Judges at the International Criminal Court (ICC) have been urged by its prosecutor not to dismiss charges of crimes against humanity against Kenyan president Uhuru Kenyatta today – claiming that the Kenyan government has deliberately "obstructed" the case against him.
In a final attempt to prevent the collapse of the first ever ICC case against a sitting president, the prosecutor, Fatou Bensouda, has sent a powerful appeal to the judges, contending that "the defence request to terminate the proceedings against Mr Kenyatta should be rejected as premature".
Ms Bensouda has warned that forcing the prosecution to withdraw its charges before her allegation of obstruction is dealt with “would reward an obstructive government and send a message that the court will allow non-co-operative states to thwart ICC prosecutions without sanction.”
Her submission – which has been seen by The Irish Times – goes on: "Withdrawing the charges now would also reward the accused, who heads the government that has obstructed the court's work, and who is in a position to ensure that it complies with its treaty obligations, if he wishes it to do so."
Racism claim
The African Union, of which Kenya is a prominent member, has accused the court of racism, pointing out that the defendants in all eight cases before the ICC are African. It has urged Mr Kenyatta to boycott his trial – something he has refused to do.
However, just before Christmas the prosecutor was forced to admit to the court that because one witness was no longer willing to testify and another had admitted giving false evidence about a key event, she no longer had sufficient evidence to support the charges against the president that he orchestrated post-election violence in Kenya in 2008.
The case had been due to open today, with Mr Kenyatta in the dock in The Hague, but instead the court has scheduled a status conference, which the president will not be required to attend, at which the judges are expected to decide whether or not it will go ahead. Kenya is a signatory of the Rome Statute, which set up the ICC.
Violations
In her submission to the court, the prosecutor writes: "The government of Kenya's continuing violations of its obligations under the accused's leadership negates any argument that he [Mr Kenyatta] would be unfairly prejudiced by the continuation of the proceedings until the government of Kenya's non-co-operation has been adjudicated."
In a heavily redacted annex which accompanies that submission, the prosecutor sets out the details of that allegation of non-compliance, saying investigators were, among other things, unable to interview Kenyan police officers or get access to medical facilities or practitioners thought to have relevant information.
The annex goes on: “In terms of the climate of fear, the prosecution’s case has been weakened by the withdrawal of witnesses concerned that testifying against Mr Kenyatta would expose them or their families to retaliation. Three witnesses . . . have been withdrawn from the prosecution’s list on this basis.
“While the prosecution does not have evidence suggesting that these witnesses were subject to direct intimidation, their reluctance to testify appears to have been motivated, at least in part, by the anti-ICC climate in certain parts of Kenyan society.”
One lawyer close to the case commented: “It’s definitely one of those moments when you realise this is no ordinary criminal court.”
