DEPUTY President William Ruto is about to start a round of shuttle diplomacy over the ICC.
Ruto arrived back from the Hague yesterday morning but will leave today in a private jet for Democratic Republic of Congo, Congo Brazzaville, Gabon, Nigeria and Algeria.
“Apart from discussing government business he will also raise the ICC issue,” said a source familiar with the trip yesterday. Kenya has already held discussions with all East African leaders and secured promises of support for changes to the ICC system.
At President Kenyatta's inauguration at Kasarani on April 9, Ugandan president Yoweri Museveni blasted the ICC for interfering with local politics and congratulated Kenyans for electing Uhuru and Ruto.
In 2011 then Vice-President Kalonzo Musyoka travelled extensively around the world seeking support to defer the ICC cases. In the end, the Security Council declined to support any deferral.
Last week both Ruto and Attorney General Githu Muigai disowned a letter written on May 2 by Kenya’s Ambassador to the United Nations, Macharia Kamau, requesting the UN Security Council to terminate the cases against Uhuru and Ruto.
On Monday, Macharia wrote another to the current chair of the UN Security Council, Kodjo Menan, seeking audience with the members to explain his first letter.
“I hereby request as soon as possible and at your earliest opportunity for an informal interactive dialogues between myself and the members of the Security Council to further elucidate the contents of my letter and to discuss the situation in Kenya and the ICC,” he said.
Last Thursday the Security Council had a preliminary discussion of Macharia's first letter but reached no agreement. Morocco suggested that the concerns of the Kenyan delegation should be heard at the Security Council and then referred to the working group on international tribunals, if deemed necessary.
Argentina proposed that Kenya writes a letter to the Security Council asking for a meeting or an interactive dialogue. Guatemala suggested that Kenya’s request for termination should be referred to the informal working group on international tribunals.
Yesterday Ruto's status conference concluded in the Hague as his lawyer asked the ICC judges to defer the start of his case to November and to allow the case to proceed without him being present.
However the Office of the Prosecutor insisted yesterday, and on Tuesday, that it expected Ruto to be physically present in the courtroom throughout his trial.
Under a barrage of questions from Judge Chile Eboe-Osuji, prosecutor Cynthia Tai said the OTP expects the judges to issue a warrant of arrest against Deputy President William Ruto if he does not turn up for trial pleading his official commitments.
Ruto is seeking to waive his right to be present at the trial citing his new responsibilities as the deputy president of Kenya. His co-accused Joshua Sang initially made a similar request but his lawyer Katwa Kigen yesterday beat a retreat and said his client will now attend the trial.
Eboe-Osuji interrogated both the prosecution and defence over the legality and practicality of the request. “The defence is saying their client is under Article 66 (1) innocent until proven guilty. Is there any specific right that you can cite in this statute that compels the accused to be present against this right to be presumed innocent?” the judge asked.
Tai said the prosecution is simply following the Rome Statute “The requirement is a consequence of the process. We are at penultimate stage after a series of stages. And the current stage demands his presence,” Tai argued.
“We don’t believe that a trial can proceed without the accused being present. If he absconds, arrest warrant should be issued and have them brought before you, in which case the proceedings will have to stop,” she said.
Eboe-Osuji also challenged Ruto’s lawyer Karim Khan over Ruto’s responsibilities as Deputy President. He asked Khan whether Ruto was compelled to run for the office of deputy President or whether he sought the office after the ICC had started proceedings against him.
“The road in politics is a long one, if God grants it. My client was engaged in politics long before the proceedings. His current position as deputy president is part of the journey,” Khan responded.
Article 27 of the Rome Statute says it shall apply to all persons without any distinction based on official capacity. “It implies that what you are seeking should not be granted on the basis of him being the deputy President," said Eboe-Osuji.
Khan replied that he is not seeking immunity for Ruto but only asking the court to “tailor justice to the circumstances of the case".
The Office of the Public Counsel for Victims, Wilfred Nderitu, told the judges that presence in court at trial is not a right but an obligation accepted the world over.
“A criminal trial in the absence of the defendant is a concept that is unknown especially in Kenya. It spells a death knell to the process of criminal trial,” Nderitu said, adding that the victims want the trial to start as soon as possible.
Eboe-Osuji asked the prosecution why granting Ruto’s request would have an “extremely negative impact on how the court is perceived” yet there was no negative impact at the pre-trial stage where they also did not need to be present.
Prosecutor Tai insisted that the trial stage is different from the pre-trial. She said it would set a precedent in future where every official on trial will seek to be tried in absentia.
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