On September 10, the defense for Kenyan President Uhuru Kenyatta filed a response to the Office of the Prosecutor’s (OTP) request to adjourn the case until the Government of Kenya complies with its cooperation obligations.  Kenyatta’s trial at the International Criminal Court (ICC) is scheduled to begin on October 7 for his alleged role in the violence that occurred in the aftermath of the December 2007 presidential election.

The response drafted by Kenyatta’s defense lawyers Steven Kay and Gillian Higgins asked Trial Chamber V(b) at the ICC to deny the prosecution’s request for adjournment of the trial and to terminate the proceedings against Kenyatta. The defense stated that allowing a postponement with no date for the trial to begin is a violation of the Kenyatta’s right to a trial without undue delay pursuant to Article 67 of the Rome Statute. The defense also said it would violate his fair trial rights if the case against him was not terminated on the basis of a “highly sufficient concession of insufficient Prosecution evidence.”

In addition to possible fair trial violations, the defense gave five other reasons why the adjournment request should be rejected. The defense argued that the OTP has already been given sufficient time to conduct investigations and that prior to confirmation of charges proceedings, the prosecution was very slow to collect and assess evidence. The defense also claimed that the OTP did not make enough effort to secure evidence from the Government of Kenya. Furthermore, the defense highlighted its voluntary disclosure of evidence and the “reasonableness” of the Kenyan government’s explanations on why it cannot fulfill its disclosure obligations.

On September 5, the OTP told the trial chamber that it was not in a position to proceed to trial because it does not have the evidence available to prove Kenyatta’s alleged criminal conduct beyond a reasonable doubt. The prosecution faulted the Government of Kenya for failing to comply fully with prosecution requests for documents and providing only a “fraction” of the information that has been sought. The documents requested by the prosecution include vehicle registrations, tax returns, and telephone records, among other items. The OTP also claimed Kenyatta, as head of the government, is ultimately responsible for the Kenyan government’s failure to comply with handing over the records requested, which was an assertion the defense rejected.

“The practical and legal difficulties for the Government of Kenya in executing the Prosecution requests are matters for which the Accused is not responsible,” the defense noted in their response.  They went on to blame the prosecution for not complying with Kenyan legal procedure.

The October 7 start date for the trial was set in March of this year when the judges of Trial Chamber V(b) granted additional time for the resolution of cooperation issues between the Government of Kenya and the OTP. After a status conference in July to discuss progress on the disclosure of documents, the judges ordered the Kenyan government to hand over the requested materials in the Kenyatta case to the prosecution. In their unanimous decision, the judges found it was wrong for the government to argue that practical and administrative obstacles prevented them from fulfilling the OTP’s request for documents. It is unclear when the judges will make a decision in response to the most recent prosecution and defense filings on the adjournment request.

In related events, hearings did not take place on Thursday in the ICC trial of Kenyan Deputy President William Samoei Ruto and former journalist Joshua arap Sang. Presiding Judge Chile Eboe-Osuji said technical problems prevented the connection of video link from The Hague to Nairobi. Currently, Witness 604 is testifying via video link from Nairobi. His testimony is expected to continue on Friday.

Ruto and Sang have been on trial since September 2013 for their alleged roles in the violence that followed the 2007 elections in Kenya.