After I posted my commentary on the Appeal Chamber’s Decision reversing Ruto’s excusal, Kenyan papers reported, as I anticipated in this piece, that the ICC Prosecutor is filling appeal against Uhuru Kenyata’s excusal that the Trial Chamber granted him. This means that we will see a repeat of almost everything that happened with respect to William Ruto’s case. If the Prosecutor is granted leave to appeal, Kenyata’s excusal is likely to be suspended pending the Appeals Chamber consideration of the Prosecutor’s appeal. This means that like Ruto Kenyata, if he opts for attending the beginning of his trial on 12 November, would have to stay in the Hague throughout the trial except in recess or when it is adjourned. If Ruto’s case is anything to go by, the Appeal Chamber may hand down judgement on the appeal of the Prosecutor only in January or February 2014. Given the distinct possibility of the continuous presence of Kenyata at the Hague coinciding with that of Ruto, Kenya’s government may possibly be left, during those periods, without its leaders. Kenya is sure to escalate its pressure against ICC and another extraordinary summit of the AU now becomes a real possibility. This time around the AU is likely to adopt even far reaching decisions….



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…

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