On September 5, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a notice to the court stating that it will “not be in a position to proceed” with the trial against Kenyan president Uhuru Kenyatta. If agreed to by the judges, this will mark the fifth time the start of the trial, which was scheduled to begin on October 7, has been postponed.
The most recent delays stem from a March 2014 order from Trial Chamber V(b) to allow additional time for the resolution of cooperation issues between the Government of Kenya and the OTP. The prosecution’s request in the Kenyatta case covers eight categories of documents, including: company records; land ownership and transfers; tax returns; vehicle registration; bank records; foreign exchange records; telephone records; and intelligence records. The prosecution has argued that the documents could either bolster its case against Kenyatta or diminish it, but it was important they receive them to make such an assessment.
Kenyatta is charged with five counts of crimes against humanity allegedly committed during the post-election violence in Kenya in 2007-2008. The charges include murder, deportation or forcible transfer, rape, persecution, and other inhumane acts. During the period of post-election violence, Kenyatta was a senior member of the Party of National Unity, allegedly presiding over the widespread persecution of members of the main opposition party.
In Friday’s notice to Trial Chamber V(b), the OTP explained the reasons why it is not in a position to proceed to trial. From an evidentiary standpoint, the prosecution said an adjournment is needed because it does not have the evidence available to prove Kenyatta’s alleged criminal conduct beyond a reasonable doubt. The prosecution noted that the “full and effective compliance required of the GoK [Government of Kenya] and anticipated by the Chamber has not materialized to date.” The prosecution claimed that the Kenyan government has either been not responsive to requests for documents, and “even the responsive material is a fraction of the information sought.”
Despite the acknowledgement that the OTP lacks sufficient evidence to put Kenyatta on trial, the prosecution noted that it would be “inappropriate” to withdraw the charges completely. The OTP said withdrawing charges would undermine the March 2014 trial chamber decision ordering the Kenyan government to fulfill its cooperation obligations and that Kenyatta’s position as “head of a government that has so far failed to comply with its obligations to the Court” makes him ultimately responsible for that failure.
Lawyers for Kenyatta and the legal representative of victims in the case have until September 10 to file a response to the prosecution notice.