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Trial of Kenyan President May Be Collapsing Prosecutor Seeks Delay in Proceedings for a Kenyan
(about 5 hours later)
The prosecution of Kenya’s president for crimes against humanity, the highest-profile trial undertaken by the International Criminal Court, appeared near collapse on Thursday when the prosecutor abruptly announced that she lacked sufficient evidence to proceed and was seeking an indefinite delay. PARIS — The case against Kenya’s president, Uhuru Kenyatta, for crimes against humanity was dealt a severe blow on Thursday when the prosecutor said that the recent withdrawal of two crucial witnesses had left her without enough evidence to proceed.
The prosecutor, Fatou Bensouda, said in a statement from the court at The Hague that she could no longer rely on two key witnesses needed to try the president, Uhuru Kenyatta, because one witness said he was no longer willing to testify and the other had confessed to giving false evidence. The prosecutor, Fatou Bensouda, said in a statement that she needed time to gather new evidence since one key witness had recently said that he was no longer willing to testify and a second witness admitted “giving false evidence” about a critical event in the prosecution’s case.
“Having carefully considered my 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,” Ms. Bensouda said in the statement. Their withdrawal, following the loss of other crucial witnesses earlier this year, appeared a potentially fatal setback in the longstanding effort to try Mr. Kenyatta, the first sitting head of state to appear before the International Criminal Court in The Hague.
Her decision was a major and potentially fatal setback in the longstanding effort to try Mr. Kenyatta, who was accused, along with his deputy, William Ruto, of helping to orchestrate some of the violence in Kenya after the disputed 2007 elections that left more than 1,100 people dead. Mr. Ruto’s trial began on Sept. 10, but Mr. Kenyatta’s was not scheduled to start until Feb. 5. Mr. Kenyatta, along with his deputy, William Ruto, stand accused of orchestrating the postelection violence in Kenya six years ago that left more than 1,100 people dead. Both were charged with crimes against humanity. Mr. Ruto’s trial began Sept. 10; Mr. Kenyatta’s had been scheduled to start Feb. 5.
The prosecutions of the Kenyans — Mr. Kenyatta in particular — has taken on enormous significance and controversy. It was the first time the International Criminal Court seemed able to bring a sitting head of state to trial, but the case has been troubled by delays and problems, including the repeated loss of witnesses, some of whom the court said were subjected to severe intimidation if they testified against Kenya’s leaders. The prosecutions of the Kenyans — Mr. Kenyatta in particular — have taken on enormous significance and controversy as Mr. Kenyatta, determined to get the case dropped, has mobilized other African leaders to support him in a campaign against the court.
In a similar setback in March, the chief prosecutor withdrew all charges against one of Mr. Kenyatta’s co-defendants, Francis Kirimi Muthaura, a former government official who was accused of working with Mr. Kenyatta to organize death squads. In that case, the prosecutor said that one witness had recanted after accepting money to withdraw his testimony, several important witnesses had “either been killed or have died,” and others “were too afraid to testify.” At the same time, the Kenyan government has thwarted all efforts by the prosecution to gain access to witnesses in Kenya, including police officers, and prosecutors said that requests for official records, telephone intercepts and financial statements had been turned down.
“The safety of the witnesses is one of the greatest challenges we face in the Kenya cases,” Ms. Bensouda said in an interview in April. “There has been unprecedented intimidation. It’s a very difficult situation.” “There was not a shred of cooperation; they wouldn’t give you as much as a weather map,” said a lawyer familiar with the investigation.
Richard Dicker, the director of the international justice program at Human Rights Watch in New York, said the prosecutor’s decision to seek an indefinite delay was “deeply disturbing” and that he hoped Ms. Bensouda would find ways to salvage the case. More serious has been the attempt to hollow out the cases through what prosecutors and lawyers from Kenya have described as an unrelenting campaign to intimidate and at times bribe witnesses. Even witnesses who were moved abroad by the court’s witness protection program have been located and intimidated, according to an official with knowledge of the program.
“It’s got to be a devastating development for all of those who really put their security and well-being on the line, to contribute to this case and to justice being done,” he said. “And clearly lessons need to be learned about witness protection, where the stakes are as high as they are in the Kenya case.” “We have good reason to believe people hiding abroad have been paid to recant and have been bought off,” the official said.
While Mr. Dicker and other human rights advocates have always encouraged the prosecution to proceed, African leaders have viewed the case with increasing bitterness and criticism, contending that the court is preoccupied with pursuing cases in Africa exclusively. Kenyans who were recently at a conference in The Hague said that an atmosphere of fear, even panic, had been created through Kenya’s social media as people were named in blogs and Twitter posts as witnesses, whether true or not.
Recent new laws have placed additional restrictions on the local media to stifle criticism of the government.
In court in The Hague, lawyers for Mr. Kenyatta and Mr. Ruto have denied charges of intimidation and bribery. Instead, they said, it was the prosecution that had pressured witnesses to bolster cases that were too weak to warrant a trial.
The accusations against Mr. Kenyatta — crimes against humanity, including murder, rape and forcible transfer — were based in part on what the prosecution contended was the use of Mr. Kenyatta’s extensive family wealth to finance death squads in the midst of the violence that erupted after Kenya’s 2007 presidential election.The accusations against Mr. Kenyatta — crimes against humanity, including murder, rape and forcible transfer — were based in part on what the prosecution contended was the use of Mr. Kenyatta’s extensive family wealth to finance death squads in the midst of the violence that erupted after Kenya’s 2007 presidential election.
Mr. Kenyatta has always said he is innocent of such accusations, and his lawyers have frequently described the prosecution’s case as too weak to warrant a trial. They have rejected accusations that witnesses were intimidated and insisted that it was a spurious allegation promoted by the prosecution to mask a flawed case. Fergal Gaynor, the lawyer for victims of the Kenyan violence, who are a party to the trial, said that victims believed that their chances for obtaining justice at home were negligible. “The court’s investigations against Mr. Kenyatta must continue for as long as necessary for the truth about the horrific crimes to be revealed,” he said in an email.
Ms. Bensouda, the prosecutor, said her decision to ask for an adjournment was “not taken lightly.”
But a Western diplomat who asked not to be named said he believed it would be difficult to find new evidence and witnesses and build a strong case against the president, given the present climate in Kenya.

Marlise Simons reported from Paris, and Rick Gladstone from New York.