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Prelude

Today 25 October 2012, the Appeals Chamber of the International Criminal Court handed down a decision on the appeal of the Prosecutor against the decision of the Trial Chamber excusing William Ruto from being present in all the proceedings of his trial. In its judgement, which I will explain further below, the Appeals Chamber reversed the decision of the Trial Chamber excusing Ruto from continuous presence at the trial. The implication of this judgement is that Ruto is under obligation to attend all parts of the trial. This would leave Ruto with the difficult dilemma of to attend or not to attend, with each option having serious ramifications in various ways. 

It is to be recalled that one of the developments that mobilized the African Union (AU) for convening the extra-ordinary summit held on 12 October 2012 was the suspension by the Appeals Chamber of the decision of the Trial Chamber relieving William Ruto from the obligation to attend all the proceedings of his trial following the Prosecutor’s appeal against the decision in July 2013. In the event, the AU sent a letter on 10 September 2013 to the ICC expressing its concern on that development.

Today’s decision is accordingly of particular significance for the tumultuous AU-ICC relationship. Not least of all, it is also of direct importance for the recent decision of the Trial Chamber granting Uhuru Kenyata conditional excusal from continuous presence at his trial, scheduled to commence on 12 November 2012.

Appeals Chamber judgement: Blanket excusal of Mr Ruto against Article 63 (1) of Rome Statute  

The Prosecutor challenged the decision of the Trial Chamber excusing Ruto on two grounds.

First was the argument that attendance of trial is a mandatory requirement under the Statute of the ICC and the applicable provision of the Statute (Article 63 (1)) excludes any discretion of the Trial Chamber on the issue of absence of the accused from trial. In excusing Ruto from attending substantially all of his trial, the Trial Chamber accordingly erred in law.

Second was the contention that the trial Chamber committed an error of law in applying the criterion of ‘important function’ as a ground for excusing Ruto from attending his trial (it is contrary to the requirements of equality of treatment under Article 27 of the ICC Statute) and even if it is to be held that it has foundation in the law of the ICC, it is the wrong standard as it invites a flood of excusal applications.

On the question of whether Article 63(1) of the Statute leaves any room for judicial discretion with respect to the excusal of an accused person from attending trial, the Appeals Chamber held that as a matter of rule the presence of the accused at the trial is a requirement. However, the majority of Judges of the Appeals Chamber (the majority) rejected the Prosecutor’s submission that the only exception to Article 63(1) is the removal of a disruptive accused as being unduly rigid. The majority reasoned that ‘the fact that a continuously disruptive accused person may be excused from the court room against his will supports the conclusion that an excusal may be permissible if the accused voluntarily waived his or her right to be present.’ Accordingly, the majority found that the Trial Chamber did not err in law when it held that the court has discretion with respect to Article 63 (1) and that, in exceptional circumstances, the chamber may exercise its discretion to excuse an accused person, on a case by case basis, from continuous presence at trial.  

The majority however found that the Trial Chamber did not exercise its discretion properly. On this, the majority held that the basis on which the Trial Chamber excused Mr Ruto from attending his trial was not the standard of ‘important function’. It was rather based on consideration of whether the functions of the deputy president would meet the general requirement of exceptional circumstances that the Trial Chamber articulated and seemingly accepted by the majority of the Appeals Chamber.

In finding that the Trial Chamber did not exercise its discretion properly, the majority held that the discretion of the Trial Chamber under Article 63 (1) was limited and must be exercised with caution. Following the limitations set out under Article 63(2), the majority stated that a) the absence of the accused can be allowed in exceptional circumstances and should not be a rule b) the possibility of alternative measures such as changes to the trial schedule or short adjournment must first have been explored, c) the accused must first voluntarily waive his or her right to be present d) the right of the accused must be fully ensured and e) the decision on whether to excuse the accused must be take on a case by case basis with due regard to the subject matter of the specific hearings.

The majority accordingly held that in failing to apply these strict requirements, the Trial Chamber in the present case interpreted its discretion too broadly. Most importantly, it found that the Trial Chamber granted Mr Ruto a blanket excusal effectively making his absence the general rule and his presence the exception, contrary to Article 63 (1). Accordingly, it reversed the Trial Chamber’s decision.

Implication of the judgment for Mr Ruto

As it is clear from the judgment of the majority, the door for excusing Ruto is not totally closed. Indeed, the appeals chamber did not examine the specific question of whether or not Ruto should be granted conditional and limited excusal from continuous presence at the trial. It rather limited itself to the larger question of what standards apply in granting excusal and whether in the particular case the Trial Chamber followed those standards. The majority affirmed that in strictly defined circumstances and using the set of standards articulated the Trial Chamber may excuse the accused from continuous presence at trial. 

As such as long as absence is allowed in exceptional cases and presence is the rule, Ruto may still qualify for conditional absence. Accordingly he may still loge an application to the Trial Chamber for limited and conditional excusal.

Although this makes the legal path for him open, it is admittedly a very limited one, and the excusal that he may be granted under such defined conditions is sure to fail far short of satisfying the demands arising from his constitutional obligations as a deputy head of government.

The implication of this judgment is that Ruto cannot miss any part of his trial. This now of course leaves him with the difficult choice of whether to attend or not to attend any part of the trial.

Attending all parts of his trial mean that he has to be absent from Kenya and hence from his function as deputy president of Kenya. Given that the trial is time consuming and is likely to be very protracted, he could not discharge his functions as deputy president while simultaneously attending the trial. In effect, continuous presence at the trial would amount to absence from his post as deputy president of Kenya, a ground that may put his position under serious jeopardy.

If he opts instead to secure his position as deputy president of Kenya, he may end up failing to appear in parts of his trial at some point. Such a failure, if it happens without the permission of the court, would have serious consequences. It may trigger the issuance of arrest warrant against him. Should that happen, just like Sudanese President Bashir, he would end up being a fugitive with all its implications for him in person and for Kenya in its ability to fully participate in international affairs.

Implications for Mr Kenyata’s case

The Appeals Chamber judgment reversing the decision that excused Mr Ruto is not necessarily without implications on Mr Kenyata’s case. Indeed, it has now put the decision of the Trial Chamber that granted Mr Kenyata conditional excusal from continuous presence at the trial under jeopardy. At the very least, the demand for consistency suggests that the Prosecutor is likely to appeal against Mr Kenyata’s excusal.

This judgment raises two major questions for Mr Kenyata’s excusal. First is whether the Trial Chamber, in relieving Mr Kenyata from attending parts of the trial, exercised its discretion under Article 63 of the Rome Statute properly. The other is whether the terms and conditions under which the Trial Chamber granted the excusal is in line with the standards defined in this judgment.

In fact the Trial Chamber’s decision on Mr Kenyata’s excusal suggests that he is required to attend only specifically identified parts of the trial. Outside of those specifically identified aspects of the trial, the Trial Chamber held that Mr Kenyata is excused from continuous presence in all other times during the trial. In the words of the Trial Chamber, ‘this excusal is strictly for purposes of accommodating the discharge of his duties as the President of Kenya’.

In the light of the Appeals Chamber Judgment on Mr Ruto’s excusal, one cannot help wondering if the Trial Chamber’s formulation of Mr Kenyata’s excusal does not amount to a blanket excusal effectively making his absence the general rule and his presence the exception, contrary to Article 63 (1).

What this means is that the case of Mr Kenyata’s excusal is far from concluded.

Implications for AU-ICC

No reference was made in the entire judgment to AU’s decisions or the concerns that the organization expressed on the ICC cases. In a way, this is not totally unexpected. In the letter it sent in reply to a request from the AU, the ICC indicated that AU’s request did not constitute a request legally presented within the Court’s legal framework. This made it clear that the Appeals Chamber would not take into account the broader controversy between AU and ICC for arriving at its decision on upholding or reversing the Trial Chamber’s decision excusing Mr Ruto from attending parts of the trial.

In so doing, the Trial Chamber implied that the law is the only consideration for its work and that it is not influenced by the current debates and the politics surrounding ICC.

This is in contrast to the Trial Chamber’s decision on Mr Kenyata’s excusal, which held that the view which insists that international law is capable of operating in a politically sterile environment implicates amazing naïveté as to how life really works.  In his separate concurring opinion, Judge Eboi-Osuji examined in some detail the question of the image of the court raised by the Prosecutor as one ground for opposing the granting of excusal for Mr Kenyata. According to him it is naïve for judges and prosecutor of this court to ignore the views of heads of state in important questions of the day in international affairs, but it is also possibly wrong as a matter of law, to do so. Cognizant of the legal and practical import of the political environment within which the ICC works, he suggested that the best approach is opt for a compromise between deferral (under Article 16 of the UNSC), AU’s proposition of ending prosecution of serving leaders and the demands of the Rome Statute. And according to him, ‘the best of both worlds lies in the regime of excusal’.

 

Given that the views of the AU were totally missing from the Appeals Chamber’s consideration, the judgment of the Appeals Chamber would further strain AU-ICC relationship as articulated in Judge Ebo-Osuji separate concurring opinion. This would of course reinforce the on-going campaign against ICC and would most likely strengthen the possibility of another AU summit where far reaching decisions may be taken. In other words, this judgment might have given further ammunition for those who have been campaigned against ICC including the push for withdrawal from ICC.

 

In the particular situation, this judgment would also leave Kenya and those supporting it within the framework of the AU no option but to forcefully press with the request for deferral of the cases by the UN Security Council pursuant to Article 16 of the Rome Statute. Should this succeed, its consequences for justice as rightly argued by Judge Eboi-Osuji would be serious. This is not only in terms of the delay that it may cause in rendering justice but also the higher risks of tampering or loss of evidence that it opens up.

   

Implications for Kenya

As far as Kenya is concerned the issues on excusal may have at least two implications. First, it creates uncertainty around the provision of effective leadership in the country. The cases obviously put pressure on the time, attention and resources of the leadership of the government of the country and indeed of the country itself.

Second, given the possibility of one of the two being granted excusal and the other denied, there is huge risk of the unraveling of the Uhuru-Ruto alliance. Should their alliance unravel, it would be difficult to tell how it would affect the stability of the government and indeed how it would affect political stability of Kenya broadly speaking. Indeed. In the views of Judge Eboi-Osuji ensuring that ‘the country does not slide back into violence and instability’ is a worthy consideration that needs to be taken seriously.

 

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