JUBILATION: President Uhuru Kenyatta kisses the Fifa World Cup Trophy at the Coca- Cola headquarters in Nairobi yesterday. AFP PHOTO/SIMON MAINA
ICC trial judge Chile-Eboe Osuji has said President Uhuru Kenyatta can abscond his February 5 trial without breaking any Rome Statute provision or risking any warrant of arrest.
In an opinion dissenting with Tuesday's decision reversing earlier decision allowing Uhuru to skip parts of his trial, Osuji also poked holes into the October 25 appeals chamber decision which necessitated the reversal in the first place.
The appeals chamber decision was made in respect of Deputy President William Ruto following an appeal by chief prosecutor Fatou Bensouda.
The prosecutor subsequently sought the reversal of a similar decision on skipping parts of trial which had been granted to Uhuru on October 18.
Osuji dedicated 63 pages of his 79 paged opinion to proving that an accused can abscond trial without breaking any known international criminal law or human rights law - including the Rome Statute.
He said the presiding judge in Uhuru's trial chamber, Kuniko Ozaki, should not have taken part in reversing the decision since she did not agree with it in the first place. Ozaki had dissented the October 18 decision.
Osuji judge said Ruto's Appeals chamber decision merely glossed over the question of trial in absentia yet “it is an important question that needs to be considered.”
“The discretion to conduct trial in the absence of the accused is now well recognised and accepted in international law; the discretion is also well accepted in the principal legal systems of the world that exert the most influence on the development of legal norms and processes that apply at the ICC,” he said.
The Nigerian said the Rome Statute does not preclude trial in absence explicitly or by implication and therefore it can be exercised pursuant to Article 21(b) and (c) of the Statute, through which the legal norms of the ICC can adopt international law and general principles of law recognised in national jurisdictions.
He cited many international law scholars and articles to back up his claim. Osuji said even Nuremberg Trials tried Adolf Hitler's secretary Martin Bormann in absentia.
He said the International Criminal Tribunal for Rwanda also tried Jean-Bosco Barayagwiza in his absence. Osuji argued that many states allow for trial in absentia and accused ICC of habouring “hollow pretensions” of attempting to divorce the court from the reality of the world.
“The doctrine of complementarity of the court's jurisdiction should make it inconvenient for the ICC functionaries to construe the court into an ivory tower of novel ideas, which are divorced from generally accepted norms that guide the administration of justice in the systems that enjoy the primary jurisdiction,” he said.
The judge said the question ought to be how a trial in absence of Uhuru should be conducted to meet standards of international human rights law, not whether it should happen. He said Ozaki had “no standing” to review the decision.
Osuji said common sense does not permit her to reverse a decision in which a “critical member of the deciding majority had refused to reconsider.” He said the precedent the reversal will set is a very dangerous one especially because the ICC does not have rules governing reconsideration.
“No majority decision will be safe from such practice or precedent. The move strikes at the very core of judicial independence. It is not to be encouraged,” Osuji said.
Osuji believes that rather than reverse the decision, the trial chamber should have allowed Bensouda to appeal the matter. He says in doing so, the appeals chamber would clarify many issues it left hanging in their decision. Also, the judge says there are 'appreciable differences” between Ruto and Uhuru cases.
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