Kenyan Deputy President Must Attend Trial

Kenya’s deputy president William Ruto will have to attend his Hague trial for crimes against humanity after an appeals chamber reversed a previous ruling excusing him from most sessions.

Prosecutors at the International Criminal Court (ICC) had appealed against the June 18 ruling by the trial chamber, which would have allowed him to be absent so as to conduct his duties as deputy head of state.

The trial of Ruto and his co-defendant, former broadcaster Joshua Arap Sang, began on September 10 in The Hague. They are charged with inciting and organising the violence that engulfed Kenya following the disputed outcome of a presidential election in December 2007. More than 1,100 people were killed and 650,000 others were uprooted from their homes in months of political and ethnic violence. Both men face charges of murder, persecution and forcible population displacement.

The June decision stated that Ruto would be able to miss routine hearings, although he must be physically present during opening and closing statements and when victims presented their concerns in person during the trial.

On July 29, Prosecutor Fatou Bensouda filed an appeal on the premise that according to the Rome Statute which underpins the ICC, all suspects are equal before the law. She also argued that allowing Ruto to skip sessions would be giving him special treatment not accorded to his co-accused Sang.

Since a ruling on the prosecution appeal was pending, Ruto has been required to be continually present at his trial from the start.

On October 25, the five judges of the ICC’s appeals chamber delivered a unanimous decision that Ruto would now only be excused under “exceptional circumstances”.

Criticising the June decision, the appeals chamber’s presiding judge, Sang-Hyun Song, said, “The trial chamber provided Mr Ruto with what amounts to a blanket excusal before his trial had even commenced, effectively making his absence the general rule and his presence an exception.”

Judge Song this week said Ruto must be present during the trial, as “the accused person is not merely a passive observer of the trial but the subject of the criminal proceedings and as such an active participant therein”.

However, Judge Song also said that the prosecution’s interpretation of the attendance requirements laid out in Article 63, paragraph one of the Statute had been “unduly rigid”.

In its written decision, 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. Furthermore, any absence should be considered on a case-by-case basis and be limited to that which is strictly necessary”.

In a separate case, Kenyan president Uhuru Kenyatta is due to stand trial next month on similar charges. The trial chamber has partially excused him from attending all sessions of his trial to enable him to address his responsibilities at home.

The appeals ruling in Ruto’s case comes amid intense lobbying by the African Union and the Kenyan government to have both his and Kenyatta’s cases deferred. The United Nations Security Council is currently considering whether to suspend them for a period of one year – the maximum permissible. (See Kenya Seeks Delay to ICC Trials.)

Earlier this month, Ruto said he wanted to be excused from his trial or have it suspended to enable him to manage domestic security in the aftermath of the attack by Somali Islamists on the Westgate mall in Nairobi which left at least 67 people dead and hundreds injured. Immediately after the siege, the court granted him a one-week break to attend to urgent security matters.

J.J. Wangui is an IWPR reporter in Nairobi.