Concerns on trial dates as President seeks delay

By WaHOME THUKU

 President Uhuru Kenyatta has requested to be excused from physically attending his trial at the International Criminal Court (ICC), citing demands of his responsibilities as Head of State.

It was only a matter of time before Uhuru made the application, bringing to sharp focus the dilemma of governing the country when he and his deputy William Ruto are physically in The Hague for the trials. Yesterday, concerns mounted after a trial schedule placed both Uhuru and Ruto in The Hague at the same time between November 12 and December 13.

The President and his Deputy are suspects but free men, and will have to fly in and out of the Netherlands.

This situation has presented challenges, with the ICC President on record saying the Kenyan cases were unique since none of the suspects was in custody.

Also in focus is the security and movement of Uhuru while in the Netherlands given his status.

The country’s image is also likely to be cast in different light during the trial, to be beamed live across the world. Yesterday at the status conference, President Uhuru made the request to be excused from trial in an application by his lawyer, Mr Stephen Kay.

Uhuru also requested the court to postpone the start of his trial to January, to enable his defence complete an intensive investigation on mobile phone data. But the prosecution, which accused Uhuru of attempting to delay the start of his trial, opposed both applications.

The prosecution said excusing Uhuru from sitting in court would set a bad precedence for other accused persons before the ICC.

In his submission, Kay said the application was based on Uhuru’s experience in the past six months as head of state.

Uhuru, said Kay, wished to concentrate on his official matters as president and leave his lawyers to deal with the case.

Ruto had earlier been allowed to attend only specific sessions of the proceedings but the Appeal Chamber suspended the decision following an application by the prosecution.

Uhuru had initially asked to be allowed to attend the trial proceedings via video link from Kenya. But his lawyer said that had changed and he now wants to be completely excused from the proceedings, only turning to the video link when and if he so wishes.

Evidence

Kay said Uhuru’s application was different from that made by Ruto since his was in his capacity as head of state.

Uhuru’s ability to govern from The Hague has been subject of debate since he declared his interest to contest the presidency.

On the issue of phone data evidence, Kay told the Trial Chamber that the defence had been gathering evidence on witnesses who claimed they were in specific places with specific persons at particular times.

“The case needs a fundamental rethink on whether it commences at all in the light of the evidence and where the stakes are. We submit that providing a trial date so close to production of the evidence is contrary to the interest of the parties,” he said.

Kay said it would not be in the interest of the trial for the President to go through a spectacle of appearing in court. He said the latest evidence gathered by the defence, including that of mobile phone data, would be presented to the prosecution and it was imperative for them to look at it. “There is deliberate attempt not to consider this evidence, which should be considered. They have not been paying attention to this evidence. They go fundamentally to the issue in this case and they need to consider them,” said Kay.

But the prosecution, led by Chief Prosecutor Fatou Bensouda, argued Uhuru could not be treated differently just because he was head of state.

“Granting such a request would violate the very bedrock of the legal principle to treat all persons equally,” said the prosecutor.

Bensouda described it as disrespectful to imply that since Uhuru was president, he could not submit himself to the court.

The prosecution said they have been ready to start the case since April 2013. “This will be the third time the trial is being postponed. It has been delayed twice, first by three months then another on application by the defence. The Chamber has ruled that it does not hold that the ongoing investigation into mobile phone data necessitates the adjournments.