After Ruto, ICC Prosecutor now targeting President Uhuru Kenyatta who was excused from continuous attendance last week

Deputy President William Ruto (right) and Kiambu Governor William Kabogo outside the ICC on Friday.
[PHOTO: PIUS CHERUIYOT/ STANDARD]

By FELIX OLICK at The Hague

The United Nations Security Council is now the last hope for the country’s chief executives after the International Criminal Court thwarted their relentless bid to skip trials.

The verdict by the ICC Appeals Chamber that Deputy President William Ruto will have to be physically present at The Hague throughout his trial came as a shocker to the ruling Jubilee coalition.

It also rubbed the African Union the wrong way since five countries — Tanzania, Uganda, Rwanda, Eritrea and Burundi — had submitted amicus briefs insisting that Ruto be tried in absentia.

After Ruto, ICC Prosecutor Fatou Bensouda is now targeting President Uhuru Kenyatta who was only excused from continuous attendance just last week. “The Office of the Prosecutor will request Trial Chamber V(b) to reconsider its decision to conditionally excuse Mr Kenyatta from continuous presence at his trial or in the alternative, to grant the OTP leave to appeal that decision,” Bensouda’s office indicated.

Ruling political

However, despite the furore the judgement has generated, legal experts insist that the ICC was obliged to stick to the correct interpretation of the law and that the country’s leadership can seek political considerations at the UN Security Council.

“The legal ruling, while in my view correct and well-reasoned, will undoubtedly have some political fallout,” said Ms Clair Duffy of the International Bar Association.

“It is important that lawyers and judges continue to apply the law even-handedly and that politicians and diplomats continue to concern themselves with the resolution of political and cooperation issues around the ICC,” she told The Standard on Sunday.

On Friday, a five-judge bench of the Appeals Chamber headed by the ICC President Sang-Hyun Song overturned an earlier ruling by the Trial Chamber excusing Ruto from being physically present in court to attend to his constitutional duties as deputy Head of State. The judges concluded that the Trial Chamber interpreted the statute too broadly and provided Ruto with what they termed “a blanket excusal”.

Shortly after the ruling, Jubilee allied lawmakers castigated the verdict as political, saying the decision was simply ICC’s s way of trying to show who is the “boss”.

Indicate fairness

But Nick Kaufman, defence lawyer for indicted journalist Walter Barasa points out that the determination of the court had everything to do with the correct interpretation of the Rome Statute.

“The issues at stake had nothing to do with fairness but with the correct interpretation of the provision of the Rome Statute pertaining to the attendance of an accused at his own trial,” pointed out Kaufman

“I think the decision is very well-reasoned, reasonable and founded in legal principle. This definitely indicates fairness,” added Ms Duffy.

For the first time, the ICC senior Chamber pronounced itself on the controversial Article 63 of the Rome Statute that trials can be conducted under “exceptional circumstances” in the absence of the accused.

Following the ruling, Ruto was excused from being present in court from Monday till Wednesday to allow President Kenyatta to attend a regional summit in Rwanda even as his trial proceeds at The Hague.

“I think this strikes an appropriate balance between making certain allowances for those in public office, for example, in the circumstance of the Nairobi terrorist attack and the requirement under the Rome Statute that an accused person “shall be present” during their trial,” pointed out the International Bar official.

However, Kaufman points out that that the Appeals Chamber created a lacuna by failing to define “exceptional circumstances” under which an accused can be excused from trial.

“When too much is left to the discretion of judges as opposed to obliging them to make a strict legal or factual decision, claims will invariably be made that the judges are susceptible to being influenced by irrelevant political considerations. That is, perhaps, the unintended consequence of the judgment made on Fridays.”

International lawyers are, however, divided on the impact of the decision on the spirited African Union-backed push to delay the twin Kenyan cases for a year.

Fergal Gaynor, the victims’ legal representative in the Uhuru case predicted that the ‘flexible’ approach taken by the Appeals Chamber would make Kenya’s deferral bid difficult

“It must also be recognised that the Appeals Chamber has left the door open to applications by Mr Kenyatta to be absent from trial in “exceptional circumstances”, which it has left undefined. It has also emphasised that absences can be accommodated by changes to the trial schedule or short adjournments of the trial,” Gaynor pointed out.

“This pragmatic and flexible approach of the Appeals Chamber means that it will be very difficult for Mr Kenyatta to convincingly argue before the Security Council that it should vote in favour of an Article 16 resolution to suspend his trial for a year.”

Horn of Africa

But Kaufman insists that the Appeals Chambers decision has no impact on the UN Security Council resolutions.

“Legally speaking it has no bearing .The considerations are different entirely. The decision to defer or not to defer is purely political,” says the ICC Defence Counsel.

According to Kenyan lawyer Kamotho Waiganjo, the decision would give Kenya and the African union renewed vigour in their push for the deferral of the cases.

In his letter to the UN Security Council dated Monday this week, Kenyan Ambassador to the UN Macharia Kamau cited terrorist threat in Kenya and the Horn of Africa in his request.

“The threat to the peace, breach of the peace or acts of aggression likely to transpire in light of the prevailing and continuing terrorist threat existing in the Horn and Eastern Africa,” the copy of letter, which The Standard on Sunday has obtained, reads in part.

“Kenya, therefore, seeks action of the United Nations Security Council to prevent the aggravation of the threat, breach of peace or act of aggression that terrorism menace poses to national, regional, continental and international peace and security...” it reads.