Ruto and Kenyatta are charged with
crimes against humanity in orchestrating a wave of violence after an
election in 2007, but the cases have fed a growing sense of grievance
among Africans, who say the court is picking unfairly on their
continent.
Kenya is both East Africa's largest economy
and an ally of the West against radical Islam in the region, especially
neighbouring Somalia. Ruto and Kenyatta say at least one of them must
be in Kenya at all times to ensure it is properly governed.
The
decision to excuse them had promised to ease some of the African
resentment. But ICC President Sang-Hyun Song ruled on Friday that Ruto's
absence "can only take place in exceptional circumstances and must not
become the rule".
ICC
Prosecutor Fatou Bensouda then asked the court also to set aside a
decision to excuse Kenyatta - who has been urged by the AU to boycott
the court - from continuous presence at his trial, which starts on
November 12.
Clair Duffy, a
senior lawyer at the International Bar Association, noted after the
Ruto decision that "the application of identical laws arises in respect
of Kenyatta's case".
The post-election violence killed 1,200 people and uprooted tens of thousands from their homes in early 2008.
In
practice, Ruto could still stay away from court for much of his trial,
but judges will need to authorise each absence. They promptly did so on
Friday, giving him permission to miss the first three days of next week,
after his lawyers said he was needed at home to fill in for Kenyatta,
who will be in Rwanda.
MALL ATTACK
Ruto's
trial had already been adjourned last month to let him return home to
deal with the aftermath of an Islamist militant raid on a Nairobi
shopping mall that killed 67 people, including Kenyatta's nephew.
Ruto's
lawyer, Karim Khan, pledged that Ruto would continue to cooperate with
the court. But a political ally of Ruto's in Nairobi condemned the
ruling as "political".
"I
will bring a bill in parliament next week to facilitate our plan to
disengage (from the ICC)," said Aden Duale, the majority leader in
Kenya's parliament.
The AU has said it will ask the U.N. Security Council to order Kenyatta's trial to be deferred.
U.N.
Security Council envoys have said they will consider a request, but
note that the Council turned one down in 2011, and also rejected a
request in May for the two cases to be terminated because it had no such
prerogative.
A diplomat
with a senior Council member state said that, when the issue was
discussed informally in May, eight members were opposed to deferral of
the cases and the other seven were more sympathetic. The diplomat said
the situation probably had not changed since then.
President
Macky Sall of Senegal added his voice on Friday to a chorus of African
criticism of the ICC, which has charged only Africans in its first
decade of existence.
He told the Swiss newspaper Neue Zuercher Zeitung that the ICC's charges threatened to "decapitate" Kenya.
For his part, Ruto said he would fight to clear his name despite Friday's setback.
"Circumstances
not withstanding we will triumph because the truth, the law and most of
all God is on our side. Be blessed," he said on his official Twitter
feed.
(Additional reporting by Michael Shields in Vienna and Michelle Nichols at the U.N.; Editing by Kevin Liffey)