Kenya makes headway on ICC trial attendance

Monday, November 25th 2013

REPORTER Kenya has secured a compromise to ensure her leaders do not have to be present during their trial at the International Criminal Court in The Hague. But the proposal to ensure that a sitting president can only be tried after serving the presidential term will be deferred to a special Assembly of State Parties in February. Reports indicate that Guatemala and Greece yesterday made a formal presentation asking for the amendment of Article 134 of the Rules of Procedures, which touches on motions relating to the trial proceedings to waive the requirement for accused to be present. Kenya has supported the wording of the proposed amendment that is also backed by Japan and South Africa.

It states: “The Trial Chamber shall rule that an accused, subject to a summons to appear, who is mandated to fulfill important and extraordinary public duties, shall be represented by counsel during the trial, provided that a notice in writing has been filed with the Chamber explicitly waiving his or her right to be present during the trial. The Trial Chamber shall satisfy itself that the right of the accused will be fully ensured in his or her absence and the absence of the accused shall not prejudice the efficient administration of justice.” Kenyan officials welcomed Guatemala’s position, saying it would meet the persistent position argued by Kenya that President Uhuru Kenyatta and Deputy President William Ruto cannot spend months attending trial at the ICC when they have an obligation to govern Kenya.

 Guatemala and Japan reportedly argued that their position did not give blanket coverage that would lead to impunity. Kenya welcomed the proposal because its leaders, in the current cases, would not be expected to follow proceedings via video-link throughout. But the AU proposal to shield sitting presidents from prosecution is likely to be dealt with at a special Assembly of State Parties in late February. Kenya is pressing for the special summit to be convened by UN Secretary General Bank Ki-Moon in the time stipulated. 

During the next three days, Kenya will argue that it is not running away from justice or trial, but is keen to see that fairness is a guiding principle. Attorney General Githu Muigai, the leader of Kenya’s delegation, said: “We are making headway on the key issues of interest to Kenya at this meeting. There is a consensus that some of the rules of procedure must change because they are not practical at the moment.

“The formal meetings and negotiations have only just started and we envisage a result in two or three days. All the talk about Kenya being on the back foot on this or that is rubbish because you cannot attain a position such as that before the meetings themselves even begin.”