need to take whatever decisions they think necessary to bring about full cooperation."
Kenyatta this week temporarily handed the presidency to his deputy to avoid becoming the first sitting head of state to appear at the court — although the deputy, William Ruto, already is on trial at the Hague-based court for his own alleged involvement in the postelection violence in 2007 and 2008.
A smiling and confident-looking Kenyatta was greeted by dozens of cheering and chanting supporters as he arrived outside court for the hearing and smiled at them as he walked into the courtroom. He did not speak during the hearing.
Kenyatta is charged as an "indirect co-perpetrator" with murder, deportation, rape, persecution and inhumane acts allegedly carried out against his political opponents in the 2007 election.
Kenyatta was elected president last year, despite having been indicted by the ICC, using his prosecution as an us-against-the-world rallying cry.
The ICC often faces criticism in Africa because all the suspects it has indicted since its creation in 2002 are from the continent. In a speech Monday, Kenyatta said Africa's "century of exploitation and domination" by the West continues.