All not lost for Uhuru excusal from ICC trial

THE HAGUE, Netherlands, Nov 26 – Even as the International Criminal Court reversed its ruling allowing President Uhuru Kenyatta partial presence at his trial, Kenya was making progress at the Assembly of States Parties for reinstatement of the excusal.

Attorney General Githu Muigai who is leading Kenya’s delegation at the ongoing talks in The Hague said a breakthrough had been made at the Technical Drafting Committee on Amendments to alter rule 134.

“It was agreed to excuse a sitting president, deputy or any other government official performing extra ordinary functions from being physically present at trial. Such persons shall be represented by counsel.”

He said the agreement was reached after two days of intense lobbying and was tabled before the Working Group on Amendments for approval on Tuesday evening, before being sent to the plenary for adoption by Thursday.
“We expect a fresh rule creating circumstances that have not existed before, he said.”

The adoption of the new rule will provide a window for an application to be excused from continuous presence at trial.

“The Trial Chamber shall consider the request expeditiously and if alternative measures are inadequate, shall grant
the request where it determines that it is in the interest of justice and provided that the rights of the accused are fully ensured.”

The Kenyan delegation was confident that the amendment will pass at the plenary. “The difficult task was agreeing at the technical drafting stage.”

“In our view, this amendment has secured a fine distinction between the immunity of a head of state which will be dealt with at an opportune time and attendance, which is procedural,” Muigai said.

He paid tribute to the able representation accorded to Namibia, South Africa, Uganda, and several other African delegates that were part of the group working on the effort.

He said the rules were not inserted to the Statute for the here and now, but were for the benefit of all members of the assembly. “The court must be assisted to improve its procedures.”

On Tuesday, Trial Chamber V(b) of the ICC reconsidered its previous decision excusing President Kenyatta from continuous presence at trial.

“Trial Chamber V(b) held that as a general rule, 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 court said in a statement.

The chamber reasoned that the appeals judgment, delivered on 25 October 2013 in the case against William Ruto and Joshua arap Sang, provided important new information which justified the reconsideration.

“The Appeals Chamber had concluded that a Trial Chamber enjoys discretion under article 63(1), which states that “(t)he accused shall be present during the trial”, but that such discretion was

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