Kenyan Deputy President Allowed to Miss Hearings

Friday, 17 January, 2014

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J.J. Wangui

Judges at the International Criminal Court (ICC) in The Hague have again excused Kenya’s deputy president from attending large parts of his trial, invoking a new rule that came into force late last year.

Presiding judge Chile Eboe-Osuji issued the ruling in court on January 15 after prosecutors and the defence had delivered their arguments to the three-judge panel. The bench will issue a written ruling in due course.

The judges gave a total of nine conditions that Deputy President William Ruto must meet in order to be granted absence from proceedings.

He will still be required to attend certain hearings, such as when victims present their views to the court, and during closing statements.

His presence in the courtroom is also required for the judgement, and if applicable, at any subsequent sentencing or reparation hearings. Ruto must also attend all hearings during the first five days of court sessions following a judicial recess.

Ruto is facing trial in The Hague on charges of orchestrating the bloody violence which hit Kenya in the aftermath of a disputed presidential election six years ago.

Kenya’s president, Uhuru Kenyatta, is also due to be tried in a separate case, although prosecutors have asked judges to delay proceedings for three months so they can collect more evidence. A third suspect, Joshua Arap Sang, is charged alongside Ruto.

More than 1,100 Kenyans were killed and over 600,000 others forced from their homes when political grievances descended into ethnic bloodshed in December 2007.

Ruto’s trial started in September last year. His lawyers have repeatedly requested that their client be allowed to stay in Kenya so that he can attend to his duties as deputy head of state, rather than having to remain in The Hague.

In June last year, trial judges agreed that some parts of the proceedings could be held in his absence. However, the appeals chamber overturned their ruling after prosecutors challenged the legal basis given for granting absence to a defendant. 

In an October 2013 decision, appeals judges ruled that Ruto had to attend his trial but that he could ask judges to grant him absence “in exceptional circumstances”. 

But at a meeting in late November, the Assembly of States Parties – which consists of all 122 members of the ICC – decided to add a new regulation to the court’s Rules and Procedure of Evidence. The new rule allows defendants who have “extraordinary public duties at the highest national level” and who are not the subject of an arrest warrant to ask judges for leave of absence from their trial, and be represented instead by their lawyers.

Prosecutors have consistently opposed the defence request for Ruto’s excusal. This week, they argued that even under the new court regulation, allowing absence to become the rule rather than the exception would go against the terms of the court’s founding treaty, the Rome Statute. The statute mandates that a defendant “shall be present” during trial, and that the court does not differentiate between those suspects who hold official status and those who do not.

“What message is sent when a high-ranking person is excused and a less high-ranking person has to attend?” prosecutor Anton Steynberg asked judges. “It will be perceived as unfair to excuse William Ruto while Joshua Arap Sang still attends trial.”

Prosecutors also argued that the defence’s request had failed to demonstrate that there are particular “extraordinary public duties at the highest national level” that Ruto has a mandate to carry out.

Steynberg questioned whether “every official act done by a deputy president will necessarily be ‘extraordinary’”. He gave examples such as opening roads or addressing the first session of parliament.

But Ruto’s lawyer, Karim Khan, countered that his client is mandated by the Kenyan constitution to attend to public duties to serve his nation.

“The duties of the deputy president of the Republic of Kenya amount to extraordinary public duties,” he said in court.

VICTIMS RESPOND IN KENYATTA CASE

In a second development this week, the legal representative for victims in the case against Kenyatta filed a response to the prosecutor’s request to delay proceedings by three months.

The trial was scheduled to start on February 5, but Prosecutor Fatou Bensouda has asked for time to find additional evidence after a key witness dropped out at the end of last year.

Bensouda has accused the Kenyan government of obstructing her efforts to build a case against the president.

The victims’ representative, Fergal Gaynor, supported the prosecution request for a postponement, but cited concerns among some of his clients about whether they will ever see justice done for the crimes committed in 2007 and 2008.

“Please tell our lawyer to tell us the whole truth, so that we can cry our last tears knowing that there will be no justice anywhere in the world,” was the response of one victim to the news that Bensouda had asked for a delay to the case.

“They have forgotten the suffering that we faced during the post-election violence. They do not care for us,” another victim was quoted as saying. “We are crying for justice. Who now will hear us?”

In his filing, Gaynor questioned whether the prosecutor had done everything within her powers to compel the Kenyan government to provide the evidence requested. He said it was not clear why she had not made more requests to the judges to improve cooperation by the government, or why she had not initiated contempt proceedings on the basis of allegations of interference with witnesses.

“It therefore appears that the prosecution has not taken all measures open to it to secure access to all relevant evidence, and to present that evidence at trial,” Gaynor wrote.

J.J. Wangui is an IWPR reporter in Nairobi.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.