The Prosecutor in the Ruto/Sang case sought to appeal the decision allowing William Ruto’s absence from parts of his trial. She applied to the Trial Chamber for leave to appeal because she felt that the Chamber made the following errors:
- The scope of the Defendant’s duty to be present at trial and whether a Trial Chamber has a discretion to excuse an accused from this duty to be present.
- By stating that the test for such an excusal was that “…In exceptional circumstances […] the
Chamber may exercise its discretion under Article 64(6)(f) of the Statute to excuse
an accused, on a case-by-case basis, from continuous presence at trial. […] The
exceptional circumstances that would make such excusal reasonable would
include situations in which an accused person has important functions of an
extraordinary dimension to perform.”
Like the Judge Carbuccia in her dissent, the Prosecutor worried that this decision could create inequality between different accused: some (like Joshua Sang) without important functions that meet the test would always have to be present whereas the more powerful accused (like Kenyatta or Ruto) would almost always be able to negotiate their absence from court owing to the functions that they perform.
The Prosecutor felt that prompt reference of the issue to the Appeals Chamber would move the case forward expeditiously. She pointed out that a similar point must be decided by the Kenyatta Trial Chamber. She also raised the question of whether, after a lengthy trial, Ruto’s absence could be used as a grounds to appeal a possible conviction on the argument that his right and duty to be present was non-derogable and could not be waived either (i) by his choice or (ii) at the court’s discretion. Thus she wants the issue settled before trial so that time and expense are not applied to proceedings that could be nullified much later over the absence question.
The Defence replied to this application by arguing that the Prosecution’s grounds for appeal were speculative, implausible, remote and/or theoretical. The Defence felt that the Prosecutor simply disagreed with the majority decision but had failed to show any appeal-able issue. According to the Defence, the Prosecutor had not shown how deciding the appeal would assist in the expeditious and fair conduct of proceedings. Further, the Prosecutor had misunderstood the test laid out by the court for ‘exceptional circumstances’. According to the Defence, the test had little or nothing to do with the executive functions of the the accused.
The Defence argued that the issue of a possible appeal against conviction does not arise because William Ruto waived his right to appeal on an issue that turned on his voluntary absence from proceedings. Finally, the Defence suggested that the Prosecutor’s argument that this issue could affect other cases before the ICC was a policy argument that could not validly be advanced to support an appeal on an issue specific to this case.
The Majority of the Trial Chamber (Judge Eboe-Osuji dissenting) agreed with the prosecutor that there were appeal-able issues in the application. The judges also agreed that the issues would significantly affect the fair and expeditious conduct of the trial or its outcome; if Ruto were convicted and appealed, the risk existed that parts or all of the trial being nullified because of his absence at certain stages. This would lead to significant delay. Furthermore, conducting the trial with this issue hanging over it would lead to greater uncertainty if there is evidence that was heard while Ruto was absent from court. Therefore, fairness required the Appeals Chamber to review the decision now, before trial gets underway.
Judge Eboe-Osuji dissented because he did not feel the issues raised significantly affected the conduct or outcome of trial in the way the prosecutor was arguing. He appeared to agree with the Defence that the arguments put forth for leave to appeal were largely hypothetical and based on many ‘ifs’, ‘mays’, and ‘possiblys’ which required speculation about what might happen in the event Ruto got convicted. He also felt that the Prosecutor was wrong when she complained that the principle of equality before the law was violated by the test requiring the accused to show ‘exceptional circumstances’ for his absence. The judge felt that the law