How President Uhuru feels over ICC trials

By Felix Olick at The Hague and Geofrey Mosoku in Nairobi

Kenya; The trial of Deputy President William Ruto for crimes against humanity has “distressed” said his spokesman as African nations kept up pressure on the International Criminal Court. State House said the President was troubled after watching the opening of the trial of his deputy on Tuesday at the Hague-based court, where Prosecutor Fatou Bensouda accused Ruto of grave crimes.

“I can certainly tell you that the President was distressed to see the Deputy President in the dock (at ICC),” said President Kenyatta’s spokesman, Manoah Esipisu, on Thursday, referring to the proceedings in which Ruto was charged with murder, deportation and persecution.

“Knowing how far he has come with the Deputy President and knowing that promoting national cohesion and unity has always been at the heart of their approach to politics, the President felt deeply saddened by the whole episode,” Esipisu added.

Ruto denied the charges alongside his co-accused, journalist Joshua Sang.

President Kenyatta’s trial is scheduled for November 12.

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The Standard established that African nations have gone into overdrive regarding the attendance of the two leaders at the Hague-based trials.

Ethiopian Prime Minister Hailemariam Desalegn, the current African Union chairperson, and Dr Nkosazana Dlamini Zuma, chairperson of the AU Commission, have written to the ICC President over the Kenyan cases.

The letter urges the ICC to “allow Kenya meet national and international obligations” and requests that either the cases are stopped pending consideration of an AU application or the pair is allowed to decide which sessions to attend.

On Thursday, ICC officials confirmed that five countries namely Tanzania, Uganda, Eritrea, Rwanda and Burundi have sought to be allowed to make presentations on the attendance of the two leaders for trials at The Hague.

The countries want to file submissions on the prosecution’s appeal challenging an earlier decision by judges to excuse Ruto from being present throughout the trial.

“The Court received filings from five African countries requesting to be uthorized to submit an amicus curiae filing, without participating in the proceedings,” ICC Outreach Co-ordinator for Kenya and Uganda Maria Kamara confirmed.

“If uthorized, the states will present their views on the correct interpretation of the Rome Statute Article 63, which reads, “the accused shall be present during the trial”.

On Sunday, Uhuru cautioned the ICC that his continued co-operation will depend on its timetable, and ruled out the presence of both he and his deputy at The Hague at the same time. The ICC has since assured that the cases will not overlap.

Pull Kenya out

On Thursday, Esipisu said the position of the President and his deputy on the ICC cases was that they should be conducted within the country’s Constitution.

 “The President and Deputy President have always co-operated and will continue to do so, but this must be within the context of our own constitutional requirements,” he added. 

The two chambers of Parliament have passed a resolution urging the Government to pull Kenya out of the ICC. But Esipisu said the presidency was yet to apply itself to the matter of withdrawal, adding that Attorney-General Githu Muigai will get the report before the state decides on the next course of action.

“The Government is obviously sensitive to the voices of the people and those voices are articulated by their duly elected representatives,” he said in reference to the Motions in the National Assembly and the Senate.

The AU appeared to change tack in pushing for a referral of the Kenyan cases from The Hague and is now challenging the court to excuse President Kenyatta and his deputy from continuous presence at trial.

Already, five African states, including those that have not ratified the ICC’s founding treaty — the Rome Statute — have notified the judges of their intention to challenge the prosecution from insisting that Deputy President Ruto must be present in court. Ironically, Rwanda — which is also seeking to be admitted as a friend of the court — is not a state party to the Rome Statute and was also involved in deadly violence during the 1994 genocide.

The new requests are related to the prosecutor’s appeal against the Trial Chamber V(a) decision granting Mr Ruto excusal from being physically present in court except for specified hearings.

 The Appeals Chamber headed by ICC President Sang-Hyun Song is yet to make a decision on the requests.

According to the applications made to the ICC Registry, the AU states argue that the requirement that an accused be present throughout the trial should be reviewed in light of present circumstances where sitting government officials are on trial.

High office

“If leave is granted by the Appeals Chamber, the amicus curiae brief will be directed towards how Article 63 should be approached. The brief will address the importance of according the article a broad and flexible interpretation — one which encourages State co-operation in the widest possible set of circumstances and without jeopardising the constitutional responsibilities of leaders,” said Tanzanian Attorney-General Justice Frederick Mwita Werema.

According to the applications, the brief will also consider the balance to be struck between those subject to the Court’s jurisdiction but who also occupy high office.

“The brief will observe that in certain circumstances, the rights of the accused, the rights of victims and the rights of other interested constituencies such as voters in democratic States, can all be accommodated in an effective and meaningful fashion within the Court’s framework and without any negative impact on the Court’s aims,” said Burundi’s Minister for External Relations Kavakure Laurent. This is the latest move by the African nations after it resolved a few months ago to push for a referral of the twin Kenyan cases through the United Nations Security Council.