Supporters of Kenyan deputy president William Ruto expressed outrage this week at the decision by appeals judges at the International Criminal Court (ICC) forcing him to attend all hearings in his trial for crimes against humanity.
Following an appeal by the prosecution, the appeals chamber last week overturned an earlier decision by trial judges who had ruled that Ruto could miss large portions of his trial so as to remain in Nairobi in order to conduct the affairs of state.
Five ICC appeals judges delivered a unanimous decision on October 25 that Ruto would now only be excused from his trial under “exceptional circumstances”. (See Kenyan Deputy President Must Attend Trial. )
The trial of Ruto and his co-defendant, former broadcaster Joshua Arap Sang, began on September 10. They are charged with inciting and organising the violence that engulfed Kenya following the disputed outcome of a presidential election in December 2007.
More than 1,100 people were killed and 650,000 others were uprooted from their homes in months of political and ethnic violence. Both men face charges of murder, persecution and forcible population displacement.
President Uhuru Kenyatta faces similar charges but is to be tried separately in a different case. Trial judges have granted him, too, permission to miss large sections of proceedings in his case. But following the appeals chamber ruling in the Ruto case, prosecutors this week asked judges to reconsider the decision, making it likely that Kenyatta will have to attend all of his trial in The Hague.
Kenyatta’s trial had been scheduled to start on November 12, but will now begin on February 5, 2014, after the defence requested a delay in proceedings which the prosecution did not oppose.
Kenyatta, who is Kikuyu, and Ruto, a Kalenjin, were elected in March. Community leaders from both ethnic groups have condemned the appeals chamber ruling as an affront to the two men’s mandate to govern Kenya.
John Seii, a retired major who chairs the Kalenjin Council of Elders, said he was “outraged” by the ICC’s decision.
“Kenyan people in their wisdom democratically elected [Kenyatta] as president and [Ruto] as his deputy in a peaceful election earlier this year and as a team,” he told IWPR. “The [two] have been instrumental in achieving forgiveness, peace and reconciliation amongst communities in conflict in Kenya.”
He said the absence of the president and his deputy could jeopardise efforts to maintain calm in Kenya.
“We still maintain that the court should support the ongoing healing and reconciliation efforts in the country and allow the two leaders to be absent from the court and have them represented by their legal teams,” Seii said. “With many challenges facing the country, the two are required in the country to provide leadership in order to address some of these problems.”
“Many Kenyans previously believed the ICC would be useful to provide solutions to conflict in Kenya. It has become clearly evident that the court’s intervention is not leading towards justice for both the victims and the accused,” Seii added.
Albert Kithuga, chairman of the Kikuyu Council of Elders in the Rift Valley town of Eldoret, called on the ICC to recognise the demands placed on Ruto and Kenyatta as elected state officials.
“We urge ICC and the international community to reconsider their current fixation on frustrating the two leaders and instead embrace and support the path to meaningful reconciliation, lasting peace and harmony taken by communities,” he told IWPR.
The appeals ruling in Ruto’s case comes amid intense lobbying by the African Union and the Kenyan government to have both his and Kenyatta’s cases deferred. The United Nations Security Council is currently considering whether to suspend them for a period of one year – the maximum permissible. (For more, see Kenya Seeks Delay to ICC Trials .)
Some Kenyan political leaders also reacted angrily to the appeals ruling. Nairobi senator Mike Mbuvi told a boisterous crowd in the capital on October 26 that he was opposed to Kenyatta continuing to cooperate with the ICC, and urged young people to come out and protest.
Kenyan’s attorney general, Githu Muigai, also expressed opposition to the ICC’s decision, arguing that it was “unfair and unreasonable to compel a sitting head of state or his deputy to stand trial instead of performing his state duties”.
“It’s not in the interest of Kenya that they [two leaders] attend trial in The Hague,” Muigai said on October 28.
However, Muigai noted that Kenya would continue cooperating with the ICC “so long as the cooperation falls within the laws of Kenya and the interpretation of the [court’s] Rome Statute”.
The cabinet secretary for information, communication and technology, Fred Matiangi, predicted that the ICC decision would be counterproductive.
“We thought the decision would be favourable, to enable our leaders to be at home to discharge their constitutional and government mandates, but we are equally surprised by this decision,” Matiangi said.
The decision met with a mixed reaction from those directly affected by the violence of 2007-08.
“The appeals chamber’s ruling comes as a consolation for us, the victims, at a time when almost everyone in the country was behind the two leaders,” one woman who lost her husband in the 2007-08 bloodshed told IWPR.
Another victim said he too was satisfied with the decision.
“Unless the court stands firm and makes difficult decisions like the one against the deputy president William Ruto to attend all his trial, the victims of violence may never get justice in the long run,” the Rift Valley resident told IWPR. “All we are witnessing from our leaders is scheme after scheme to slow the wheels of justice, and I think the court should not give in to any of these demands, as they are mere manipulation.”
One victim, however, questioned the motives behind the ruling. He said he believed the prosecution was losing its case against the deputy president and the court was simply “looking to make circumstances for Mr Ruto very difficult”.
A lawyer representing victims of the 2007-08 violence in the ICC case against Kenyatta welcomed the ruling, arguing that a defendant’s absence from proceedings would undermine the justice process in The Hague.
“The victims welcome the appeals chamber’s unanimous affirmation that the presence of the accused at trial plays an important role in promoting public confidence in the administration of justice,” Fergal Gaynor said.
But Gaynor said he remained uncomfortable about the fact that the appeals judges’ decision leaves scope for defendants to be excused from proceedings under “exceptional circumstances”, since it is unclear what those might be.
“The appeals chamber left undefined what are the exceptional circumstances,” Gaynor said. “It will be up to the trial chamber, after hearing the submission from the parties, to decide in first instance whether the circumstances are genuinely exceptional.”
Meanwhile, supporters of international justice say it is imperative that the defendants comply with the terms of the court summons and with any other set by ICC judges.
“Mr Kenyatta remains obligated to appear for trial consistent with the conditions of the court summons and any decisions the judges make about his appearance,” Elizabeth Evenson, senior international justice counsel at Human Rights Watch, told IWPR. “Kenya’s decision to seek a deferral in and of itself would not amend the summons or… alter Kenya’s obligations under the Rome Statute.”
Robert Wanjala is a freelance reporter in Eldoret in Kenya’s Rift Valley region.
This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.