THE HAGUE (Reuters) - A defense attorney for President Uhuru Kenyatta called on judges at the International Criminal Court to throw out allegations of crimes against humanity, saying prosecutors had failed to prove their case after five years of investigations.
Prosecutors countered that Kenyatta’s government obstructed the hunt for the evidence and requested an indefinite postponement of the trial. They said sanctions should be considered to force Nairobi to comply with its obligations to cooperate.
“The case has failed and it has failed in a way that means there is no prospect of it going further,” defense lawyer Stephen Kay said, calling on the judges to find his client not guilty. If the prosecutor doesn’t offer more evidence, “you act to terminate.”
Kenyatta was summoned to the Hague-based tribunal to answer questions about his indictment on charges of orchestrating a wave of deadly post-election violence that swept Kenya in 2007.
He is the first sitting head of state to answer a summons to the court, established 11 years ago to prosecute individuals for serious crimes when domestic courts are unwilling or unable to do so.
Judges adjourned the hearings and are expected to make a decision about the trial’s future before the end of the year.
Kenyatta, dressed in a dark blue suit, did not speak in court, but was defiant in comments to journalists as he left the court to catch a flight back home.
“We as Kenyans, we know where we came from, we know where we are going, and nobody will tell us what to do,” he said.
Kenyatta denies charges that he acted as an “indirect co-perpetrator” in crimes, including murder, deportation or forcible transfer, rape, persecution and other inhumane acts.
The legal impasse is unprecedented in international law. Previous high officials from conflicts in the former Yugoslavia and Rwanda were under arrest when they appeared in court, and were no longer in power at the time of their appearance.
Like his deputy and former rival William Ruto, who faces similar but separate charges, Kenyatta is attending voluntarily.
Prosecutors have accused Kenyan authorities of refusing to hand over bank and phone records, obstructing the case which has faced a series of delays since it was launched five years ago.
“If the Kenyan government was genuinely using its best efforts to comply, it would find and disclose those records and it would ensure that the telephone companies conduct appropriate searches,” prosecutor Benjamin Gumpert said.
Allowing the charges to be dropped in the face of such obstruction would set a dangerous precedent, encouraging politically powerful suspects to defy the court, he said.
“It would be wholly inappropriate for the case to be withdrawn where there has been obstruction of the proper inquiries,” Gumpert told the tribunal.
Gumpert said there was no evidence that Kenyatta himself had intentionally interfered in the investigation, but said Kenya was not handing over the evidence it needed.
At the heart of where the violence started in the lush Rift Valley town of Eldoret, 300 km (190 miles) northwest of the capital Nairobi, locals crowded around radios and television sets at restaurants and hotels to watch the proceedings.
Kenyatta, from Kenya’s biggest Kikuyu ethnic group, and Ruto, a Kalenjin, were in rival camps in the 2007 election race. They were accused of inciting gangs who butchered people from opposing groups, using machetes and bows and arrows
In the town of Naivasha, where the worst revenge attacks by suspected members of a Kikuyu militia took place, more than one hundred people at a displacement camp got on their knees and prayed for Kenyatta before the court proceeding started.
“The prosecution has openly said that they do not have evidence against the president and this is a clear indication that the investigations were flawed,” said Christine Ndida, a mother of three who fled Kericho at the height of the fighting.
“We have said in the past that Uhuru was not among those who planned the attacks and this will be exposed very soon when this bad cloud passes away,” she said.
Supporters wept as they prayed, before turning to watch the proceedings on television.
The mood was sullen in another part of Naivasha, where a majority of the victims of the electoral violence live, but faith in proceedings has waned due to the weak prosecution case.
“Our only hope of getting justice lay in the ICC, but we are disappointed by the manner the case against Uhuru has proceeded with the prosecution failing to offer enough evidence,” said 28-year-old flower worker David Omulo, who lost a brother.
For some, however, Wednesday’s court proceedings marked an important precedent for accountability.
“All along we questioned if Uhuru would really go to The Hague, but it is a warning to those planning chaos that no one is above the law,” said Alice Achieng, a 28-year-old trader and mother of one, who lost all her belongings in Naivasha.
Judges were considering a request from prosecutors to adjourn the trial and refer Kenya’s alleged non-cooperation to the court’s member states, who could then decide on sanctions.
Prosecutors told the court they had nine witnesses ready to testify that Kenyatta and his allies had paid and directed perpetrators of the post-election violence, in which 1,200 people died, and corroborating telephone records.
“The defense have suggested that the prosecution has no case, that all the evidence it once relied upon has exploded. But this is not the case,” said chief prosecutor Fatou Bensouda.
Kenyatta had it in his power to ensure his country cooperated with the court, said Fergal Gaynor, a lawyer representing the interests of victims of the violence.
“The accused is without question the most powerful and influential individual in Kenya,” he said. Kenyatta “is the one person who can remove the obstruction to this case.”
Kenyatta and allies have warned that the trial risks destabilizing a region that faces a threat from resurgent militant Islam in Somalia.
“This is no time to weaken a country and a region by removing its president for trial,” said Mahboub Maalim, head of the Intergovernmental Authority on Development regional organization, who was in The Hague for the hearing.
The case is seen as a major test of the ICC which has secured only two convictions since it was set up.
Writing by Anthony Deutsch; Additional reporting by Antony Gitonga in Naivasha and Gabriel Kudaka in Eldoret; Editing by Dominic Evans