UN now the last hope for Kenyan leaders as judges reject plea to skip trial

The ICC Appeals Chamber on Friday
dealt a huge blow to Deputy President
William Ruto, reversing a ruling by
trial judges that had conditionally
allowed him to be absent from some
sessions of his case.
The chamber criticised the trial
judges, saying they had interpreted
the scope of their powers “too
broadly” by giving Mr Ruto “a blanket
excusal” before the trial had even
started.
“The Appeals Chamber concludes that
the Trial Chamber in the present case
interpreted the scope of its discretion
too broadly and thereby exceeded the
limits of its discretionary power,”
judges Sang-Hyun Song (presiding),
Sanji Mmasenono Monageng, Akua
Kuenyehia, Erkki Kourula and Anita
Ušacka said in a 27-page ruling that
left the UN Security Council as Mr
Ruto’s only realistic hope to have his
trial deferred. (READ: ICC reverses
decision allowing Ruto to skip
hearings)
CASE-BY-CASE BASIS
“The Trial Chamber provided Mr Ruto
with what amounts to a blanket
excusal before the trial had even
commenced, effectively making his
absence the general rule and his
presence an exception.
“Furthermore, the Trial Chamber
excused Mr Ruto without first
exploring whether there were any
alternative options. Finally, the Trial
Chamber did not exercise its
discretion to excuse Mr Ruto on a
case-by-case basis, at specific
instances of the proceedings, and for
a duration limited to that which was
strictly necessary,” the ruling stated.
Judges Kourula and Ušacka appended
separate opinions to the judgement.
The Appeals Chamber had allowed
Tanzania, Uganda, Rwanda, Eritrea
and Burundi to submit joint
observations but rejected requests for
observations by Nigeria and Ethiopia.
The summary of the ruling, which was
read orally in an open court by Judge
Song — only the second such instance
in the Kenyan situation after the
confirmation of charges decision in
January 2012 — also rejected Mr
Ruto’s request for an oral hearing.
The Deputy President had preferred
to have his trial continue in his
absence as opposed to the African
Union’s request to the Security
Council for a deferral had the Appeals
Chamber upheld the trial judges’
conditional excusal from the court.
“It would not be necessary for us to
pursue the issues of deferral if we can
get the issues of excusal sorted out.
Indeed that is our preference because
we are people who believe in the rule
of law and we want to go ahead with
accountability. We do not want to
short-change the system,” Mr Ruto
had said at a press conference in The
Hague on October 15.
“Our preference is that we want these
cases to proceed to their logical
conclusion because we are confident
that finally we shall be discharged of
these allegations and we would be
proven to be innocent because indeed
we are innocent.
“It is our concern that we do not want
to prolong matters in court. We are
clear in our minds that this is a
matter that should be concluded in
the shortest time possible. The sooner
this is put behind us the better,” Mr
Ruto had said.
On Friday, Mr Ruto expressed
optimism that he would be discharged
of the crimes against humanity he is
charged with alongside former radio
journalist Joshua Sang.
“Circumstances notwithstanding, we
will triumph because the truth, the
law and most of all God is on our side.
Be blessed,” he posted on his official
twitter handle.
On October 21, Kenya’s permanent
representative to the UN Macharia
Kamau had approached the Security
Council for deferral after the AU’s
extra-ordinary summit on October 11
and 12 in Addis Ababa, Ethiopia.
(READ: AU cites terrorism in plea for
Kenya deferral)
SAME PRIVILEGE
The envoy had claimed in the letter to
the Security Council that failure to
defer the cases would worsen regional
security threats posed by terrorists.
The Trial Chamber V had on June 18
conditionally granted Mr Ruto’s
request to be excused from
continuous physically presence
throughout the trial.
The majority ruling was made by
judges Chile Eboe-Osuji and Robert
Fremr, who last week also granted the
same privilege to President Uhuru
Kenyatta. However Judge Olga
Carbucicia appended a dissenting
opinion, in the same way Judge
Kuniko Ozaki dissented to the
majority’s ruling in excusing
President Kenyatta.
The Trial Chamber ruled that Mr Ruto
be present during the opening and
closing statements of all parties and
participants; when victims present
their views and concerns in person
during the trial; the delivery of
judgment in the case and, if
applicable, sentencing and
reparations; and any other attendance
that may be ordered by the Chamber.
However, ICC prosecutor Fatou
Bensouda appealed the ruling, citing
two grounds: that the judges erred in
law by disregarding the attendance
requirement under Article 63(1) and
by excusing Ruto from attending
substantially all of his trial.
She also said the majority had erred
in law by excusing Mr Ruto on the
basis of his “important functions”,
which, in effect, meant bending the
Rome Statute to serve his
constitutional functions as the deputy
president.
Ms Bensouda had also obtained a
suspension of the ruling in the Ruto
case, thus requiring his presence in
court throughout the trial, failure to
which he risked having a warrant of
arrest issued against him. (READ:
African states step up push to put off
Kenya cases )
ABUSE OF COURT PROCESS
It remains to be seen if the unanimous
ruling by the ICC Appeals Chamber
will have any effect on President
Kenyatta’s last week’s conditional
excusal.
Mr Kenyatta’s trial is due to begin on
November 12, although he has made
an application to stop the proceedings
against him, citing abuse of the court
process by the prosecution.
Mr Fergal Gaynor, the Legal
representative of the victims in the
case against Mr Kenyatta praised the
Appeal Chamber’s judgement, saying:
“Today’s unanimous decision by the
Appeals Chamber answers the
question of whether an accused can
be excused from almost all of his trial
on the basis of official capacity. The
answer to that question is No.
“The Appeals Chamber has set down
the ground rules, which will apply to
any accused person who wishes to be
absent from trial, including Mr
Kenyatta. The Appeals Chamber has
unanimously affirmed that the
presence of the accused in the
courtroom “must remain the general
rule.”
The victims he represents, Mr Gaynor
said, “welcome” the Appeals
Chamber’s recognition that the
accused has to be continuously
present. He said that Kenya had
failed to grant justice to the victims of
the post-election violence, whose only
hope was the ICC.

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