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Is the ICC case against Kenyatta finished?

Katrin Matthaei / cmFebruary 6, 2014

Prosecutors at the International Criminal Court have admitted they lack enough evidence to continue pushing for a conviction of the Kenyan leader Uhuru Kenyatta. The ICC accuses Kenyan government of "obstructionism."

Image: Getty Images

Benjamin Gumpert, a prosecutor at the ICC confessed on Wednesday (02.05.2014) to Justice Kuniko Ozaki, presiding judge of Kenyatta's case, that the prosecution currently does not have enough evidence for a conviction of Kenya's President Uhuru Kenyatta.

ICC chief prosecuto Fatou Bensouda in her official robes at the International Criminal Court
ICC chief prosecutor Fatou Bensouda has repeatedly complained that witnesses face intimidationImage: Reuters

The first trial of a sitting head of state by the International Criminal Court seems to be falling apart. "The prosecution has collapsed," Kenyatta's defense lawyer Steve Kay said.

President Kenyatta's trial is the most prominent case in the court's 12 year history. . Kenyatta is accused of crimes against humanity in connection with post-election violence in 2007-08. More than 1,000 people were killed and many of the 600,000 who were displaced are still terrified to return to their home villages.

Diminishing body of evidence

Prosecutor Benjamin Gumpert blamed their lack of evidence in Kenyatta's trial on sabotage by the Kenyan government. He complained that Kenya has refused to hand over important documents such as details of Kenyatta's financial transactions which could link the president to the alleged crimes. The prosecution claim the documents could contain evidence that Kenyatta may have paid the perpetrators.

The prosecutor's troubles do not end there. An increasing number of key witnesses have been withdrawing from the case.

Many Africans who support the International Criminal Court find the setbacks in the Kenyatta case hard to understand. They see the court as being partyl to blame. It should have insisted, they say, that Kenyatta - just like the other defendants - be kept in custody in The Hague. As Chris Peter, professor of law at the University of Dar es Salaam in Tanzania observed: "Even if a person is a president, but he still jusrt a defendant and must be treated as such."

Picture showing Kenyan rioters branding a matchete and raising stones as fire burns in the background during the 2007 post election violence
Kenya's 2007 post-election violence was the worst since the country gained independence in 1963Image: picture-alliance/AP Photo

The weaknesses of the ICC

But the court decided instead to allow him a lot of leeway. "And then suddenly there were problems with witnesses, campaigns against the court in the African Union and at the UN," Peter said.

Last October, Kenyatta and other critics of the ICC branded the court as a "neo-colonial instrument." Those critics have since been demanding that incumbent heads of state exempted from prosecution at the ICC. President Kenyatta has used his power as president at all levels to try and undermine the court's authority.

The case of the Kenyan leader has revealed fundamental weaknesses within the International Criminal Court. The prosecution is only as powerful as the defendant's native country permits it to be. The ICC does not have its own investigators which trace back the chains of command linking the militias or soldiers in distant countries.

Kenyan President Uhuru Kenyatta listens attentively at the AU conference in Addis Ababa.
Kenyatta denies the charges of crimes against humanity brought against him by the ICCImage: Reuters

"The main weakness of the court is that it is dependent on the backing of individual states when collecting evidence, making witnesses available or transferring suspects to the court;" said Andreas Zimmermann, professor of international criminal law at the University of Potsdam said.

So without cooperation from Kenya there can be no evidence for the prosecution of the country's president.