THE ICC prosecution yesterday admitted that its case against President Uhuru Kenyatta is likely to collapse.
Prosecution lawyer Benjamin Gumpert said that they need access to President Kenyatta’s bank records claiming that “might demonstrate innocence or suggest it.”
"We do not have sufficient evidence to show beyond reasonable doubt the guilt of Mr Kenyatta at this time. Investigative steps have not borne fruit and so prosecution says Kenya government has obstructed investigation," Gumpert said.
Gumpert said one allegation against Uhuru is that he gave a lot of money to perpetrators of post election violence.
Gumpert however admitted that even the bank records might not enable the prosecution to proceed to trial.
"So even if the Government of Kenya were to comply the Prosecution is not sure that the evidence presented will suffice," Presiding Judge Kuniko Ozaki asked.
"You are very correct, your honour. We do not know what is contained in there. We have been prevented from seeing Mr Kenyatta's financial records," Gumpert said.
The Prosecution claims that Uhuru spent up to Sh4 billion to arm attackers and transport them to where the attacks were carried out.
"Of all the leads available to us, we have exhausted all reasonable prospects," Gumpert said.
Gumpert told the court that they have been asking for the records for the past two years. He said that the case should not be withdrawn until the Kenyan government is compelled to release the records.
The Trial Chamber now has to decide on the submissions made by the parties yesterday.
The Rome Statute allow the prosecution to withdraw charges with the permission of the court.
Uhuru’s lawyer, Stephen Kay, said that there was no way that "20 million pounds" could leave Uhuru's account without raising suspicion.
Kay said that the Kenyan government has repeatedly asked since 2012 that the ICC Prosecutor makes any requests through the court.
"It has been made to seem like the responsibility for the failure of the case lies at the feet of the Government of Kenya. It became a series of letter battles with the Government of Kenya," Kay said.
"Kenya has cooperated with the OTP in the past so there is a contradiction here," Gumpert later retorted.
"A narrative was created. A narrative that the victims have come to believe. That narrative however was based upon false evidence. No court can permit in such circumstances a miscarriage of justice that false evidence be used for continuation of the court," Kay said.
"Our submission is that the nature of filing on Friday is a convenient attempt by the Prosecution to try and stop the case through a blame shifting exercise. That is not right and it is not fair," Kay said.
Kay said that the ICC Chief Prosecutor made the case political by charging two sides but the case against Uhuru had now failed.
Victims' lawyer Fergal Gaynor told the court that terminating the case would result in "total extermination of victims rights."
He said that the ICC had raised hopes of justice but Uhuru has used various platforms including the African Union and Mashujaa Day to demonise the ICC.
"When the President of Kenya gives high profile speeches in which he describes the ICC process as a racist process, or as an evil spirit, Kenyan witnesses who have agreed to testify for the prosecution either living in Kenya or with family members in Kenya are likely to hear what he has said," Gaynor told the court.
Gaynor accused Uhuru of abusing his position to build unprecedented levels of witness intimidation and interference.
"Kenyatta used state funds to sent high level delegations to the AU, ASP, UN to propose amendments to Rule 68. He has financed campaigns to attack the ICC while ignoring and not financing support for victims of post election violence," Gaynor said.