ICC Prosecutor Fatou Bensouda wants Deputy President William Ruto denied break

ICC Prosecutor Fatou Bensouda.

By Lillian Aluanga-Delvaux

Kenya: The International Criminal Court (ICC) prosecutor’s office has filed an urgent application requesting the court to reconsider its decision to excuse Deputy President William Ruto from attending trial.

Mr Ruto had on November 8 been granted excusal from attending his trail today, to fill in for President Uhuru Kenyatta who is attending the Africa-Arab Summit in Kuwait.

But in what appears to be a reaction to reports of Ruto’s plan to attend the Assembly of State Parties meeting in The Hague, ICC Prosecutor Fatou Bensouda now wants Trial Chamber V(A) to rescind its decision.

But Ruto’s lawyer responded, saying the DP was still in Kenya and was scheduled to travel to The Hague today after President Kenyatta returns to the country.

Ruto’s lead lawyer Karim Khan said the prosecution’s application should be dismissed as precipitous, unnecessary and fundamentally lacking in legal foundation.

Khan said Ruto was aware of his obligations to the court and dismissed the prosecution’s request as disingenuous and a fishing expedition about the intentions of a delegation to the Hague meeting.

“The President of the Republic of Kenya, HE Uhuru Kenyatta, remains, at the time of filing this response, in the Kingdom of Kuwait attending the AU-Arab summit – precisely as indicated to the Trial Chamber on November 8. Ruto remains in Kenya and will not travel to The Hague until November 21 when the President returns to Nairobi,” reads the response.

Khan confirmed Ruto that will be attending court tomorrow. “The defence deplores the fact that it has to needlessly repeat the information it previously provided to the court in this response.”

The Assembly of State Parties will take place over eight days, from November 20 to 28. This period includes a weekend. The defence never intimated to the prosecution any information regarding Ruto’s attendance at any part of the eight-day meeting.

The Assembly of State Parties is the management, oversight and legislative body of the ICC and is made up of representatives of states that have ratified and acceded to the Rome Statute. In its application to Trial Chamber V to “reconsider and vacate” its decision to excuse Ruto from trial, the prosecution notes that it had been informed that Ruto is set to lead the Kenyan delegation to the Assembly of State Parties’ 12th Session that started yesterday in The Hague.

President’s absence

In its submission, the prosecution notes that Ruto’s excusal request was premised on the fact that he would be constitutionally required to be present in Kenya until today due to the President’s absence, a position that would no longer hold if Ruto was at the State Parties session.

“Considering Ruto’s imminent attendance at the session in The Hague, the prosecution submits that the underlying rationale for the request for excusal is no longer valid: either Kenyatta will return to Kenya before yesterday, making Ruto available to appear at trial or alternatively Ruto’s presence in Kenya is not, in fact, indispensable, notwithstanding Kenyatta’s absence.”

The prosecution also points to a conflict of interest between Ruto’s public position as head of Kenya’s delegation to the meeting, and his personal position as an accused person.

Prosecution maintains it was likely that Ruto would address member states, take part in discussions with other delegates and give media interviews, thus the likelihood of contravening the Chamber’s previous directions that parties to the case refrain from commenting on its merits in the Press.

The prosecutor’s office appears to hinge its case on Ruto’s attendance to the notification by Kenya to the ASP that shows the Deputy President will be leading the delegation.