ICC asked to acquit Kenyatta of crimes against humanity

Lawyers for Kenyan president Uhuru Kenyatta asked the International Criminal Court to acquit him of crimes against humanity charges for a lack of evidence.

Mr Kenyatta (52) today attended the second day of a status conference at The Hague-based court to determine whether to give the prosecution more time to collect potential evidence it says is being withheld by the Kenyan government, or possibly halt the case.

The president, who was charged by the ICC before he came to power last year, denies accusations that he organized ethnic clashes following a presidential poll in December 2007, which resulted in the deaths of more than 1,100 people.

The status hearing has ended and a ruling will be announced at a later date, ICC spokesman Fadi El Abdallah said.

“There is a possibility of the case collapsing if the judges don’t see a realistic chance of the prosecutor getting evidence,” said Njonjo Mue, programme adviser at the non- governmental group Kenyans for Peace With Truth and Justice, by phone from the capital, Nairobi.

The case has been delayed several times as ICC chief prosecutor Fatou Bensouda said prosecution witnesses recanted their testimony and were intimidated.

Prosecution lawyer Benjamin Gumpert reiterated today that the Kenyan government hasn't cooperated with requests for possible evidence, including handing over Mr Kenyatta's bank and phone records.

There’s no sign Mr Kenyatta himself is behind the delays, he said.

Indefinite suspension

The prosecution wants an “indefinite adjournment” until the state cooperates with the investigation, Mr Gumpert said. It would be “pointless” to set another fixed trial date because the state hasn’t delivered in the six months it’s been given.

Abandoning the charges would “show that if a country sticks out long enough, the case will go away,” said Mr Gumpert. “This would be a disastrous interpretation.”

Kenyan attorney-general Githu Muigai said yesterday the East African nation had aided requests for information to the best of its ability and the government will consider more detailed demands as they are submitted.

While the government is cooperating, the prosecution has been searching for evidence that doesn't exist and isn't satisfied by "negative answers" to its enquiries, Steven Kay, Mr Kenyatta's lawyer, said at today's status conference.

The defense is seeking an “acquittal,” said Mr Kay. “If there was evidence we would have a trial.”

Mr Kenyatta, in a rare address in parliament this week, said he’s attending the hearing in his personal capacity and the case won’t infringe on national sovereignty. Mr Kenyatta didn’t give remarks during today’s status conference at the ICC.

Acting president

Kenyan deputy president William Ruto, who is serving as acting president in Mr Kenyatta's absence, is also facing crimes against humanity charges related to the 2007-08 post-election violence. His case is currently being heard by the court. He denies the charges.

The ICC also has the option of reporting the concerns to the Assembly of States Parties, a body of ICC members, which could refer the matter to the United Nations Security Council, Mr Mue said.

“Victims have waited for justice for a long time and it’s important for them to see the person who is accused of the crimes being held to account,” Mr Mue said. “Kenyatta going to The Hague can at least show impunity has reduced, and can start a process of closure.”

The trial should be suspended until Mr Kenyatta's term as president ends to allow him to focus on domestic priorities, including fighting Islamist militancy, Intergovernmental Authority on Development executive secretary Mahboub Maalim said today.

Somalia-based al-Shabaab militants killed at least 67 people in a gun-and-grenade attack on the Westgate Mall in Kenya’s capital, Nairobi, a year ago.

“This is no time to weaken a country and weaken a region by removing its president for trial,” said Mr Maalim.

Bloomberg