‘Private citizen’ Kenyatta appears before International Criminal Court

In the end, it was the symbolism that mattered most yesterday.

Whether Uhuru Kenyatta became the first sitting president to appear before the International Criminal Court (ICC) or whether he had, in theory, sidestepped that historic notoriety, there he was – facing the judges. That in itself made legal history.

Having abdicated temporarily in favour of his deputy, William Ruto, for the duration of his trip to The Hague, Mr Kenyatta was in relaxed mood as "a private citizen", chatting with his defence team in courtroom one – though opting not to address the court when invited to do so by the presiding judge, Kuniko Ozaki.

However, as he emerged after the four-hour hearing, flanked by his wife, Margaret, and a group of Kenyan MPs, he was more vocal, wearing a bracelet in patriotic colours and declaring, to cheers: “We as Kenyans know where we came from. We know where we are going. Nobody will tell us what to do.”

Clearly for domestic consumption, that was a thinly veiled reference to the view among Mr Kenyatta’s supporters the ICC is “a colonial court” – a judicial instrument of “western” powers “hunting” African leaders with the temerity to take their countries’ futures into their own hands.

Mr Kenyatta is charged with five counts of crimes against humanity for allegedly orchestrating widespread inter-ethnic violence that left more than 1,200 people dead after Kenya's 2007 general election. However, ICC prosecutor Fatou Bensouda, who was in court yesterday, has twice conceded she no longer has the evidence to proceed.

Request to drop charges

Steven Kay QC, counsel for Mr Kenyatta, asked the judges to throw out the charges on the basis they remained unproven after five years of investigation. The prosecution countered with a request for an indefinite postponement, alleging the Kenyan government had obstructed the search for evidence.

That was a theme taken up by Fergal Gaynor, counsel for the victims of the post-election violence, who argued they “should not pay the price for obstruction of justice by the Kenyan government and its long campaign of attrition”.

In Kenya, 28-year-old Alice Achieng, a mother of one who lost all her worldly goods in the bloodshed, said yesterday's proceedings marked an important precedent for accountability.