• Prosecution asks judges to either accept request for indefinite adjournment of Kenyatta trial, pending delivery of records requested from the Kenyan government, or to terminate case.
• Defense calls for termination on grounds of lack of evidence.
• Trial chamber judges offer no indication of when decision on next steps will be delivered.

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, has asked trial judges to decide whether to adjourn indefinitely the case against Kenyan President Uhuru Muigai Kenyatta or terminate it and not consider any halfway measure.

Steven Kay, who represents Kenyatta, asked the judges not only to terminate the case, but also enter a verdict in favor of his client. Bensouda and Kay made these submissions during Wednesday’s status conference that Trial Chamber V(b) called to seek clarifications on earlier written submissions the prosecution, defense, and lawyer representing the victims had made.

The status conference took place in two parts. During the first part, judges Kuniko Ozaki (presiding), Robert Fremr, and Geoffrey Henderson asked the different lawyers questions. In the second part, all lawyers each made a brief statement to the court. These statements were almost like closing statements lawyers make once all the evidence has been heard in a trial.

The prosecution’s statement was presented in two parts. In the first part, Bensouda gave an overview of the prosecution’s position on how the case should be handled going forward. In the second part, senior trial lawyer Benjamin Gumpert laid out in summary what the prosecution said was its evidence against Kenyatta.

“Either, Madam President, you refuse any further adjournment and therefore require the prosecution effectively to withdraw, or you permit an indefinite adjournment conditioned on the eventual compliance of the government of Kenya with its duties,” said Bensouda.

“Any other course will simply be ineffective,” she continued. “The scales of justice have to come down one side or the other.”

Bensouda said that the defense had on various occasions stated that there was no case against Kenyatta.

“There remains a considerable body of evidence that implicates Mr. Kenyatta. The prosecution has scrutinized very carefully this body of evidence, and we judge this body of evidence is insufficient to make you sure,” Bensouda said.

“But concerns that the chamber may have about the injustice of allowing the case to continue where there is simply no evidence can be put aside,” said Bensouda.

Gumpert then summarized some of the allegations that nine witnesses had made against Kenyatta. Some of the witnesses Gumpert referred to alleged that they attended meetings in which Kenyatta was present when violence was planned. Others claimed to have been paid money to participate in the violence. Those who received money were paid by members of parliament who claimed the money came from Kenyatta.

The witnesses Gumpert referred to are: Witness 152, Witness 428, Witness 505, Witness 548, Witness 510, Witness 493, Witness 494, Witness 429, and Witness 430.

“What you heard from the prosecution was a scandalous misrepresentation of the quality of their case as well as the reasons for not pursuing this case,” said Kay while making his statement.

“If the quality of the prosecution evidence was such as it claims to be, why didn’t they go to trial?” Kay continued. “They didn’t go to trial because there were fundamental problems throughout that case.”

Kay said that because there is no evidence, Kenyatta is “entitled to his verdict of not guilty.”

The lawyer representing victims, Fergal Gaynor, said in his statement that one of the troubling aspects of the case was the intimidation of witnesses.

“The victims, I suggest, are entitled to know who intimidated those witnesses. At whose instigation? And for what purpose?” said Gaynor.

He said that the victims had no other option if the case did not go to trial because the government had not provided all the records the prosecution had asked for.

“Is it really fair to force them now to pay the price for obstruction of justice by Mr. Kenyatta’s government?” Gaynor concluded.

Earlier during the first part of the status conference, Judge Ozaki asked Gumpert whether she was correct in understanding that the prosecution did not consider a fixed period adjournment an option. Gumpert said a limited duration adjournment was a possibility to be kept in mind.

“But in the end, your honors, the only realistic date is the date when the government of Kenya does what it is bound to do under the Rome Statute,” said Gumpert.

Judge Ozaki also asked Gumpert whether the prosecution had allegations against Kenyatta that as president he had taken any action to prevent the prosecution from obtaining the records they were seeking from the government of Kenya. Gumpert said the prosecution was not making any such allegation against Kenyatta.

In response to the same question, Kay said that to date there had been no allegation made against his client or him as a lawyer. He said, “The head of state issue that has been brought to bear as an allegation is not founded upon substance.”

Judge Henderson asked Gumpert whether an indefinite adjournment would help the court balance between the right of the accused in a trial and the rights of the victims. He also asked whether it would be more prudent for the case to be withdrawn, the prosecution continue their investigations, and if they get more evidence then come back to the court.

Gumpert said the court had the right to make such a decision, but he added that such a decision may not be in the interest of justice.

“The interests of justice should, I submit, be the most important consideration in your honors’ mind,” Gumpert said.

“And it would not be in the interests of justice … for the court to make a ruling which will effectively be interpreted as the court saying, if a country sticks out for long enough obstructing proper inquiries being made by the prosecutor, despite the court having made a finding that that obstruction is improper, then the case against that person that country wants to protect will go away,” said Gumpert.

After the status conference ended, the ICC’s spokesman said a ruling will be announced at a later date.