ICC: Ruto to attend trial pending Bensouda appeal

Deputy President William Ruto (left) confers with Kwale Governor Salim Mvuria during the Law Society of Kenya meeting at Leisure Lodge Resort August 15, 2013. Mr Ruto will now be required to attend all trial hearings at the International Criminal Court August 20, 2013. LABAN WALLOGA 

Deputy President William Ruto will now be required to attend all trial hearings at the International Criminal Court.

On Tuesday, the Appeals Chamber ruled that Mr Ruto should be present at all times during his trial pending the outcome of the Prosecutor’s appealagainst him skipping some sessions.

The trial is due to open on September 10.

ICC Prosecutor Fatou Bensouda has appealed the trial chamber decision to allow Mr Ruto to skip some sessions at The Hague based court.

"The Appeals Chamber notes the Prosecutor's concerns regarding the trial proceeding on the basis of an incorrect legal framework and the difficulties that may arise should witnesses who testified in Mr Ruto's absence be unwilling or unable to return to testify again, if the Impugned Decision were to be overturned and the trial had to restart in Mr Ruto's presence," the Appeals Chamber ruled.

"In all the circumstances of this case, the Appeals Chamber finds that the consequences of implementing the Impugned Decision prior to the issuance of the judgment on the Prosecutor's Appeal, would be difficult to correct and may be irreversible and that suspension of the Impugned Decision is warranted."

ARREST WARRANT

In June, the trial chamber allowed Mr Ruto to be absent from some hearings when his trial for crimes against humanity starts.

However, the judges gave a raft of strict conditions that he has to comply with.

The judges also declared that Mr Ruto’s new position in government would not guarantee him immunity from the actions of the court. Permission to miss some sittings could also be revoked and an arrest warrant issued should he fail to comply with the conditions.

The court said that Mr Ruto will have to be present in court during the opening and closing statements by all participants, during testimony by victims and during judgment and sentencing.

“Today, 18 June 2013, Trial Chamber V (A) of the International Criminal Court (ICC) conditionally granted, by majority, the request of William Samoei Ruto to be excused from being physically present continuously throughout the trial, scheduled to start on 10 September 2013,” said a statement from the court.

Judges Eboe-Osuji and Fremr said that their decision was meant to strike a balance between the interests of the accused, the prosecution, the victims and the witnesses.

“The Chamber has endeavoured to strike a balance that protects all the different competing concerns.”

They then set out the hearings where the Deputy President must by personally present.

“Mr Ruto must be physically present in the courtroom for the entirety of the opening statements of all parties and participants, the entirety of the closing statements of all parties and participants, when victims present their views and concerns in person, and the entirety of the delivery of judgment in the case,” they ruled.

He will further be required to attend the “entirety of the sentencing hearings (if applicable), the entirety of the sentencing (if applicable), the entirety of the victim impact hearings (if applicable), the entirety of the reparation hearings (if applicable), and any other attendance directed by the Chamber”.

However, Ms Bensouda appealed the decision.

HANDING POWERS

In her appeal, Ms Bensouda argued that neither the rules of the ICC nor the Rome Statute that established the court contemplated handing powers to a bench of judges to decide on whether an accused person can be excused from attending proceedings.

She argued that Articles 63(1), 64(1) and 64(6)(f) of the Rome Statute do not give the judges a window to excuse an accused person from attending most of the hearings.

“Article 63(1) leaves no room for a Trial Chamber to excuse an accused from attending substantially all of his trial. Contrary to the majority’s reasoning, nothing in Article 64(6)(f) alters this position,” she said.

On Tuesday, the Appeals Chamber said it "does not consider it appropriate to address the issue of whether the waiver signed by Mr Ruto would adequately safeguard proceedings in his absence, as this question forms part of the subject matter of the appeal".

"Accordingly, and without prejudice to the Appeals Chamber's eventual decision on the merits of the Prosecutor's appeal against the Impugned Decision, the Request for Suspensive Effect is granted."

Mr Ruto, President Kenyatta and former radio presenter Joshua arap Sang are facing charges of crimes against humanity arising from the 2007/8 poll violence in which 1,133 people were killed and 650,000 were displaced.