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ICC rules that President Uhuru Kenyatta must be continuously present at trial

President Uhuru Kenyatta. (Photo:File/Standard)

By Alex Ndegwa

Nairobi, Kenya: President Uhuru Kenyatta was dealt a blow after ICC judges ruled he must be present at his trial in The Hague.

It was a double blow as it emerged Kenya was last evening battling a proposal that officials fear if upheld could further complicate the International Criminal Court (ICC) cases against the President and his deputy William Ruto.

There was panic within the Kenyan delegation over a draft resolution providing that recorded testimony can be introduced instead of hearing the witness in person at the ICC.

Prior recorded testimony from either a dead witness or one who cites fear of reprisal to avoid testifying in court could be admitted if the proposal is upheld at the ongoing Assembly of States Parties.

Tuesday, the Trial Chamber V(b) of the ICC reconsidered its previous decision excusing President Uhuru from continuous presence at trial, citing the recent judgment by the Appeals Chamber. 

“Trial Chamber V(b) held that as a general rule, Mr Kenyatta must be present at trial. Any future requests to be excused from attending parts of the trial will be considered on a case-by-case basis,” the judges ruled.

They cited the Appeals Chamber verdict in the Ruto case that absence is only permissible under exceptional circumstances, and must be limited to that which is strictly necessary. President Uhuru’s trial is scheduled to start in February.

But there was a ray of hope after Kenya successfully lobbied for the plenary of the ICC conference to consider adopting a proposal to exempt the president and his deputy from continuous attendance in court.

The setback came on a day Kenya was fighting the latest headache related to presentation of evidence in court that could see the prosecution — which has complained of frustrations over the Kenyan cases — gain an upper hand.

The new proposal for evidence to be admitted at trial in the absence of the witness altogether has generated heat at the ongoing Assembly of States Parties at The Hague.

The amendment to Rule 68 of the Rules of Procedure and Evidence seeks to increase instances in which prior recorded testimony can be introduced in the absence of the witness.

These include instances where a witness is dead or unavailable to testify due to obstacles that “cannot be overcome with reasonable diligence.”

Also where the failure of the person to attend or to give evidence has been materially influenced by improper interference, including threats, intimidation or coercion.

During Ruto’s trial, the concealing of the identity of witnesses caused uproar, with defence lawyers arguing that it could encourage false testimony.

The Kenyan delegation reads mischief in the proposal, pointing out that ICC prosecutor Fatou Bensouda seemed to have laid the basis for its application in the Kenyan cases.

Bensouda has repeatedly said her prosecution of the Kenyan cases is frustrated by bribery, intimidation and execution of potential witnesses.

In a filing on November 5 while opposing Uhuru’s application to stop the trial on grounds of illegal conduct by the prosecution, Bensouda recounted the prosecution’s difficulty in accessing Mungiki witnesses.

And on November 20, while seeking protective measures for a witness due to testify in Ruto’s trial, Bensouda claimed “on-going attempts to interfere with, bribe and expose witnesses.”

The proposal formulated by organs of the Assembly over the last one year is packaged as designed to allow the judges of the Court to reduce the length of Court proceedings and streamline evidence presentation.

Predictably, defence lawyers have rejected the proposed amendment saying it provided for the possibility of parties introducing hearsay evidence without cross-examination.

The lawyers have urged the State Parties to carefully re-examine the proposed amendment as they contravene applicable law and practice of the court.

The amendment denied the accused the “minimum guarantee to confront witnesses against him or her, a fundamental right under the Statute and international human rights.”

The presentation of evidence at the ICC requires “witnesses (to) appear before the Trial Chamber in person and give their evidence orally,” argue the defence teams. 

“The proposed amendment constitutes a displacement of the principle of orality as enshrined in Article 69(2) of the Rome Statute which favours live in-court testimony.”

Also the proposal disregarded the court’s protective measures regime and “favour expedience over fundamental principles of justice.”

At present, the rules on prior recorded testimony are on condition that both the prosecutor and the defence had the opportunity to examine the witness during the recording. It is also permitted where the witness who gave the previously recorded testimony is present before the Trial Chamber and parties have the opportunity to examine the witness during the proceedings.

The Working Group on Lessons Learnt (WGLL) on proposed amendment said the proposals “reflect practice in international criminal tribunals.”

The Assembly of States Parties established the WGLL at its last session last year. The Kenyan cases were confirmed for trial in January, last year.

Kenya appears close to securing a compromise to ensure her leaders do not have to be present during their trial at The Hague.

The proposal is for the leaders to be represented by their lawyers and to follow parts of their trial via video-link.

But the proposal to ensure that a sitting president can only be tried after serving the presidential term will be deferred to a special Assembly of State Parties in February.