Kenyatta lawyers try to get case thrown out of ICC

International court prosecutors admit they don't have enough evidence against Kenyan president Uhuru Kenyatta to move forward with their case.

Peter Dejong/REUTERS
Kenya's President Uhuru Kenyatta (r.) speaks to a member of his defense team as he appears before the International Criminal Court in The Hague October 8, 2014. Kenyatta arrived at the International Criminal Court on Wednesday for a hearing over his indictment on charges of crimes against humanity, making him the first sitting leader to appear at the global tribunal.

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.

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.