Recent Court Documents in the 2 ICC Kenya Cases 10 October 2013

The Prosecutor filed a document setting out the facts and circumstances justifying a legal re-characterisation of William Ruto’s criminal responsibility.

The Ruto/Sang Trial Chamber directed the parties to give their views on the impact on the case of the Kenyan Parliament’s motion to withdraw from the ICC- particularly with respect to in-court protective measures for witnesses. The Prosecutor, Defence and Common Legal Representative all filed replies.

Nigeria and Ethiopia also joined the bandwagon of African states seeking to enter the appeal proceedings in the Ruto/Sang case. The appeal concerns the decision permitting Ruto to be absent from large parts of his trial. The Appeals Chamber directed the Prosecutor and the Defence to give views on the Nigerian and Ethiopian applications. The Prosecutor gave her response, asking for the requests to be rejected. The defence asked the Appeals Chamber to accept the states’ requests.

After being allowed to give their views, the other five East African countries- Burundi, Rwanda, Uganda, Tanzania and Eritrea- filed joint amicus curiae observations. The Prosecutor replied, asking the court to dismiss the observations.

In the wake of the Westgate Mall massacre, the Ruto defence asked the Appeals Chamber to review its order granting suspensive effect to the Trial Chamber decision on Ruto’s presence. The suspensive order meant that Ruto had to be present throughout his trial until the appeal was heard and determined. The defence argued that as Deputy President the mandate for internal security fell under his docket, necessitating his presence in Kenya to deal with the terrorist attacks.

The Appeals Chamber rejected the request.

Developments in the Ruto Absence Decision

The Ruto Defence replied to the Prosecutor’s appeal against the Trial Chamber decision allowing William Ruto’s absence from parts of his trial. They argued that the Prosecutor took an incorrect and unnecessarily rigid interpretation of the statute. They also argued that the appeal should not have suspensive effect (freezing the enforcement of the Trial Chamber’s decision until the appeal is heard and determined) because the Prosecutor has not adequately justified her request. The Defence felt that the appeal could be heard quickly enough so as not to jeopardise proceeding. They further pointed to Ruto’s waiver to bolster their argument that suspensive effect is unnecessary.

The Ruto Defence maintained that the majority of the Trial Chamber took the correct interpretation of the Rome Statute according to its object and purpose, whereas the Prosecutor sought a narrow, literal interpretation that isolates each provision of the law. They also wanted the prosecutor’s appeal dismissed on the basis that she exaggerated and  misconstrued the court’s decision, and failed to show any error of law in the judges reasoning.

The Defence also disagreed that Ruto was given preferential treatment due to his position as Deputy President. They argued that the test developed by the Trial Chamber for permitting the absence of an accused revolves around ‘exceptional circumstances’ and thus, although the threshold is high, a number of situations would meet this test, including where a child of an accused was seriously ill. The defence stressed that the test would have to be determined on a case by case basis and that a ‘margin of deference’ should be given to Trial Chambers to ensure a fair trial through such procedural decisions.

The Defence also felt- like Judge Eboe-Osuji, who dissented from the decision granting leave to appeal- that part of the Prosecutor’s argument was largely speculative as to what might happen in the future if the Ruto’s absence created a precedent for other accused.

As a result, the Ruto Defence wanted the Appeals Chamber to dismiss the appeal, dismiss the request for suspensive affect and affirm the decision of the trial chamber. They also asked that the appeal be granted an oral hearing so that the parties can argue their case in court before the Judges of Appeal.

The Appeals Chamber came to a preliminary decision on the matter of suspensive effect and granted the Prosecutor’s request.  The Appeals judges agreed with the prosecutor that given the short time before trial starts and the fact that the Decision might possibly be overturned, the risk that witnesses who testify in Ruto’s absence may be unwilling to do so again later on means that suspensive effect should be granted. If Ruto were to miss hearings, only for the appeal to overturn the original decision, then consequences of having to re-start the case or re-hear crucial evidence would be difficult to correct and may be irreversible if witnesses are subsequently unavailable.

Thus, Ruto would have to be present for trial proceedings while the appeal is heard. Only if the Appeals Chamber uphold the Trial Chamber decision can he begin to absent himself from those hearings which the court permitted him to miss. The preliminary decision also avoided the matter of Ruto’s waiver, holding that this must await hearing of the merits of the appeal, where the Appeals Chamber can properly assess the status and lawfulness of the waiver.

The Prosecutor’s Appeal Against Ruto’s Absence

The Prosecutor asked the Appeals Chamber to reverse the Trial Chamber’s decision to allow William Ruto to miss much of his trial’s proceedings. In the appeal , she vigorously disagreed with the Decision, arguing that the Trial Chamber ignored clear and binding law in the Rome Statute and substituting this with its own discretion to decide upon the presence or absence of an accused should.            

According to the Prosecutor, the words ‘the accused shall be present at during the trial’ were not ambiguous and should have been given their ordinary meaning. The only exception to this ‘presence’ rule was if the accused was disruptive during the trial and only for such a time as the disruptive behaviour continues. The Prosecutor noted that Ruto could have waived his right to be present at the confirmation stage, but once trial starts, he must be at the ICC Courtroom. Reading the Statute at a whole and sifting through its drafting history, the Prosecutor concluded that the intention of the drafters was that the Accused must be present at trial. The fact that presence at trial was both a right and a duty under the statute did not give the Trial Chamber discretion to waive the duty where the Statute was clear that the accused had to be present.

 

The Prosecutor also disagreed with the Trial Chamber’s claim that the duty to be present attached solely to the accused and not Trial Chamber, allowing the judges discretion over ensuring the accused’s presence. The presence of the accused, according to the OTP, was a prerequisite of trial, and thus bound all trial participants to ensure this presence, even if the accused bore the brunt of the duty.

 

Fundamentally, the Prosecutor was unhappy with what she saw as an attempt by a trial chamber to impose its policy preferences over the intentions of the State Parties who crafted and ratified the Rome Statute. This is more so because the Trial Chamber had used sources of law outside of the Rome Statute framework, when the answers, according to the Prosecutor, were clearly to be found in the drafting history, a contextual reading of Article 63 and the case law of the court.

 

Finally, the Prosecutor challenged the ‘exceptional circumstances’ test that the Trial Chamber used to justify excusing Ruto from attending much of his trial, arguing that this was not supported by the law. She agreed with the dissenting trial judge, Olga Carbuccia, that such a test violated the principle that all accused should receive equal treatment; under the test, Ruto’s functions as a Vice President got him a broad waiver not available to accused like Joshua Sang. She also argued that such a test would open the floodgates for litigants to try to justify their absence from trial on the basis of their ‘exceptional circumstances’ e.g. a minister who was the only one constitutionally able to perform the duties of her office.

 

Because the trial is due to begin shortly, the Prosecutor asked the Appeals Chamber to suspend the Trial Chamber’s decision until the appeal is decided. This will ensure that the trial does not run into problems if Ruto has been absent from proceedings, only to be told that his presence was a prerequisite for a fair trial. This could lead to the trial having to re-start with Ruto’s full presence. As such, the Prosecutor feels it would be better for Ruto to be continuously present in court until the Appellate judges decide whether or not his absence from long periods is lawful.