Kenya secures excusal of Uhuru, Ruto from trial

Wednesday, November 27th 2013   By ALEX NDEGWA Kenya: 
After a week of intense lobbying and diplomatic standoffs, Kenya has secured a review of ICC rules to enable her leaders to be exempted from attending trials in The Hague. Last night, the Assembly of State Parties adopted by consensus an amendment whose effect is to allow President Uhuru Kenyatta and his deputy William Ruto to be represented during trial by their lawyers upon application to the court. It was a major victory coming a day after International Criminal Court judges had overturned an earlier ruling to excuse President Kenyatta and ordered he should be present at all sessions of his trial. Kenya also secured a concession on a proposal on recorded testimony for absent witnesses after dramatic talks that nearly scuttled the bid to exempt her leaders from attendance of ICC trials.

Uhuru and Ruto were banking on the changes to the ICC Rules of Procedure and Evidence to be excused from physical presence in The Hague courtroom. After ICC judges ruled that the Kenyan leaders must be present at trial, Kenya’s hopes turned to the proposal designed to waive the requirement for accused to be present in the courtroom. The amendment targets Article 134 of the Rules of Procedure and Evidence on motions relating to the trial proceedings to accommodate representation by lawyer during trial. But the Kenyan delegation’s opposition to the proposal that recorded testimony can be introduced instead of hearing the witness in person at the ICC nearly scuttled the proposal to waive physical presence of the accused in court. Though the proposal for prior recorded testimony from either a dead witness or one who cites fear of reprisal to avoid testifying in court alarmed the Kenyan delegation, other delegates stood their ground. Some western delegates reportedly warned that if Kenya insisted on the dropping of the amendment to Rule 68, then they would shoot down the proposal to excuse the accused from court and to follow proceedings via video link. African Union delegates also reportedly weren’t persuaded that the amendment that had been worked on for one year without Kenya protesting should suddenly be dropped. One delegate warned the Kenyan delegation of the grave consequences of fighting the proposal on recorded testimony. “The embarrassment is all yours,” a representative of a western nation that abstained in the vote at the UN Security Council that sunk Kenya’s request for deferral of ICC cases reportedly cautioned. Change tack Consequently, the Kenyan team changed tack and lobbied for an assurance that the amendment would not apply to the ongoing Kenyan cases. Foreign Affairs Cabinet Secretary Amina Mohammed alluded to the progress. “I am happy that we have achieved what we wanted to achieve. We wanted the President and his deputy to be excused from trial and we have achieved that through the amendment to Rule 134,” Mohammed said in The Hague. She added: “We were opposed to the use of testimony of absent witnesses and we have achieved that through introduction of a caveat to Rule 68.” The Cabinet Secretary said there was consensus in passing the two amendments in the Working Group and she was confident they would be adopted by the plenary. “It has never been the practice to re-open a language agreed at the Working Group level,” Mohammed said. “Plenary is now a matter of formality.” The concession Kenya secured is that the amendment “shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted with the understanding that the Rule as amended is without prejudice to Article 67 of the Rome Statute related to the rights of the accused.” The initial amendment to Rule 68 seeks to increase instances in which prior recorded testimony can be introduced in the absence of the witness, including where a witness is dead or unavailable to testify. Also where the failure of the person to attend or to give evidence has been materially influenced by improper interference, including threats, intimidation or coercion. The Kenyan delegation read mischief in the proposal, pointing out that ICC prosecutor Fatou Bensouda seems to have laid its basis. Bensouda has repeatedly said her prosecution of the Kenyan cases is frustrated by bribery, intimidation and execution of potential witnesses.

Kenya secures excusal of Uhuru, Ruto from trial Updated Wednesday, November 27th 2013 at 22:12 GMT +3 The International Criminal Court. By ALEX NDEGWA Kenya: After a week of intense lobbying and diplomatic standoffs, Kenya has secured a review of ICC rules to enable her leaders to be exempted from attending trials in The Hague. Last night, the Assembly of State Parties adopted by consensus an amendment whose effect is to allow President Uhuru Kenyatta and his deputy William Ruto to be represented during trial by their lawyers upon application to the court. It was a major victory coming a day after International Criminal Court judges had overturned an earlier ruling to excuse President Kenyatta and ordered he should be present at all sessions of his trial. Kenya also secured a concession on a proposal on recorded testimony for absent witnesses after dramatic talks that nearly scuttled the bid to exempt her leaders from attendance of ICC trials. Uhuru and Ruto were banking on the changes to the ICC Rules of Procedure and Evidence to be excused from physical presence in The Hague courtroom. After ICC judges ruled that the Kenyan leaders must be present at trial, Kenya’s hopes turned to the proposal designed to waive the requirement for accused to be present in the courtroom. The amendment targets Article 134 of the Rules of Procedure and Evidence on motions relating to the trial proceedings to accommodate representation by lawyer during trial. But the Kenyan delegation’s opposition to the proposal that recorded testimony can be introduced instead of hearing the witness in person at the ICC nearly scuttled the proposal to waive physical presence of the accused in court. Though the proposal for prior recorded testimony from either a dead witness or one who cites fear of reprisal to avoid testifying in court alarmed the Kenyan delegation, other delegates stood their ground. Some western delegates reportedly warned that if Kenya insisted on the dropping of the amendment to Rule 68, then they would shoot down the proposal to excuse the accused from court and to follow proceedings via video link. African Union delegates also reportedly weren’t persuaded that the amendment that had been worked on for one year without Kenya protesting should suddenly be dropped. One delegate warned the Kenyan delegation of the grave consequences of fighting the proposal on recorded testimony. “The embarrassment is all yours,” a representative of a western nation that abstained in the vote at the UN Security Council that sunk Kenya’s request for deferral of ICC cases reportedly cautioned. Change tack
Read more at: http://www.standardmedia.co.ke/?articleID=2000098838&story_title=kenya-secures-excusal-of-uhuru-ruto-from-trial