Bensouda appeals ICC judges’ ruling on Ruto

By Ally Jamah

Nairobi, Kenya:  Chief Prosecutor Fatou Bensouda has opposed the decision by the Hague based court judges to excuse Deputy President William Ruto from continuously being present during his trial.

In her request to the judges seeking permission to appeal the decision, Bensouda said the absence of Ruto could significantly affect the fairness of the proceedings.

“There may be situations where the Prosecution wants to identity the accused through a witness. This could be affected by the absence of the accused. The fair and efficient conduct of the proceedings requires the physical presence of Mr Ruto,” she said.

She claimed it is not fair to leave out Ruto while other accused received no such treatment. She said the court is treating different accused persons differently.

“Mr Ruto should not be given different legal status on the basis of his personal position as Deputy President of Kenya,” She wondered why Ruto was excused from appearing continuously before the court while his co-accused, Joshua Arap Sang received no such exception

President Uhuru Kenyatta also filed a request to follow his ICC the trial via video link. The Trial Chamber in that case (which includes the two Judges who gave Ruto permission to absent, has not yet ruled on this request.

Bensouda warned that there was a risk the entire trial proceedings are nullified and must be repeated if the Appeals Chamber finds the presence of the accused during the bulk of the trial was a mandatory legal requirement under the Rome Statute.

Bensouda insisted that Article 63(1) of the Rome Statute whereby “the accused shall be present during the trial”.

She wondered whether the Trial Chamber trying Ruto has the discretionary powers to excuse an accused from attending most of the trial and to what extent those powers are regarding that issue.

The judges said: “in exceptional circumstances, they may exercise their discretion to excuse an accused, on a case-by-case basis,”.  They further said the Rome Statute does not limit their discretion to excuse an accused from continously appearing before the court during the trial. The discretion of the court to conduct trials in the absence of absconding accused is also a firmly established feature of common law systems.

On June 18, , the Majority of Trial Chamber V(a) (“Chamber”) issued a ruling excusing Mr Ruto from continued appearance during the duration of his trial to allow him to attend to his duties as Deputy President of Kenya.