The International Criminal Court has reversed an earlier decision allowing President Kenyatta to skip sessions in The Hague.
According
to the decision by Trial Chamber V (b), the earlier ruling to allow the
President to be away during his trial has been put aside.
This
follows a decision by the Appeals Chamber, in the Ruto case, which said
that the accused must be in court unless excused by the judges in
exceptional circumstances.
As the decision was being
announced, a Kenyan delegation was fighting at an ICC meeting to have
the President and Deputy President William Ruto excused from attending
all court sessions and also to attend some of them by video link.
Attorney-General
Githu Muigai — who is leading the delegation — told reporters in The
Hague after an ASP meeting on Tuesday evening that he was hopeful the
reversal of the ruling would have little impact if ASP members adopt the
proposed amendments.
“President Kenyatta will be
allowed to skip trials at The Hague if specific rules and procedure (of
evidence) presented by Kenya is adopted by the working group on
Thursday.”
SURPRISE REQUEST
At
the same meeting, called the Assembly of State Parties, ICC prosecutor
Fatou Bensouda sprung a surprise request to amend the rules to allow her
to use statements of witnesses not in court.
Usually, witnesses must give evidence in person and be questioned by the person they have accused.
On Tuesday, the Trial Chamber said all requests to be away will be determined on a case-by-case basis.
“The
chamber reconsidered its previous decision excusing Uhuru Muigai
Kenyatta from continuous presence at trial, in light of the legal
clarifications provided by the Appeals Chamber in its recent judgment on
the matter,” said a statement from the ICC.
The judges
explained that their change of heart was motivated by an Appeals
Judgement’s decision the Ruto-Sang case which they said provided
important new information.
“The Appeals Chamber had
concluded that a Trial Chamber enjoys discretion under article 63(1),
which states that “the accused shall be present during the trial”, but
that such discretion was limited,” said the judges.
The
Appeals Chamber had further ruled that absence is only permissible
under exceptional circumstances, and must be limited to that which is
strictly necessary. The reversal of the decision followed a motion filed
by Ms Bensouda on October 28.
Mr Kenyatta is charged,
as an indirect co-perpetrator, with five counts of crimes against
humanity consisting of murder, deportation or forcible transfer, rape,
persecution and other inhumane acts allegedly committed during the poll
violence in 2007/08.
But on Tuesday evening,
Attorney-General Githu Muigai was busy fighting to block attempts to
push through amendments on Article 68 of the rules of procedure and
evidence.
Ms Bensouda wants pre-recorded audio, video
and written statements from witnesses unable to be physically present in
court, be accepted as evidence. The move came just as Kenya awaited a
plenary decision on an amendment seeking to free suspects from physical
presence in court through introduction of video conferencing.
The
decision expected at 5.30pm Kenyan time was delayed to give parties
time to lobby for or against the various proposed amendments.
If
Ms Bensouda’s request is adopted as proposed, then the statements
recorded from witnesses in the Kenya cases could be used in court and
past proceedings reopened if affected by the testimonies.
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