“Mr. Kenyatta is excused from continuous presence at other times during the trial. This excusal is strictly for purposes of accommodating the discharge of his duties as the President of Kenya”. With these words the ICC trial Chamber in the case The Prosecutor v Uhuru Muigai Kenyatta made one of the most significant decisions regarding the trial of senior state officers. The court was faced with an unprecedented situation: the leader of a country is, for the first time, due to stand trial before an international tribunal on charges of having committed war crimes. In anticipation of this trial, Kenyatta filed an application seeking his non attendance in some or all of the hearing sessions. In lieu of this, Kenyatta sought that his attendance in court through video link be taken as proper attendance. The main grounds for the application were simply that his high office of president required his presence within the country’s borders and he would not be able to discharge his constitutional duties while in court at the Hague. The prosecution however objected to this application on the grounds that the Rome Statute does not offer any special treatment to any accused person, irrespective of their social status. Further, that Article 63(1) of the Rome Statute made it mandatory for all the accused persons to be present during the trial. The trial court’s majority decision however held that the court had the discretion to allow the trial to proceed in the absence of the accused person and proceeded to exempt Kenyatta’s personal presence from all but a few of the sessions during his trial[1].

This decision however can be criticized on certain important points. First, it is not clear how the court was able to allocate itself the power to exercise its discretion where the Rome Statute did not confer such discretion to it. Indeed, a plain reading of Article 63(1) will reveal its mandatory and unequivocal provisions[2]. Perhaps this is the bigger problem with the decision. The decision will, in turn, bring into doubt other mandatory provisions of the Statute. The rules of legal interpretation require the courts to give words their ordinary interpretation where they are unequivocal. That is what the court should have done.

Secondly, the court failed to consider that, although it was impractical for Kenyatta to fulfill his constitutional duties while he was at the Hague, the Kenyan Deputy President’s trial was not being heard simultaneously with that of the President. This means that the Deputy President (who is also on trial at the ICC)[3] would be available to take over most of the Presidential functions in Kenyatta’s absence. Indeed the Kenyan constitution envisages such a situation when it provides that the Deputy President “shall deputise for the President in the execution of the President’s functions”[4]. The constitution further provides that “when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President”[5]. Thus the presidency, with the personal presence of the Deputy President in Kenya, would still be able to fulfill its obligations to the country. Further, there would be no crisis as alluded to by some[6].

Third, the court failed to consider the other option open whenever a leader cannot fulfill his public obligations due to personal concerns: resignation. Though admittedly a harsh and severe option it is a feasible option in such circumstances. Kenyatta, as it has often been repeated, successfully ran for election in the full knowledge that he had a pending court case at the ICC. Thus, it seems, it should have been him and not the court, to bend over backwards to accommodate the court.

Fourth, the court’s decision would always be seen as yielding to the hardline position of the African nations. This will portray it as a political institution that is guided by the day to day political events rather than the hard provisions of the law where it ought to hide’. Such concern with its image, especially in the eyes of the African states, rather than the hard provisions of the law seem to have been inferred by the concurring separate opinion of Judge Chile Eboe-Osuji[7]. The judge states, for example, that “failure to grant the relief will have a negative impact on the image of the Court”[8]. The judge further stated that “It is, therefore, not only naïve for the judges and the prosecutor of this Court to ignore the views of heads of state in important questions of the day in intemational affairs, but it is also possibly wrong, as a matter of law, to do so.”[9] This creates the question of what the Assembly of state Parties is for, if not to consider such political questions with regard to the Statute. With such an attitude, one wonders what the court would do if faced with a real political hot potato such as the trial of a citizen of a permanent member of the Security Council.

Lastly, the court has set itself up to a potentially embarrassing situation. Mr Ruto had also similarly been allowed to be absent from trial before the hearing of his case started[10]. However, the Office of the Prosecution appealed this decision and the Appellate Chamber suspended the exemption pending a final decision of the Appellate chamber. Suppose the Office of Prosecution does not similarly appeal the Kenyatta decision, yet the Appellate Chamber in Ruto’s case finds that it is mandatory for all the accused persons to attend their trial. Will this not leave the Kenyatta trial court in a difficult legal position[11].

However, having said that it is important to state that I agree with the final decision of the court. My view is simply that although Article 63(1) requires the accused to be present during the trial it does not ipso facto require his personal presence in court. Photos of the Deputy President of Kenya sitting idly in the court while his lawyers are busy and furiously scribbling on their legal pads is enough to question whether he actually needs to be personally present. I think it needs no gainsaying that the presence of the accused person can be registered by sending an advocate to represent his interests. This Article, I believe, was put there to protect the accused person from a trial in absentia. However, in a case, such as this, where the accused person explicitly gives up his right to be present in person but participates in the trial through an agent, the case should be able to proceed. The court should “satisfy itself that the accused’s decision not to be present at trial is made voluntarily, knowingly and unequivocally”[12]. This interpretation is important as it would differentiate this special case from that of Sudan’s President who has not yet acknowledged the court’s jurisdiction over his case. Whereas the integrity of a judicial process is compromised by the absence of the accused person in a case where s/he does not send any representation, it is left intact if the accused person is represented at the trial. Further, it will remove any accusations of discrimination against ordinary citizens who also have pending business that is compromised by their personal attendance in court. Since the provision is for the protection of the accused person s/he should be able to take or leave it. Any other interpretation, in my view, does not make sense.

Written by: Ronald Rogo