The International Criminal Court (ICC) judges rejected a petition by President Uhuru Kenyatta to be excused again from personally attending proceedings of the court, raising the possibility that he could next month become the first serving Head of State to grace The Hague courtroom as an accused person.
The President will make his first appearance in the court in The Hague as President on Wednesday next week, in a development that could trigger fresh debate regarding the trial of a sitting Head of State by the court, something that the African Union has agitated against.
However, a decision not to attend is a personal matter for the President and his legal team, if it is in an option, because it would violate the terms of the summonses to appear, which if breached could make arrest warrants to be circulated to all State parties to the Rome Statute.
The Trial Chamber V(b) yesterday rejected twin requests by the President to have his lawyers represent him at the status conference on October 8 or in the alternative to have it postponed to a later date but on agreement it would be participation via video link from Nairobi.
The Chamber, by majority, found that the requirements of justice in the case necessitate the physical presence of the accused at the Court.
Judges rejected the defence argument that the President had prior State engagements in Uganda, observing the date of the Status Conference coincided with when opening statements of the trial would have taken place in his presence.
The Chamber noted the matters to be discussed directly impact the interests of the accused, victims and witnesses.
The last time President Kenyatta appeared in court at The Hague was during the Pre-Trial hearing in April 2011.
He also appeared for a status conference via video link in February last year, days before he was elected President.
The President has not been required to attend any other status conferences since he was elected in March 2013.
However, early last week, the Trial Chamber ordered him to be present during the status conference on October 8, which will discuss cooperation between the Office of the Prosecutor and the Kenya Government over the controversial disclosure of his financial records and other personal documents.
The Chamber adjourned the start of the trial scheduled for October 7 and set two status conferences for that and the following day. The court ordered the President to attend only on the second day. But his defence team applied to have him excused from attending the conference or reschedule it to a later date and allow him take part via video link.
His lawyers filed the application last week on the ground that as chairman of East African Community Heads of State, Uhuru was scheduled to attend the Northern Corridor Infrastructure Summit in Kampala on that day. And on Thursday next week President Kenyatta was scheduled to attend Uganda’s 52nd Independence Day celebrations.
The defence team said in their application that President Kenyatta had expressly waived his right to be present in court as he was represented by his legal team.
“It is important to Kenya’s national interests that Mr Kenyatta as Head of State represents his people effectively at the meeting on October 8, 2014, and is present to show their support for an important neighbouring State on the day of celebration on October 9, 2014,” said his lawyers Steven Kay and Gillian Higgins.
They said attendance by video link would allow the President to perform his “extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court.”
“Physical attendance by Mr Kenyatta in The Hague would entail two to three days travel time, which would significantly impact upon his ongoing duties as Head of State and Chairman of the East African Community at a time of significant and important challenges nationally and internationally which require his constant attention.
In her response Chief Prosecutor Fatou Bensouda said the court had discretion to decide whether or not to grant the requests.
Bensouda argued that though the Trial Chamber V(b) had previously allowed President Kenyatta to attend a similar conference via video link from Nairobi it should also have discretion to allow or reject his application.
She however opposed a request to have President Kenyatta excused from attending the conference, saying the issue did not arise as the trial had not opened.
“The Chamber has previously excused Mr Kenyatta from attending status conference or has permitted him to attend by video link and. The question of whether the Chamber should do so here is a matter for the Chamber’s discretion and will turn on the specific matters it intends to address during the status conference,” Bensouda said.
Bensouda observed that no clear reasons for attendance by video link had been given, other than Uhuru’s status and the distance he would have to travel. “The Chamber may consider that these alone do not represent reasons to excuse him from the attendance which would be required of any other accused person,” she said.
The prosecutor argued if the Chamber decides that the President’s attendance was required, they would not oppose the rescheduling of the status conference to a near future.
The application was also opposed by the counsel representing the victims saying evena persons charged with lesser offences in Kenya were required to attend court.
In their unanimous ruling, the Trial Chamber went on: “This case, the Chamber, having had regard to the matters to be considered, has already indicated that it considers the Status Conference to constitute a critical juncture in the proceedings. The Chamber notes the matters to be discussed at the status conference arising from the Notice and the responses thereto directly impact the interests of the accused, victims and the witnesses.”
It added: “The Chamber by majority finds that the requirements of justice in this case necessitate the physical presence of the accused at the court.”
The judges rejected the defence argument that President Kenyatta engagement in Uganda had been planned before the setting of the status conference dates, which was originally the date for the start of the trial.
“The status conference was convened for a date upon which the opening statement of the trial would have been expected to take place, the chamber does not find merit in the defence submission regarding the accused engagement having been planned prior to convening the status conference. Therefore the Chamber is also not persuade by the alternative request for an of the status conference,’’ it concluded.