Former chief prosecutor for the ICC, Luis Moreno Ocampo has conceded that the trial against Uhuru Kenyatta "was not working well".
Ocampo who handled the case in its initial stages upto to trial, however welcomed Kenyatta's scheduled appearance as "showing African commitment to change", according to a BBC report.
The former prosecutor's damning statement comes hours before Kenyatta faces the judges to discuss accusation by prosecution that Kenya was not cooperating with the court.
Former Special Court for Sierra Leone prosecutor David Crane added his voice to the debate, "If you're going to indict a head of state you can't make mistakes".
The status conference starts at 10:30am Kenyan time. Kenyatta who is in the Hague in his personal capacity will be treated like any other suspect within the court premises.
Prosecutors accused the Kenyan government on Tuesday of failing to hand over phone and bank records they said would help them show Kenyatta paid collaborators to take part in post-election violence in 2007.
Attorney General Githu Muigai said Kenya had cooperated to the extent permitted by domestic law and provided all information available.
Muigai said there were limits to what Kenyan authorities could do to obtain Kenyatta's records.
"Where it has been possible within the law to carry out an independent interrogation of the requested subject, we have done so," he said. He had transmitted three months of Kenyatta's banking records, he said.
The case was to start in September but the prosecution asked the court to postpone the case indefinitely. The prosecution says the evidence available is yet to meet the "beyond reasonable doubt".
Most of prosecution witnesses against Kenyatta have withdrawn from the case.
Kenyatta has denied the charges levelled against him.
Kenyatta is allegedly criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of: murder (article 7(l)(a)); deportation or forcible transfer (article 7(l)(d)); rape (article 7(l)(g)); persecution (articles 7(l)(h)); and other inhumane acts (article 7(l)(k)).
The case is at 'critical juncture' because the Chamber will decide on two things: indefinite adjournment of the trial( prosecution request) and or terminate( defence demand).
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