ICC: Is witness intimidation derailing President Kenyatta's trial?

Prosecutor for the International Criminal Court is already seeking a temporary adjournment in crimes against humanity trial. 

A version of this post originally appeared on the Africa in Transition blog. The views expressed are the author's own. 

 On Dec. 19, International Criminal Court prosecutor Fatou Bensouda asked the judges to adjourn the trial date of Kenyan president Uhuru Kenyatta because one of the prosecution’s witnesses is now declining to testify and another has confessed to giving false evidence. She is asking for the adjournment to give her more time to seek other evidence before proceeding with the trial.

She said: “Having carefully considered by evidence and the impact of the two withdrawals, I have come to the conclusion that currently the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial. I therefore need time to complete efforts to obtain additional evidence, and to consider whether such evidence will enable my office to fully meet the evidentiary threshold required at trial.”

Kenya’s President Kenyatta and Vice President William Ruto have been indicted in connection with the bloodshed surrounding the 2007 presidential elections.

At that time, Kenyatta and Ruto were on opposite sides. Kenyatta was a leader of the Kikuyu ethnic group, while Ruto was a leader of the Kalenjin ethnic group. The two ethnic groups have long been bitter enemies. The origin of the enmity appears to be dispute over land in the Rift valley.

However, political figures on both sides have previously fanned the enmity in pursuit of their own agendas. It looks like that might have happened in 2007. At least 1,200 people were killed, and the international community, led by then UN Secretary General Kofi Annan intervened.

In 2013, however, Kenyatta and Ruto reconciled their personal differences and led a united national ticket for the presidency against Raila Odinga.

The Kikuyu and Kalenjin groups found themselves on the same side. They won in elections that most Kenyans decided were credible. Yet that victory means that Kenya’s president and vice president are both under ICC indictment.

Since the elections -- and even before -- ICC officials, including the prosecutor, Ms. Bensouda, have complained of witness intimidation and general Kenyan non-cooperation. Kenya has sought Africa Union support against the ICC, and the Kenyan parliament has called for withdrawal from its jurisdiction.

Under these circumstances, as the years go by, it is likely that it will be increasingly difficult for Bensouda to make her case against Kenyatta.

However, Ruto’s case, generally regarded as the stronger of the two, started in September 2013, and is going forward.

Should the ICC case against the Kikuyu Kenyatta go away, and should the Kalenjin Ruto be convicted, it is unclear whether that would re-ignite the ethnic conflict between the Kikuyu and the Kalenjin, up to now held in abeyance by the Kenyatta-Ruto alliance.