ICC Prosecutor Fatou Bensouda wants Ruto barred from ICC talks

November 20, 2013

By Walter Menya for the Nation Newspaper.ICC prosecutor Fatou Bensouda has filed an urgent application asking the court to lift the excusal it gave Deputy President William Ruto to skip Thursday’s hearing.Ms Bensouda said that the excusal had been granted on the grounds that he would be in Kenya when President Uhuru Kenyatta travelled to Kuwait for the third Africa-Arab Summit.The ICC allowed the cases against Mr Kenyatta and Mr Ruto to alternate after their lawyers said the Constitution does not permit their absence from the country at the same time.However, according to Ms Bensouda, Mr Ruto may have misled the trial chamber since he is expected to lead the Kenyan delegation to the Assembly of State  Parties to The Hague Thursday.
Kenya is pushing for an amendment to the Rome Statute to stop the court from indicting sitting heads of state and government.Ms Bensouda also submitted that Mr Ruto’s absence from Kenya could be a demonstration that his and Mr Kenyatta’s absence from the country at the same time was not anchored in the Constitution.“The Prosecution requests Trial Chamber V(A) to reconsider and vacate its decision to grant the excusal of the accused, Mr William Samoei Ruto from attending his trial on 21 November 2013,” she said in her application.“The Prosecution has been informed that Ruto is set to lead the Kenyan delegation to the Assembly of States Parties’ (ASP) 12th session, which commences on 20 November 2013 in The Hague.“The prosecution notes that Ruto’s excusal request was premised on the fact that he would be constitutionally required to be present in Kenya until 21 November, due to the absence of Kenya’s President, Mr Uhuru Kenyatta during that time.”

She said that considering Mr Ruto’s scheduled presence at the talks, his rationale for an excusal was no longer valid.

“Either Kenyatta will return to Kenya before 20 November 2013, making Ruto available to appear at trial on 21 November, or alternatively Ruto’s presence in Kenya is not in fact indispensable, notwithstanding Kenyatta’s absence,” she said.

Mr Kenyatta was expected back in the country from Kuwait last night.

Ms Bensouda also asked the court to bar Mr Ruto from commenting on the Kenyan cases when he heads the Kenyan delegation to the ICC state parties meeting.

The trial chamber had in the first phase of the proceedings cautioned Mr Ruto from discussing the case against him outside the courtroom. The judges gave the warning after Mr Ruto granted a media interview while in The Hague.

Ms Bensouda said that if allowed to speak at the meeting, Mr Ruto will be commenting on cases in which he is a party. The Deputy President is facing three charges of crimes against humanity as is his co-accused, radio journalist Joshua arap Sang. President Kenyatta is facing four.

According to the notification by Kenya to the assembly of ICC state parties, Mr Ruto will be leading the Kenyan delegation to the meeting which started Wednesday.

“The ASP was requested to re-arrange the speaking schedule accordingly, indicating that Ruto intends to personally address the assembly,” said Ms Bensouda.

She also wondered why the Trial Chamber V(a) has failed to publish the reasons for excusing Mr Ruto from trial today yet the ruling was rendered on November 8.

Meanwhile, the state parties have accepted to discuss Kenya’s suggestion, which is being pushed by the Africa Union. The AU wrested the agenda from one led by the United Kingdom, which was pushing to have the amendments be done on the mode of attendance rather than immunity.

Mr John Bradshaw, the head of Communications for Kenya and Somalia at the British High Commission in Nairobi Wednesday said the UK had tabled an amendment to the ICC Rules of Procedure which would allow attendance by video conference during parts of the trial.

“The UK has tabled this amendment in a constructive and helpful spirit to address AU concerns. We encourage all parties to enter into these discussions in the same constructive spirit,” he said in a statement emailed to the Nation.

Foreign Affairs Principal Secretary Karanja Kibicho had earlier criticised the UK for its insistence on video trial, arguing that it was part of a ploy to detract from the real issues.

“Africa is at a loss as to the logic behind replacing a motion mandated by the Africa Union. The AU was categorical in its decision to exempt sitting heads of state from trial while in office.”

In what appeared to be a reply to Dr Kibicho, Mr Bradshaw said: “Some commentators and parliamentarians in Kenya have suggested that the UK’s proposed amendment on video conferencing is designed to replace or substitute other proposed amendments at the ASP.  This is not true.”

The Kenyan delegation has indicated that it will “play to the end” to see that Article 16 is changed.

But activists have opposed the move, arguing it would dent the value of the need to fight impunity. A position paper presented by a group of NGOs asked the state parties to consider the value of victims and reject the proposed amendments.

Additional reporting by Aggrey Mutambo