Kenyatta has his day in court but trial may never take place

The decision by Kenya's president Uhuru Kenyatta to step down temporarily to avoid becoming the first sitting president to appear before the International Criminal Court (ICC) is a striking illustration of the extent to which his case has become a battle of wills over the very legitimacy of the court.

Addressing the nation on Monday, Kenyatta said he would invoke a previously unused article of the constitution to allow his deputy, William Ruto, to take over, while he appears before judges today "as a private citizen" to hear what's to become of the charges he faces of crimes against humanity.

While Kenyatta has adopted a strategy to avoid making history at the ICC, the reality is that the case of The Prosecutor v Uhuru Mugai Kenyatta has not yet opened, will not open today, and increasingly looks as if it may well never open.

Today's hearing is simply a "status conference", a hearing that allows the court to assess where the putative case stands. Where the case against Kenyatta stands is that the ICC prosecutor, Fatou Bensouda, has twice now admitted she does not have adequate evidence to proceed.

In an ordinary case under ordinary circumstances, Bensouda has conceded, that would be enough for the charges to be withdrawn. However, she said that because the lack of evidence is the result of obstructionism by the Kenyan government – something it denies – the case should instead be adjourned indefinitely, or until Nairobi becomes more co-operative.

Violence

That, says the president’s legal team, is not good enough. The charges against Kenyatta relate to allegations that he helped to orchestrate violence following Kenya’s 2007 general election in which more than 1,000 people were killed – and if there is no case, the charges should be dropped.

It is by not clear what the judges will decide today. That they refused last week to allow Kenyatta to “attend” by video link indicates they believe his presence is, if not essential, then at least appropriate. But even with the accused in the room, the options are limited.

The judges could hear what the accused has to say about allegations that his government has failed to co-operate with the court, and then adjourn to consider his evidence. They could exhort him to return home and ensure the phone and bank records being sought are handed over.

Intimidation

They could put to him the prosecutor’s allegation that there has been “unprecedented intimidation” behind the scenes. They could take the view that

Kenya

, a signatory to the Rome Statute that set up the ICC, has been obstructive and refer it to the Assembly of States Parties (the group of countries that support the court) for possible sanction.

Or they could take the view that to allow such charges to continue amounts to injustice for the sake of justice – and bring the case to an end.

The reality is there’s now “a very slim chance of a successful prosecution” if the case goes ahead, and the verdict would be compromised, says Simon Allison of the Institute for Security Studies.

“If the case continues and Kenyatta is formally acquitted, he can never be tried again on these charges. If, however, the charges are dropped, then the prosecutors will be able to resuscitate the trial if and when they are in a position to mount a more solid case against him.”

Whatever transpires today, the hearing will have strong symbolic resonance: an African leader before a "western" court that has prosecuted only Africans, that has been accused by the African Union of "hunting Africans" and where justice and politics are uneasy bedfellows.