International Criminal Court prosecutors on Tuesday asked judges to rule that Kenya is not cooperating with their crimes against humanity case against Uhuru Kenyatta, as the Kenyan president flew to The Hague.
"The Kenyan government is not going to give us what we are asking for and what the chamber has approved of (us) asking for," senior prosecutor Ben Gumpert told a three-judge bench.
"The only conclusion to be drawn... is that if the court is satisfied that our arguments are right it should make a finding of non-compliance on the part of the government of Kenya," Gumpert said.
ICC judges are holding two days of hearings to discuss the status of the powerful African leader`s floundering case, which has been repeatedly postponed amid allegations of witness intimidation and that Kenya was not cooperating.
If the judges rule that Kenya is not complying, the matter would be referred to the Assembly of States Parties, the body representing countries that have signed the ICC`s founding Rome Statute.
Observers say that the ASP could only take note of or condemn the finding and that such a move would result in nothing more than "a slap on the wrist" for Kenya.
Kenyatta is flying to The Hague where he is due to appear on Wednesday at what judges have called a "critical juncture" in his case.
Speaking on behalf of Kenya, attorney-general Githu Muigai said on Tuesday that his country like any other "had a huge bureaucracy" and that he had written to a vast number of Kenyan government agencies to ask them to provide information.
"If we desire to delay or obstruct there would have been no reason for me to commence these consultations," he said.
Kenyatta, 52, faces five counts at the ICC over his alleged role in masterminding post-election violence in 2007 and 2008 that left 1,200 people dead and 600,000 displaced.
The Kenyan leader has appeared at the ICC before, but not since he was elected president in March 2013.
Judges called the status hearings after Kenyatta`s trial, slated to start on Tuesday, was put off after prosecutors admitted they did not have enough evidence to proceed.
ICC chief prosecutor Fatou Bensouda last month asked for an indefinite postponement, saying Nairobi had refused to cooperate with a request for financial, tax and telephone records.
The prosecution hopes the documents will shed light on his possible involvement in the violence that brought parts of Kenya to the brink of civil war in early 2008.
What began as political riots quickly turned into ethnic killings of Kenyatta`s Kikuyu tribe, who in return launched reprisal attacks, plunging Kenya into its worst wave of unrest since independence in 1963.