Ruto bid to skip trial challenged

International Criminal Court Chief Prosecutor Fatou Bensouda addressing the press at a past press conference. She has appealed the decision to allow deputy President miss most hearings. Photo/FILE  NATION MEDIA GROUP

By BERNARD NAMUNANE 

In Summary

• Bensouda also wants Trial Chamber to decide Uhuru’s application to be tried through a video link
• ICC prosecutor appeals decision to allow deputy President miss most hearings

The International Criminal Court prosecutor has sought the Trial Chambers’s permission to appeal against a decision to allow deputy President William Ruto to skip most of the trial hearings.

In an application filed on Monday, Ms Fatou Bensouda faulted the decision by Trial Chamber judges Chile Eboe-Osuji and Robert Fremr to grant Mr Ruto his wish to skip majority of the trial sittings.

Ms Bensouda submitted that the judges acted beyond the discretion provide for them in the Rome Statute and argued that by excusing Mr Ruto, and not his fellow co-accused Joshua arap Sang from the evidential phase of the proceedings, the judges had tossed the doctrine of fair conduct of hearings.

“The prosecution seeks leave to appeal the decision on the scope of the requirement that the accused be present during the trial and whether, or to what extent, the Trial Chamber has a discretionary power to excuse an accused from attending most of the trial and whether the test for an excusal of the accused developed by the Majority (judges) is supported by the applicable law,” she stated in her application.

Basing her argument on the dissenting opinion of judge Olga Herrera Carbuccia, Ms Bensouda warned that the absence of the Mr Ruto from the trials could be used as the reason for the Appeals Chamber to cancel the outcome of the hearings.

Judge Carbuccia disagreed with her two counterparts and argued that the ICC rules required the accused to be present throughout the trial and that by granting Mr Ruto permission to be away, the court was not treating all the suspects before it equally.

“If this trial is conducted largely in the absence of Mr Ruto according to the terms of the decision, then the two issues are likely to be raised as part of an appeal against a decision of acquittal or conviction. There is accordingly, a risk that the entire trial proceedings are nullified and must be repeated if the Appeals Chamber finds that the presence of the accused during the bulk of the trial is a non-derogable legal requirement under the Statute,” the prosecutor warned.

Ms Bensouda was responding to last week’s decision by judges Eboe-Esuji and Fremr, granting the Mr Ruto his wish to attend the opening and closing statement by all parties in the case he faces at the ICC.

The two judges argued that the Rome Statute gave the Trial Chamber the discretion to vary the trial sittings that an accused who has special functions to perform can attend.

In Mr Ruto’s case, they said that his duties as deputy President met the test of special circumstances.

On Monday, Ms Bensouda, argued that by allowing Mr Ruto to be absent from most of the trial hearings, the judges would be failing to meet the requirement of conducting the proceedings fairly. In particular, she argued that the judges’ decision appeared to give Mr Ruto privilege over Mr Sang.

Mr Sang, however, did not ask to be excused from attending hearings.

She urged the Trial Chamber judges to grant her permission to appeal against their decision, stating that the

Appeals Chamber will eliminate any obstacle that might hinder speedy and fair trial proceedings.

The ICC prosecutor, in the same vein, asked the Trial bench handling President Kenyatta’s case to decide on his application to be tried through a video link.

“Immediate resolution of this issue will give substantial guidance on whether Mr Kenyatta’s request is supportable under the Court’s legal framework,” she said.

Ms Bensouda also argues that since the trial proceedings were hostile, the rights of the prosecution and witnesses could be violated if Mr Ruto is absent from the sessions. For instance, she submits that there could be situations where the prosecution could want to identify the accused through a witness.

President Kenyatta, Mr Ruto, and Mr Sang are facing charges of crimes against humanity at The Hague arising from the 2007/8 post election violence in which 1,133 people were killed. While Mr Ruto and Mr Sang’s case is set to start on September 10, President Kenyatta’s date comes on November 12, 2013.