Row over proposed video link trials

By Cyrus Ombati

The controversy over the proposal that President Uhuru Kenyatta and his deputy William Ruto should follow The Hague trials through videolink raged as it emerged that Kenya had also made the request.This happened as delegates last evening began discussions on an AfricanUnion motion on “indictment of sitting Heads of State and Government and its consequences on peace and stability and reconciliation” at an assembly of ICC member states in The Hague, Netherlands.

Kenya’s AG Githu Muigai told the gathering that the International Criminal Court was not supposed to have a licence to act in a way that is politically or socially irresponsible.

“Across the world, there’s immunity for sitting Heads of State. What is so unique with this court (ICC)? We are not talking about immunities to shield an individual, we are talking about immunities to protect the State,” Prof Githu said.

A proposal by Britain to allow attendance by video conference at parts of the trial has kicked up a diplomatic storm after Kenya rejected it and accused UK of undermining its cause.

Yesterday, it emerged Kenya’s ambassador to the UN Macharia Kamau wrote to the chairperson of the Working Group on amendments to the Rome Statute, the Swiss Permanent Representative Paul Seger, submitting a similar proposal.

In the letter dated November 4, Kamau said Kenya wished to submit the proposal for amendments to the Rules of Procedure and Evidence of the ICC for the consideration of the Working Group at a meeting that was scheduled the following day.

Exceptional cases

The proposal sought an amendment that in exceptional circumstances, attendance at the ICC trial could be done through the use of communication technology.

Kenya proposed that Article 63 (2) be amended to read: “Notwithstanding Article 63 (1), accused may be excused from physical continuous presence in the court during the entirety of the trial after the Chamber satisfies itself that exceptional circumstances exists, alternative measures have been put in place and considered including but not limited to changes to the trial schedule or temporary adjournment or attendance through the use of communications technology or through representation by counsel.”

“Any such absence shall be considered on a case-by-case basis and be limited to that which is strictly necessary,” adds the proposal.

Kenya pressed that Rule 134 states that if the accused has been issued a summons to appear but due to exceptional circumstances has reasons not to be physically present before the court during the entirety of the trial, he or she shall submit a written request for an excusal or to attend hearings through the use of communications technology or through representation by counsel to the Trial Chamber.

“The Trial Chamber may append further conditions to an excusal, such as the requirement that the accused be present at the trial through the use of communications technology or through representation by counsel, if required,” reads part of the proposal.

Kenyan officials have denounced Britain’s proposal, saying it is designed to scuttle its African Union-backed amendment to shield sitting presidents and anyone eligible to act in the position from prosecution.

Chairman of the Committee on Defence and Foreign Relations Ndung’u Gethenji (Tetu) on Tuesday had secured permission for the National Assembly to hold an emergency sitting to discuss UK’s position that is in conflict with the Kenya-AU agenda.

Ongoing discussions

The Motion, however, did not materialise with the MP explaining the House wanted to give room to the ongoing discussions at the Assembly of States Parties in The Hague, Netherlands.

Kenya has also accused Britain of engineering the failure of the request for deferral of the cases against the Kenyan leaders. 

Eight UNSC members abstained from the vote, denying the resolution the mandatory nine votes required to enforce it.

Britain, which is among the eight UNSC members that abstained from the vote that sank Kenya’s deferral request, says its motion for video technology was independent and in no way was it tailored to replace any other proposal. 

At the Assembly of State Parties in The Hague, Africa is lobbying Asian members to secure the support of 81 members needed to amend the Rome Statute to exempt sitting presidents from trial. 

Kenya is pressing amendments to shield sitting presidents or anyone who can act in that capacity from prosecution, take away the power to sanction deferral from the UNSC and to review how the prosecutor investigates cases.