Hiiraan Online

PHOTO | FILE President Uhuru Kenyatta arrives at the International Criminal Court at The Hague.  NATION MEDIA GROUP

Sunday, October 27, 2013

Ms Bensouda wants the judges to recall their ruling that allowed President Kenyatta to skip portions of his trial and align it with Friday’s ruling by the Appeals Chamber in the case against Deputy President William Ruto.

In Friday’s landmark ruling, the Appeals Chamber by a unanimous decision reversed the ruling of Trial Chamber V (b) that had conditionally granted Mr Ruto absence from all the sessions of his trial.

The appellate judges said that though the absence of the accused from trial could be permissible under exceptional circumstances, they faulted the Trial Chamber judges of interpreting the scope of their discretion too broadly thereby making the excusal the rule rather than the exception.

“The Appeals Chamber concludes that the Trial Chamber in the present case interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power,” the five judges of the Appeals Chamber said.

“In particular, the Trial Chamber provided Mr Ruto with what amounts to a blanket excusal before the trial had even commenced, effectively making his absence the general rule and his presence an exception. Furthermore, the Trial Chamber excused Mr Ruto without first exploring whether there were any alternative options. Finally, the Trial Chamber did not exercise its discretion to excuse Mr Ruto on a case-by-case basis, at specific instances of the proceedings, and for a duration limited to that which was strictly necessary,” the ruling stated.

And now, Ms Bensouda wants the judges who allowed President Kenyatta to skip parts of his trials, due to begin on November 12, to reverse it, failing which she would seek leave to appeal.

“The Office of the Prosecutor will request Trial Chamber V(b) to reconsider its decision to conditionally excuse Mr Kenyatta from continuous presence at his trial or, in the alternative, to grant the OTP leave to appeal that decision,” Ms Bensouda’s office said in a brief statement.

The reasoning within the Office of the Prosecutor is that the Appeals Chamber decision rendered earlier positions taken by the Trial Chamber moot since it was an interpretation of the Rome Statute.

If Ms Bensouda has her way, then the move by the African Union to lobby the UN Security Council to defer the Kenyan cases will be the only way President Kenyatta can avoid the trial. The Security Council is expected to consider the request in the coming days.

The judges who granted Mr Ruto conditional excusal were the same ones who did the same for Mr Kenyatta. They are Judges Chile Eboe-Osuji and Robert Fremr. In the Ruto case, Judge Olga Carbuccia had dissented to the conditional excusal.

In the Kenyatta case, Judge Kuniko Ozaki had also dissented and criticised her colleagues’ reasoning to grant the excusal which she said went against the provisions of the Rome Statute.

“I find portions of the majority decision reasoning to be repetitive, irrelevant to the question before the Chamber (including the use of selective quotations from various authorities) and/or, in some cases, incorrect,” Judge Ozaki had said in her dissenting ruling.

Meanwhile, gaps have emerged in the Appeal Chamber’s decision which lawyers said have to be addressed as a matter of urgency.

The five judges had in their ruling said that excusal was permissible “in exceptional circumstances” without defining the parameters or the criteria for determining the exceptional circumstances which have now been left at the discretion of the Trial Chamber.

“The Appeals Chamber appears deliberately to have left undefined what are exceptional circumstances. It will be up to the Trial Chamber, having heard submissions from the parties, to decide in each instance whether the circumstances are genuinely exceptional.

I believe that the decision enables the Trial Chamber to take a pragmatic approach to the matter,” Fergal Gaynor, the Common legal representative for victims in the case against President Kenyatta, said.

The prosecution seems to have interpreted the “exceptional circumstances” as “unforeseen occurrences or emergencies” such as the Westgate terror attack.

This came up during Friday’s oral submissions in the excusal application by Mr Ruto. Lead trial lawyer Anton Steynberg argued that the “exceptional circumstances” should not be equated to one’s normal functions.

In fact, Mr Steynberg said that in future the prosecution would oppose requests by Mr Ruto to be excused to return to Nairobi to hold brief for President Kenyatta.

Mr Steynberg had said that the prosecution’s “concession should not be read as binding on us in the future” suggesting that the prosecution would not accept future similar applications by the defence unless there is an exceptional issue or an emergency.

“The prosecution notes the limited excusal requested and that the witnesses are already in The Hague. On this occasion the prosecution would not oppose the application,” Mr Steynberg said.