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.


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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa

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