ICC Now Orders Uhuru To Attend Trial

cost geneva; font-size: small; line-height: 200%;”>African leaders in October resolved that all sitting heads-of-state including Kenyatta must not attend any court sessions at the ICC.

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The Presidents further warned of a possible mass withdrawal from the Rome Statute if the ICC continued politicising justice and targeting African leaders.

However, on Tuesday evening, ICC said in a statement that it had decided to review its earlier decision on Kenyatta’s physical appearance at the Hague “in light of the legal clarifications provided by the Appeals Chamber in its recent judgment on the matter.”

Trial Chamber V(b) held, by majority, Judge Eboe-Osuji dissenting, that as a general rule, Mr Kenyatta must be present at trial.

“Any future requests to be excused from attending parts of the trial will be considered on a case-by-case basis,” the statement reads in part.


The Chamber reasoned that the Appeals Judgment, delivered on 25 October 2013 in the case The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, provided important new information which justified the reconsideration.

The Appeals Chamber had concluded that a Trial Chamber enjoys discretion under article 63(1), which states that “[t]he accused shall be present during the trial”, but that such discretion was limited.

The Appeals Chamber had also ruled that absence is only permissible under exceptional circumstances, and must be limited to that which is strictly necessary.

It further held that the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis.

The Kenya government is yet to respond to the latest development.

On 18 October 2013, Trial Chamber V(b) had conditionally granted the Defence’s request to excuse Uhuru Muigai Kenyatta from continuous presence at his trial, with the exception of the following sessions: the opening and closing statements of all parties and participants, hearings when victims present their views and concerns in person, the delivery of judgment, and any other attendance ordered by the Chamber. If applicable, his presence will also be required at sentencing hearings, the delivery of sentence, the entirety of victim impact hearings, and reparation hearings.

The report comes just days as African Union (AU) prepares for the assembly of State Parties of the Rome Statute to present its position on the Kenyan ICC cases after the United Nations Security Council snubbed its deferral request.

Amina’s thoughts

Kenya Foreign Affairs Cabinet Secretary Amina Mohamed last week said the AU will push for amendment of the Rome Statutes to provide for immunity from prosecution to sitting heads of state and government when the group meets in The Hague from November 20, 2013.

“The decision by some permanent members of the UN Security Council to abstain from voting on AU request for deferral of ICC cases facing President Uhuru Kenyatta and Deputy President William Ruto was a disappointment,” she said.

The Cabinet Secretary was speaking to the press in Kuwait ahead of the 3rd Afro/Arab Summit.

She added that Kenya “will continue to engage constructively” on the ICC matter to its logical conclusion.

“We are going to the State Parties meeting at The Hague. We will present the AU proposal for amendment of the Rome statute and are optimistic of a positive consideration,” she said.

Amb Mohamed said AU was confident of garnering the support of a two-thirds majority of the states’ parties necessary to effect the amendment in the interest of peace and reconciliation in the country.

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