Kenyatta, who was elected in 2013 and protests his innocence, is accused of crimes against humanity committed in his country during post-election violence in 2007-2008.
On August 28, the Chamber had asked the Prosecutor to confirm whether she was ready to start the trial on October 7, the date that was set following a previous postponement. The trial had originally been scheduled for February 5, but on December 19, 2013, Bensouda asked for more time after the withdrawal of key witnesses.
“The Prosecution respectfully submits that the trial should be adjourned until the GoK (Government of Kenya) executes the Prosecution’s Revised Request for records in full,” says the Prosecutor. “The Prosecution notes with regret that the full and effective compliance required of the GoK and anticipated by the Chamber has not materialized to date.”
Bensouda accuses Kenya of failing to produce records that her office considers crucial. Her previous request for postponement came after one prosecution witness said he was no longer willing to testify and another said he had given false evidence.
“Under the circumstances, it would be inappropriate for the Prosecution to withdraw the charges against Mr Kenyatta before the GoK complies with the Revised Request,” says the prosecution’s notice of September 5. “First, doing so would undermine the purpose of the Chamber’s 31 March 2014 decision – to ensure that the GoK fulfills its cooperation obligations to the Court. Second, the accused person in this case is the head of a government that has so far failed fully to comply with its obligations to the Court.”
Since Bensouda submitted her last request to the Kenyan government on April 8, it has produced 73 pages of documentation, says the notice. However, it says that “some are not responsive to the Revised Request; even the responsive material is a fraction of the information sought. As the Prosecution’s periodic updates demonstrate, the large majority of the material sought in the Revised Request remains outstanding.”
In this judicial saga, which may yet turn up more surprises, the prosecution is facing not only the withdrawal of witnesses but also strong pressure from some African leaders.
Since Kenyatta and his Deputy President William Ruto were elected -- despite the ICC accusations against them --, the African Union has mobilized, claiming that serving leaders of their rank should not be prosecuted by the ICC.
In Ruto’s trial, which has been ongoing since September 2013, the judges agreed to a softening of rules so that he may be absent from certain hearings to carry out his national duties.
It remains to be seen whether Kenyan head of state Kenyatta will also be able to work with this arrangement.