ICC to consider Kenyatta case

The International Criminal Court in The Hague will hold hearings on Monday afternoon on whether to proceed with its case against Uhuru Kenyatta, who was declared Kenya’s president-elect this month but faces charges of crimes against humanity stemming from post-election violence in 2007.

If the case goes forward, it would mark the first time the court has prosecuted a sitting democratically elected head of state. The ICC case is already deeply entangled in Kenyan politics and became a rallying cry for Mr Kenyatta ahead of the March 4 polls.

Defence lawyers are asking for the case to be sent back to the pre-trial stage, saying the prosecution withheld exculpatory evidence and no longer has any witnesses to testify to some of its key claims.

Last week the ICC’s chief prosecutor dropped charges against Mr Kenyatta’s alleged co-conspirator, Francis Muthaura, saying it was unable to proceed because of the death, intimidation and bribery of key witnesses.

But the prosecutor, Gambian lawyer Fatou Bensouda, wrote that that decision would not affect the prosecution of Mr Kenyatta, the son of Kenya’s founding father Jomo Kenyatta. Neither, she wrote, would Mr Kenyatta’s election as president.

“While we are all aware of political developments in Kenya, these have no influence, at all, on the decisions that I make as prosecutor of the International Criminal Court,” Ms Bensouda wrote.

Mr Kenyatta and Mr Muthaura were charged with complicity in murders committed during inter-ethnic violence in 2007 and 2008, after disputed election results. Mr Kenyatta allegedly helped facilitate attacks on ethnic groups that supported the main challenger Raila Odinga.

More than 1,000 people were killed and 660,000 were left homeless by the violence. The ICC is also trying William Ruto, Mr Kenyatta’s running mate who is now vice president-elect, and a radio programmer, Joshua Sang, over violence committed against Mr Kibaki’s supporters.

If the charges against Mr Kenyatta are dismissed, this would bolster the impression that the court is able to render justice on high-ranking officials only after they have fallen from power.

“We’ve been saying the ICC is the one way you’re able to hold top brass accountable for the 2007-2008 violence,” said Carole Theuri, programme co-ordinator for Kenyans for Peace with Truth and Justice, a non-governmental organisation. “But now seeing people like [Francis] Muthaura [get off] bolsters people in government to say the ICC can’t touch us and we can do anything we want.”

The court has not said when it will issue a judgment on whether or not to let the trial, due to start in July, go forward.