Trial Chamber 5(a) has held that Ruto is excused from attending most court sittings during his trial. The majority (one judge dissented) emphasised that this decision was an exception to the general rule that the accused be continuously present at trial. The court demanded that he deposit a waiver of his right to be present (which he later did). This conditional excusal is further restricted by requirements for Ruto to be in court for:-
- All opening statements in their entirety
- All closing statements in their entirety
- When victims present their views and concerns in person
- The entirety of judgement delivery
- The entirety of any sentencing, victim impact or reparation hearings
- Any other attendance the Court directs
How did the majority reason out their judgement? The judges read statute as a whole, looked at international law and drew inspiration from jurisprudence of various states to come to their conclusions. They agreed with Ruto that presence at one’s trial was a right under the ICC statute, and this right could be waived. But they also held that the right was attached to an accused’s duty to appear, a duty which the court could exceptionally waive at it’s discretion. This discretion could only be applied on a case by case basis having regard to what is ‘fair, just and reasonable’. This, the majority felt, was consistent with the principle of judicial control of proceedings. The dissenting judge felt there was no way in which the statutory provision (Article 63(1)) could be read as containing discretion as to the presence of the accused.
Interestingly, this discretion cuts both ways. It both allows the judges to waive the duty to appear and at the same time allows the judges to decide to proceed with the trial if the accused (who is not in custody) decides to abscond after promising to appear. The judges, however, made it clear that this did not apply to certain other accused who do not submit to the jurisdiction of the court and are not nationals of ICC state parties. Such accused could not be tried in their absence.
In this way, the judges tried to deal with the concerns that the accused Ruto might through wilful absence use his position as Deputy President to delay or frustrate the conduct of his trial, knowing there would be no power within Kenya to forcibly deliver him to the Hague (or wherever the court may conduct sittings in East Africa).
The test the judges set forth to determine whether to excuse the accused from continuous presence was whether there were ‘exceptional circumstances’ based upon ‘important functions’ of an ‘extraordinary dimension’ that the accused had to perform. In this case, they felt that Ruto satisfied this test as Deputy President.
This functional test is emphasised by the court several times; clearly the judges wanted to avoid the accusation made by the Legal Representative for Victims that allowing Ruto the waiver would violate the Rome Statute by showing undue favour to Ruto by virtue of his status as Deputy Head of State. The majority was at pains to point out that it was the ‘important’ and ‘demanding’ functions that he performed that informed their decisions, not ‘merely the gratification of the dignity of his own occupation of the office’.
The Judgement is, in my opinion a novel route for the ICC. In one stroke, the judges both spell out the right and duty to be present at trial, while also trying to ensure that the trials will proceed unimpeded, irrespective of the accused’s willingness to be present. There is, however, the troubling prospect of accused persons getting away with chutspah (loosely described as slaying one’s parents, then pleading orphanhood in mitigation). The court argued that there was nothing wrong with an accused (who’s not in custody) running for political office while awaiting trial so there was no wrong-doing that would create the conditions for chutspah. It’s still tough to understand why an accused (Ruto) who knew he was awaiting trial before the election and was warned that holding the post of Deputy President would affect his trial, his ability to perform his public duties, or both, could then argue after the election that the demands of being Deputy President are too great for him to be continuously present at trial. This could send a worrying message that confirms to alleged international criminals that if you face an ICC trial, a position near the top of the pyramid of power is the best spot from which to strike bargains with the court. This suspicion is, however, tempered by the court’s comments that the national majority [who elect an accused] cannot use democracy to avoid an inquiry into international crimes committed against a minority.
I may be wrong, but I read that paragraph of the decision as a subtle criticism of certain politicians (and at least one senior Kenyan Diplomat) who have been crowing that the legitimacy of the ICC trials ended with the announcement of the March 4 election results.
Ironically, it was Sang who brought up the original issue of allowing the accused to participate at trial via video link without being physically present. His counsel then about-turned and stated that Sang wanted to be present throughout his trial. So the person who raised the issue of his right to be absent will possibly be the only one of the three (Kenyatta’s application is still pending) who doesn’t benefit.