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

PHOTO | BILLY MUTAI Deputy President William Ruto arrives at the ICC in The Hague on October 25, 2013 accompanied by Kenya’s ambassador to the Netherlands Makena Muchiri.  NATION MEDIA GROUP

In Summary

• The summary of the ruling, which was read orally in an open court by Judge Song, also rejected Mr Ruto’s request for an oral hearing
• It remains to be seen if the unanimous ruling by the ICC Appeals Chamber will have any effect on President Kenyatta’s conditional excusal

By Walter Menya
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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.