International legal experts and human rights groups in Kenya have strongly criticised a decision by judges at the International Criminal Court ( ICC) for their decision to allow Deputy President, William Ruto not to attend most of his trial in The Hague for crimes against humanity.
Some lawyers question the legal basis of the judges’ ruling on June 18, which permits Ruto to absent himself from most of the proceedings.
He will still have to be present in court at certain key points, including the opening and closing statements by all parties, sessions at which victims of the crimes in question present their concerns in person, the judgement, and any sentencing hearings.
The judges issued their decision after Ruto’s lawyers requested that rather than their client having to be present in The Hague throughout the trial, he should be allowed to remain in Kenya so that he can attend to his duties as deputy head of state.
President Uhuru Kenyatta, too, faces trial at the ICCfor orchestrating the bloodshed that brought Kenya to its knees following the disputed result of the 2007 presidential election.
A third defendant, journalist Joshua Arap Sang, is similarly charged with responsibility for the violence which left 1,100 Kenyans dead and around 650,000 displaced from their homes.
Rights groups are concerned that following the pressure put on the court and the international community by the Kenyan government and the African Union to halt the cases in The Hague, this decision gives the impression that the court is making concessions to the new state leaders.
The judges’ ruling stated that allowing Ruto to be absent from his trial “was strictly for purposes of accommodating the demanding functions of his office as deputy head of state of Kenya and not merely to gratify the dignity of his own occupation”.
Prosecutor Fatou Bensouda has asked the judges for permission to appeal against the decision.
The decision has drawn criticism from legal experts who believe the judges have bypassed a clause in the court’s founding treaty, the Rome Statute, which states that defendants “shall be present during trial”.
Despite the provision, two of the three judges ruled that it was possible to grant an exception based on Ruto’s specific circumstances.
The two – Judge Chile Eboe-Osuji and Judge Robert Fremr – emphasised the presumption of innocence and ruled that rather than enforce the provision, it was more important to do what is “fair, reasonable and just” under the court’s procedures.
The third judge, Olga Herrera Carbuccia from the Dominican Republic, disagreed with her colleagues and said the Rome Statute provision could not be ignored.
Danya Chaikel of the International Bar Association in The Hague questioned the judges’ decision to apply a flexible interpretation to the rule that makes it plain that defendants “shall be present during trial”.
“In legal drafting ‘shall’ normally imposes a duty, not a right,” Chaikel said. She also said that a second rule makes it a right for the accused to be present at trial.
“This means presence is both a duty and a right [for defendants], meaning a trial shall not carry on if an accused is not present, whether they wish to be so or not,” she said.
Chaikel pointed out that while the Rome Statute provides for suspects to be absent during the pre-trial stage of proceedings, there is no such provision when it comes to the actual trial.
“Whether justified or not, the drafters of the Rome Statute clearly decided to include this duty to be present during the trial,” she said.
The judges’ reasoning that Ruto warrants special treatment because he is deputy president has worried many legal experts.
The judges stressed that heads of state and other senior government officials were not immune from prosecution at the ICC, but said this did not prevent concessions being made on the grounds that a defendant was in public office.
They cited “the traditional concern of international law to avoid undue hindrance of heads of state and senior state officials in their performance of legitimate functions on behalf of their states”.
However, lawyers are concerned that taking Ruto’s new status as deputy president into account violates another provision in the Rome Statute that says the court will treat all defendants equally, with no exceptions for those in senior government positions.
According to Chaikel, Ruto is no different to other defendants who come before the court.
“All suspects and accused persons sacrifice employment and personal commitments to attend trials that can go on for years and years,” Chaikel said. “To say this is a special case because of Mr Ruto’s political status seems to go against the principle that all accused persons are treated equally.”
Since Kenyatta and Ruto were elected, the Kenyan government has argued that the ICC cases are no longer valid, given that the two men have been democratically endorsed by the Kenyan electorate.
For its part, the ICC has gone to great pains to point out that the outcome of the March election will have no effect on the trials of Kenyatta and Ruto in The Hague.
Esther Waweru, legal affairs programme officer at the Kenya Human Rights Commission, says the new decision can only be interpreted as the court bending its own rules to accommodate those in powerful positions.
“The Rome Statute is clear that at the time of trial, the accused must be present throughout,” she told the Standard. “So for us, that decision can only mean that for so long as you are in high office, even the legal provision of the ICC can be twisted.”
David Donat Cattin of the NGO Parliamentarians for Global Action believes that the seeds of the June 18 ruling were sown when pre-trial judges took a decision in March 2011 not to issue arrest warrants for the Kenyan suspects, who were instead asked to appear voluntarily before the court whenever requested to do so.
He believes that this “extraordinary situation”, where senior officials accused of mass crimes are allowed to remain at large, has placed the judges in a tight spot, and that they decided to grant Ruto’s request in order to secure his further cooperation with the ICC process.
“[The judges] sort of gave in partially to this request to keep this presumption of cooperation valid,” Donat Cattin said. “With this decision the majority of the judges are saying, ‘Let’s see how far we can go in ensuring the full cooperation of the accused.’”
So far, all three accused have pledged to cooperate with the court.
In Kenya, some suspect that the judges were swayed by the recent requests from the Kenyan government and the African Union for the cases at the ICC to be halted altogether.
“It appears the court is finally curving to political pressure,” Godfrey Musila, an international lawyer in Nairobi, told the Standard
Speaking during a trip to Nairobi two weeks ago, ICC spokesman Fadi El-Abdallah dismissed such claims.
“ ICC judges only consider the merits of an application and cannot be swayed by political declarations.ICC proceedings are purely a judicial process,” El-Abdallah said.
“No one can be above the law simply because they won an election. The excusal was simply to accommodate the demanding functions of his [Ruto’s] office.”-standardmedia.co.ke
