THE HAGUE- The International Criminal Court is to decide whether to suspend its trial of Kenyan President Uhuru Kenyatta because of a lack of cooperation by Kenyan authorities.
Judges said they would hold a hearing in the coming weeks on a possible reprimand for Kenya after prosecutors told the court on Wednesday that "pure obstructionism" was wrecking any chance of pursuing Kenyatta on charges that he orchestrated post-election violence six years ago.
The case is a test of the authority and credibility of the Western-backed court, which has seen several cases collapse, secured just one conviction in 11 years, and prompted bitter complaints from Africa that it is being singled out as a soft target.
The case against Kenyatta has been undermined by the withdrawal of a string of witnesses who prosecutors say have been intimidated or blackmailed, as well as other failures to secure documentary evidence.
In a Jan. 31 court filing, prosecutors said a "climate of fear" had weakened their case and that judges should rule that Kenya was in breach of its obligation to help investigators.
They told the court they needed access to Kenyatta's financial records, among other things, to see whether he had indirectly paid large sums of money to the perpetrators of the violence, in which 1,200 people died and thousands were driven from their homes.
Kenyatta, who is head of both state and government, denies the charge of crimes against humanity. His lawyers say the prosecution is now merely trying to blame Kenya for its own failure to build a case.
Prosecution lawyer Ben Gumpert said it was nearly two years since the records had been requested, and the prospect of building a strong case was shrinking.
"The stones that remain to be turned are getting less and less promising ... more like pebbles," he said. "We characterise the position of the government of Kenya as one of pure obstructionism."
Prosecutors also say authorities have obstructed their attempts to interview police officers.
A lawyer for Kenyatta said that, since the records had been requested by prosecutors rather than the court, Kenya had been right to withhold them.
While Western powers led the push to establish the court and are keen to support it, they are also anxious to maintain relations with Kenya, seen as a key ally in the battle against militant Islamism in neighbouring Somalia.
The case grew more controversial throughout Africa after Kenyatta, the son of his country's founder, won last year's presidential election on a joint ticket with William Ruto, his deputy, who is on trial on similar but separate charges.
Kenya says the court risks destabilising east Africa if it presses on with the charges.
If the judges rule that Kenya is not meeting its obligations, they could adjourn the trial, effectively putting the case on ice, until Nairobi turns over further material.
The trial has already been postponed four times, most recently last month, when another prosecution witness withdrew.
This only increased prosecutors' reliance on the Kenyan authorities for information.
They cite as an example a request to see telephone records from the last days of 2007, when they contend the clashes were planned. These were not provided, however, until Kenyatta's defence expressed an interest in them.
Defence lawyer Stephen Kay, who wants the case dismissed, called the prosecution request "an attempt to stop the case without admitting who has failed here".
"It is a blame-shifting exercise onto the government of Kenya," he said.
Kenyatta used his position as leader of East Africa's economic powerhouse to rally African Union allies in a diplomatic push to have the U.N. Security Council defer the case against him.
Although that was unsuccessful, the ICC's 122 member states did agree to change court rules to make it easier for heads of state facing charges to give evidence by video link.