The Hague: A defence attorney for President Uhuru Kenyatta called on judges at the International Criminal Court to throw out allegations of crimes against humanity, saying prosecutors had "failed" to prove their case after five years of investigations.
Prosecutors countered that Kenyatta's government obstructed the hunt for the evidence and requested an indefinite postponement of the trial. They said sanctions should be considered to force Nairobi to comply with its obligations to cooperate.
"The case has failed and it has failed in a way that means there is no prospect of it going further," defence lawyer Stephen Kay said, calling on the judges to find his client not guilty. If the prosecutor doesn't offer more evidence, "you act to terminate."
Kenyatta was summoned to the Hague-based tribunal to answer questions about his indictment on charges of orchestrating a wave of deadly post-election violence that swept Kenya in 2007.
He is the first sitting head of state to answer a summons to the court, established 11 years ago to prosecute individuals for serious crimes when domestic courts are unwilling or unable to do so.
Kenyatta denies charges that he acted as an "indirect co-perpetrator" in crimes, including murder, deportation or forcible transfer, rape, persecution and other inhumane acts.
The legal impasse is unprecedented in international law. Previous high officials from conflicts in the former Yugoslavia and Rwanda were under arrest when they appeared in court, and were no longer in power at the time of their appearance.
Like his deputy and former rival William Ruto, who faces similar but separate charges, Kenyatta is attending voluntarily.
Prosecutors have accused Kenyan authorities of refusing to hand over bank and phone records, obstructing the case which has faced a series of delays since it was launched five years ago.
"If the Kenyan government was genuinely using its best efforts to comply, it would find and disclose those records and it would ensure that the telephone companies conduct appropriate searches," prosecutor Benjamin Gumpert said.
Allowing the charges to be dropped in the face of such obstruction would set a dangerous precedent, encouraging politically powerful suspects to defy the court, he said.
"It would be wholly inappropriate for the case to be withdrawn where there has been obstruction of the proper inquiries," Gumpert told the tribunal.
Gumpert said there was no evidence that Kenyatta himself had intentionally interfered in the investigation, but said Kenya was not handing over the evidence it needed.
PRAYING FOR KENYATTA
Kenyatta temporarily appointed his deputy, Ruto, as acting president in his absence to avoid putting the "sovereignty of more than 40 million Kenyans on trial" and said he would attend court hearings in a personal capacity.
Kenyatta, from Kenya's biggest Kikuyu ethnic group, and Ruto, a Kalenjin, were in rival camps in the 2007 election race. They were accused of inciting gangs who butchered people from opposing groups, using machetes and bows and arrows
In the Rift Valley town of Naivasha, just north of Nairobi, where the worst revenge attacks by suspected members of a Kikuyu militia took place, more than one hundred people at a displacement camp got on their knees and prayed for Kenyatta before the court proceeding started.
"The prosecution has openly said that they do not have evidence against the president and this is a clear indication that the investigations were flawed," said Christine Ndida, a mother of three who fled Kericho at the height of the fighting.
"We have said in the past that Uhuru was not among those who planned the attacks and this will be exposed very soon when this bad cloud passes away," she said.
Supporters wept as they prayed, before turning to watch the proceedings on television.
The mood was sullen in another part of Naivasha, where a majority of the victims of the electoral violence live, but faith in proceedings has waned due to the weak prosecution case.
"Our only hope of getting justice lay in the ICC, but we are disappointed by the manner the case against Uhuru has proceeded with the prosecution failing to offer enough evidence," said 28-year-old flower worker David Omulo, who lost a brother.
For some, however, Wednesday's court proceedings marked an important precedent for accountability.
"All along we questioned if Uhuru would really go to The Hague, but it is a warning to those planning chaos that no one is above the law," said Alice Achieng, a 28-year-old trader and mother of one, who lost all her belongings in Naivasha.
"MOST POWERFUL INDIVIDUAL"
Judges were considering a request from prosecutors to adjourn the trial and refer Kenya's alleged non-cooperation to the court's member states, who could then decide on sanctions.
Kenyatta had it in his power to ensure his country cooperated with the court, said Fergal Gaynor, a lawyer representing the interests of victims of the violence.
"The accused is without question the most powerful and influential individual in Kenya," he said. Kenyatta "is the one person who can remove the obstruction to this case."
Dozens of Kenyatta's supporters were waiting outside the court and broke into song as his convoy arrived. Kenyatta and allies have warned that the trial risks destabilising a region that faces a threat from resurgent militant Islam in Somalia.
"This is no time to weaken a country and a region by removing its president for trial," said Mahboub Maalim, head of the Intergovernmental Authority on Development regional organisation, who was in The Hague for the hearing.
The case is seen as a major test of the ICC which has secured only two convictions since it was set up.
