“The problem here is that the prosecution [is] really are struggling to make it, but the question is why. Is it because there is a lack of evidence, a lack of witnesses, or is it because something is obstructing them from accessing that evidence, and something is preventing the witnesses from testifying?” Simon Allison, senior reporter for Africa at the Daily Maverick, told CNBC Africa.
“In Kenya at the moment, that is really the situation the court finds itself in. Because President Kenyatta is the head of state, it’s very difficult for government officials to hand over information which may implicate him.”
In 2011, Kenyatta, alongside his deputy William Ruto and journalist Joshua Sang, were accused by the International Criminal Court (ICC) for crimes against humanity during Kenya’s 2007 to 2008 election violence.
(READ MORE: Acquittal from ICC charges possible for KEnya's Ruto, Sang)
Allison added that the prosecution has complained multiple times that Kenyan authorities were not cooperating with the ICC. There have been additional reports of violence and bribes in an effort to block the court processes.
“It’s really hard for the prosecution to make its case in this atmosphere. If we follow the trial through, if we go to its conclusion, and because of the lack of evidence, President Kenyatta is acquitted. That means these charges can never ever be brought [against him] again. That will be it,” Allison explained.
One of the options he proposed would be to withdraw Kenyatta’s charges for the moment and instead wait until his term is over before reinstating them.
Witnesses are likely to be more freely able to testify, and records would be more easily accessible to investigators, giving room for a fair trial.
(READ MORE: African Union to set up new court)
“This is all very new, going after sitting heads of state. Prosecuting them is something that hasn’t been done before. The prosecutors are struggling. They’re sort of making the rules as they go,” said Allison.
“There are things that they could certainly have done better, but I think the structural difficulties they’re facing in terms of Kenyatta as the head of state, really controlling so many of the levers of power in this case, these are bigger obstacles. It means that the chances of a fair trial [are] minimal.”