DP Ruto asks ICC for two-week breaks

By Felix Olick

Deputy President William Ruto has asked International Criminal Court (ICC) to grant him two weeks breaks in court sessions during his trial to allow him discharge official duties.

“The defence respect fully requests that the Trial Chamber vary the court sitting schedule in order that this case sit two weeks on, two weeks off from the start of trial until further notice and, in any event, until the Appeals Chamber renders its decision on the appeal,” said the application filed by his lawyer Karim Khan.

This followed the Appeal Chamber’s ruling to grant the prosecution’s request that Ruto continuously attends his trial pending determination of the appeal contesting an earlier decision to excuse him from portions of his trial scheduled to commence on September 10.

The defence argued Ruto has “at all times co-operated with the ICC”. “Mr Ruto wishes to navigate a way where he can do this while discharging his constitutional responsibilities as the democratically elected Deputy President of the Republic of Kenya,” read the application.

ICC Prosecutor Fatou Bensouda appealed the Trial Chamber’s decision and asked the Appeals Chamber to suspend the decision if it is unable to resolve the case before Ruto’s trial commences.

Legal framework

And in their decision Tuesday, the judges acknowledged the likely difficulties should Ruto be tried in absentia before Bensouda’s appeal is heard and determined.

“The Appeals Chamber notes the Prosecutor’s concerns regarding the trial proceeding on the basis of an incorrect legal framework and the difficulties that may arise should witnesses who testified in Mr Ruto’s absence be unwilling or unable to return to testify again,” the judges ruled.

“In all the circumstances of this case, the Appeals Chamber finds that the consequences of implementing the impugned decision prior to the issuance of the judgement on the Prosecutor’s appeal, would be difficult to correct and may be irreversible.”

In June, the Trial Chamber excused Ruto from being present in court except during key parts of the trial, such as the opening and closing statements, but not throughout as is customary.

“The Chamber stressed that permission granted Ruto to not be continuously present was strictly for purposes of accommodating the demanding functions of his office as Deputy President of Kenya and not merely to gratify the dignity of his own occupation of that office,” the judges ruled.

However, they gave a raft of strict conditions that Ruto had to comply with and declared that his new position in government would not guarantee him immunity from the prosecution.

Irreversible situation

But Bensouda accused the Trial Chamber of applying the Rome Statute selectively by allowing Ruto to skip some of the trial sessions, which she said was in contravention of Article 63(1) that requires the accused to be present during a trial.

In their decision, the appeal judges said that in the past, the Chamber, when deciding on requests for suspensive effect, had considered whether the implementation of the decision under appeal would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to ruler in favour of the appellant.

President Uhuru Kenyatta, who is also facing similar trials, did not apply to be excused from attending some of his trials. He instead asked to be allowed to follow the proceedings via video link.