“The Defence respectfully requests the Chamber to deny the Prosecution’s request for a further adjournment, terminate the proceedings, and issue a final determination of the charges against Mr Kenyatta,” say British lawyers Steven Kay and Gillian Higgins in a notice to the Court on Wednesday.
This comes after Prosecutor Fatou Bensouda on September 5 asked that Kenyatta’s crimes against humanity trial be postponed again, saying she still does not have enough evidence and the Kenyan government is not cooperating fully. She asked that the Court adjourn the trial, which was originally due to start in February, “until the GoK (Government of Kenya) executes the Prosecution’s Revised Request for records in full.”
Kenyatta is charged with crimes committed during post-election violence in 2007-2008. A pre-trial Chamber of the ICC confirmed the charges in January 2012.
However, the Defence argues that the charges were confirmed on the basis of false evidence and that the Prosecution has no case. It says Kenyatta’s rights are being violated:
“Mr Kenyatta’s fundamental fair trial rights have been subordinated in the process of the Prosecution seeking to divert blame to the Government of Kenya for the failure of its case,” say Kay and Higgins. “By proclaiming insufficiency of evidence ‘at the door of the court’, yet seeking to prolong the proceedings indefinitely, the Prosecution has placed the Accused in a position not countenanced by the Statute, nor by any true conception of justice, namely that of an individual in respect of whom there is insufficient evidence to prosecute but who must nevertheless endure the stigma of criminal charges and subjection to a prolonged criminal process.”
This is the second time the Prosecution has asked for a postponement of the trial. Its first request in December 2013 came after one prosecution witness said he was no longer willing to testify and another said he had given false evidence.
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.
JC/ER