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.


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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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