Observers surprised that Fatou Bensouda has not done more to urge Nairobi to be more cooperative.
Justice experts have accused International Criminal Court (ICC) prosecutors of failing to do enough to pursue allegations that the Kenyan authorities have obstructed the investigation into President Uhuru Kenyatta.
Kenyatta is accused of crimes against humanity, including murder, rape, persecution and the forced displacement of civilians in violence that erupted after a disputed presidential election in December 2007. Deputy President William Ruto is already on trial at the ICC in a separate case, in which he is charged together with former broadcaster Joshua Arap Sang.
More than 1,100 people died and 600,000 others were forced from their homes during two months of bloodshed.
In December, ICC Prosecutor Fatou Bensouda was forced to apply for a postponement of the Kenyatta trial so that she could to conduct further investigations. She had been forced to drop two vital witnesses from the case, leaving her with insufficient evidence to go to trial. (See ICC Case against Kenyan President Unravels http://iwpr.net/report-news/icc-case-against-kenyan-president-unravels.)
Fergal Gaynor, a lawyer who represents hundreds of victims of the 2007-08 violence, complained to judges earlier this month that ICC prosecutors had failed to move against what they themselves had characterised as outright obstruction by the Kenyan government.
"[The prosecution] has periodically made statements suggesting deliberate obstruction of access to evidence by the [government], but appears not to have taken all steps available to it in relation to that obstruction," Gaynor wrote to judges on January 13.
The Kenyan government has repeatedly denied allegations that it has not cooperated with the prosecution.
Gaynor also asked why, in the Kenyatta case, the prosecutor had not asked judges to summon witnesses who had withdrawn their evidence to give testimony.
In October last year, the ICC issued its first arrest warrant for offences that could amount to contempt of court. Prosecutors accused a former Kenyan journalist of bribing and attempting to bribe witnesses in the case against Ruto and Sang.
From the details of the case that are in the public domain, Bensouda has not, however, initiated any such proceedings in the Kenyatta case.
Given the extent of the allegations of interference, commentators have expressed surprise about why, after Bensouda had alleged witness tampering and government obstruction, she did not approach judges sooner to remedy the problems.
Dov Jacobs, an expert in international criminal law at Leiden university in The Netherlands, told IWPR that this was "quite puzzling".
"From the outside, there has been no visible attempt from the prosecutor to get cooperation," Jacobs said.
Under the ICC's founding treaty, the Rome Statute, the prosecutor can ask judges to make a finding of non-cooperation against a government and to refer the matter to the court's 122 member states.
But Bensouda waited until December 2013 to bring an application of non-cooperation against the Kenyan government, even though she says the country's authorities have obstructed the investigation since it began.
"Since the beginning of the OTP's [Office of the Prosecutor's] investigations in April 2010, the government of Kenya has constructed an outward appearance of cooperation, while failing to execute fully the OTP's most important requests," Bensouda told judges in May last year.
Bensouda also complained of a lack of cooperation from the Kenyan government in March last year when she was forced to withdraw charges against Kenyatta's co-defendant, former civil service chief Francis Muthaura.
Gaynor pointed out that at that time, Bensouda said her investigation had been subjected to "unprecedented levels of tampering and anti-witness activity".
"It therefore appears that the prosecution has not taken all measures open to it to secure access to all relevant evidence, and to present that evidence at trial," Gaynor told the judges.
Although the ICC has issued charges against other heads of state, Kenyatta is the first to actually face trial while in office. Rights groups say that since he became president in April 2013, he has consistently used the machinery of state to obstruct the ICC's efforts to investigate him.
Elizabeth Evenson, a senior counsel in Human Rights Watch's international justice programme, questioned whether the prosecution had equipped itself adequately to investigate an individual of Kenyatta's standing.
"The OTP should have been well-prepared with challenges that couldtranspire in handling a case involving the trial of a sitting president," Evenson said.
Kenyatta's trial was due to start on February 5 this year, but it has been postponed indefinitely while judges hear arguments from all parties on whether the prosecution should be given more time to investigate the case.
With the case appearing to be on the brink of collapse, people who suffered directly during the bloodshed are losing faith in the ICC's efforts to hold top-level perpetrators accountable.
"We have lost hope in the prosecutor ever fighting for victims' justice," one victim in the town of Kisumu in western Kenya told IWPR. "The mission seems futile. ICC should not at all be manipulated by Kenyan government."
Gaynor has asked ICC judges to fully investigate the prosecutor's allegations of obstruction.
He asked them to put a number of questions to Bensouda so as to ascertain whether in her view, the Kenyan authorities have done everything possible to help her access evidence, and what obstacles she has faced in her investigation.
Gaynor said the court needed to find out which documents held by government institutions had been provided to Bensouda and whether or not she believed they had been censored or tampered with.
"It is critically important that the court understands the extent, if any, to which the [Kenyan government's] action or inaction has affected the prosecution's preparation for trial, further impacting on victims' hopes for justice," Gaynor wrote.
But even if judges do find that the Kenyan authorities have obstructed the prosecutor's investigation and refer the matter to the court's 122 member states, some experts say there is little that can be done about it.
Jacobs noted that in a case where an ICC investigation was initiated by a referral from the United Nations Security Council, that body could then be asked to take action such as imposing sanctions on the offending state. But in the case of Kenya, it was the OTP under former prosecutor Luis Moreno Ocampo which initiated the investigation.
"Ultimately, there is very little power to compel a state to cooperate," Jacobs said. "If there is no cooperation, then it has to go to the [Assembly of States Parties] and there are no sanctions for states."
This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Nation Media.