The ICC has accused Kenyan President Uhuru Kenyatta of allegedly committing crimes against humanity.
Prosecutors say Kenya’s government has hindered access to bank and telephone records which they consider essential to secure a conviction on charges that Kenyatta orchestrated violence that swept Kenya after elections in 2007.
The case is a test of the authority and credibility of the court, which has seen several cases collapse and secured just one conviction in 11 years.
It has also driven a wedge between the court’s Western backers and African allies of Kenya, many of which launched a diplomatic push to have Kenyatta’s trial scrapped or deferred following his election as president last year.
Kenyatta, who is head both of state and government, denies the charges.
Speaking at a meeting to decide whether Kenya is in breach of its obligation to cooperate with the court, Kenya’s attorney-general Githu Muigai said prosecutors’ requests for access to Kenyatta’s bank records had not been correctly filed. That left Kenya with no choice but to refuse.
“Prosecutors cannot parade in the garments of the court, invoking powers they do not have,” Muigai told the court.
Kenya could only breach Kenyatta’s privacy by opening up his bank records if prosecutors first obtained an order from judges compelling the government to do so, he said.
Last week, prosecutors told the court access to Kenyatta’s bank records were their last best hope of successfully prosecuting the politician in the face of “pure obstructionism” by the Kenyan government.
They said bank records would allow them to see if he had indirectly paid large sums of money to those who carried out the violence, in which 1,200 people died and thousands were driven from their homes.
In court filings, they have spoken of a “climate of fear” that has deterred witnesses from testifying against Kenyatta, the son of Kenya’s founding father. His trial has been postponed four times as prosecutors sought to shore up their case.
Speaking for the prosecution, lawyer Ben Gumpert said Kenya’s interpretation of the law appeared to have been made up on the spur of the moment.
“This request was made 22 months ago,” he said. “The Kenyan government kept saying: ‘Yes, yes, we’re getting round to it,’ until recently, because the argument advanced today hadn’t yet occurred to them.”
While lobbying hard in diplomatic forums against the charges, Kenyatta has obeyed all summons to attend the court and followed other instructions made by it.
The court has also charged his deputy and former rival William Ruto in a similar but separate case. Both men are vigorously contesting the charges they face, and have hired prominent London human rights lawyers to defend them.