International Criminal Court rules Ruto to attend all trial sessions

By Felix Olick

NAIROBI, KENYA: Deputy President William Ruto has suffered a major setback at the International Criminal Court after the Appeals Chamber reversed a decision excusing him from continuous attendance at trial.

The Chamber headed by ICC President Judge Sang-Hyun Song unanimously reversed the Trial Chambers V (a) decision which granted Ruto conditional excusal from physical presence so that he can attend to his constitutional duties as deputy head of state.

The Chamber concluded that the Trial Chamber had interpreted the scope of its discretion to broadly.

“The Appeals Chamber held that before granting an accused excusal from physical presence at trial, the possibility of alternative measures must be considered, including but not limited to changes to the trial schedule or temporary adjournment,” the Judges said.

“Furthermore, any absence should be considered on a case-by-case basis and limited to that which strictly necessary,” said judge Song as he rendered the ruling on Friday.

In June, the three-judge panel ruled by a majority of two to one that the deputy president should be allowed to miss routine hearings in order to conduct state affairs.

The two – Judge Chile Eboe-Osuji and Judge Robert Fremr – emphasised the presumption of innocence and ruled that rather than enforce the provision, it was more important to do what is “fair, reasonable and just” under the court’s procedures.
The third judge, Olga Herrera Carbuccia from the Dominican Republic, disagreed with her colleagues and said the Rome State provision could not be ignored.

"Mr Ruto should not be given a different legal status on the basis of his personal position as deputy president of the Republic of Kenya," she wrote in her dissenting opinion.

Basing her argument on the dissenting opinion of judge Olga Herrera Carbuccia, Ms Bensouda appealed the decision.
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.

She 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.

On September 23, Kenyatta’s lawyer also asked judges to allow the president to be excused from attending proceedings so as to allow him to attend to his duties as president.