THE lawyer for victims at the International Criminal Court has has accused Chief Prosecutor Fatou Bensouda of being soft on President Uhuru Kenyatta.
The victims have asked the ICC to compel Bensouda to say if she is planning to drop charges against Uhuru and what role the Kenyan government has played in her failure.
In December Bensouda applied to postpone the trial for a further three months from February 5 after another two key witnesses dropped out.
"It would be unacceptable for the Prosecution to seek to withdraw charges against the Accused, if that access has been in any way impeded due to the action or inaction of the GoK," the victims lawyer Fergal Gaynor,told the judges on Monday.
"Why are [the prosecution] now on the verge of raising the white flag of surrender when it's quite clear the government has blocked evidence? The government has been obstructive and the prosecution has failed because it has not held the government accountable," Gaynor said.
Gaynor said that the Trial Chamber and the victims are entitled to a detailed explanation of why the Prosecution is not in a position to proceed to trial after four years.
Gaynor attached an annex with 14 questions that Bensouda should address at a status conference scheduled for January 27 to discuss her application.
"Having received the Prosecution's answers, the Trial Chamber will be in a more informed position as to what remedies to adopt," Gaynor added.
The lawyer warned that dropping the case against Uhuru would damage the ICC's credibility as an institution that can deliver justice.
"Withdrawal of charges in this case risks sending out the message that the court is, in reality, powerless in the face of witness intimidation and bribery, and state obstruction of access to evidence," Gaynor said.
Uhuru is charged with involvement with attacks by Mungiki on perceived ODM supporters in Nakuru and Naivasha after teh Deecmber 27, 2007 election.
Bensouda has repeatedly accused the Kenyan government of frustrating her efforts to collect evidence and to get access to Uhuru's financial records.
Attorney General Githu Muigai has dismissed Bensouda's accusations and asked her to get a court order to access the financial records.
"We are ready to release but the material can only be released on a court order. Otherwise it is just an argument between lawyers about what they're entitled to. They have never gotten a court order about any document," Githu told the court last month.
Gaynor argued that this statement by Githu was an admission that Kenya was not co-operating with the ICC.
"This startling admission goes to the heart of the reason why the Prosecution does not have the evidence that it needs in this case: because the GoK has deliberately not facilitated access to that evidence," the lawyer said.
The victims' lawyer asked the court to exercise its powers and demand the attendance of witnesses and the production of documents.
Gaynor said that those responsible for interfering with witnesses or interfering with the collection of evidence must be held accountable.
"The Trial Chamber should request the submission of all evidence located in Kenya that it considers necessary for the determination of the truth and Issue requests to Kenya and engage in such consultations with Kenya as are necessary in order to compel it to provide the level of assistance which it is obliged to provide," Gaynor said.
The lawyer said that it was important to reveal the real reasons why the prosecution was facing difficulties in prosecuting the case.
"Many outside the Court will perceive that the withdrawal of charges in this case will have been influenced either by the Accused's high-level campaign to terminate the case against him; or by state obstruction to relevant evidence; or by witness intimidation and bribery; or by a combination of these factors," Gaynor said.
The lawyer said "'never before in international justice has an accused" deployed state resources to frustrate their own case and discredit the court the way Kenya and Uhuru have.
Gaynor cited Uhuru's address to the African Union in Addis Ababa on October 2013 where he described the ICC as "the toy of declining imperial powers" and "a fetid insult" to Africa.
"Withdrawal of charges in this case risks sending out the message that the Court is, in reality, powerless in the face of witness intimidation and bribery, and state obstruction of access to evidence," he said.