International Criminal Court Prosecutor Fatou Bensouda
wants the Trial Chamber to reverse the conditional leave it granted
Kenya President Uhuru Kenyatta in light of last Friday’s Appeal Chamber decision.
Ms Bensouda wants the judges to recall their
ruling that allowed President Kenyatta to skip portions of his trial and
align it with Friday’s ruling by the Appeals Chamber in the case
against Deputy President William Ruto.
In last week's landmark ruling, the Appeals
Chamber by a unanimous decision reversed the ruling of Trial Chamber V
that had conditionally granted Mr Ruto absence from all the sessions of
his trial.
The appellate judges said that though the absence
of the accused from trial could be permissible under exceptional
circumstances, they faulted the Trial Chamber judges of interpreting the
scope of their discretion too broadly thereby making the excusal the
rule rather than the exception.
“The Appeals Chamber concludes that the Trial
Chamber in the present case interpreted the scope of its discretion too
broadly and thereby exceeded the limits of its discretionary power,” the
five judges of the Appeals Chamber said.
“In particular, the Trial Chamber provided Mr Ruto
with what amounts to a blanket excusal before the trial had even
commenced, effectively making his absence the general rule and his
presence an exception.
"Furthermore, the Trial Chamber excused Mr Ruto
without first exploring whether there were any alternative options.
Finally, the Trial Chamber did not exercise its discretion to excuse Mr
Ruto on a case-by-case basis, at specific instances of the proceedings,
and for a duration limited to that which was strictly necessary,” the
ruling stated.
And now, Ms Bensouda wants the judges who allowed
President Kenyatta to skip parts of his trials, due to begin on November
12, to reverse it, failing which she would seek leave to appeal.
"The Office of the Prosecutor will request Trial
Chamber V(b) to reconsider its decision to conditionally excuse Mr
Kenyatta from continuous presence at his trial or, in the alternative,
to grant the OTP leave to appeal that decision," Ms Bensouda’s office
said in a brief statement.
Rome Statute
The reasoning within the Office of the Prosecutor
is that the Appeals Chamber decision rendered earlier positions taken by
the Trial Chamber moot since it was an interpretation of the Rome
Statute.
If Ms Bensouda has her way, then the move by the
African Union to lobby the UN Security Council to defer the Kenyan cases
will be the only way President Kenyatta can avoid the trial.
The Security Council is expected to consider the request in the coming days.
The judges who granted Mr Ruto conditional excusal
were the same ones who did the same for Mr Kenyatta. They are Judges
Chile Eboe-Osuji and Robert Fremr. In the Ruto case, Judge Olga
Carbuccia had dissented to the conditional excusal.
In the Kenyatta case, Judge Kuniko Ozaki had also
dissented and criticised her colleagues’ reasoning to grant the excusal
which she said went against the provisions of the Rome Statute.
“I find portions of the majority decision
reasoning to be repetitive, irrelevant to the question before the
Chamber (including the use of selective quotations from various
authorities) and/or, in some cases, incorrect,” Judge Ozaki had said in
her dissenting ruling.
