Situation: The Republic of Kenya
Case: The Prosecutor v. Uhuru Muigai Kenyatta
Today, 18 October 2013, Trial Chamber V(b) of the International Criminal Court (ICC) issued its decision conditionally granting, the request to excuse Uhuru Muigai Kenyatta from continuous presence at his trial, scheduled to start on 12 November 2013. The decision was adopted by majority, Presiding Judge Kuniko Ozaki dissenting. The Majority however required Mr Kenyatta’s physical presence for the entirety 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 judgement in his case and any other attendance ordered by the Chamber. If applicable, Mr Kenyatta is also required to be present during sentencing hearings, the delivery of sentencing, the entirety of victim impact hearings, as well as reparation hearings.
The Majority asserted that violations of any conditions of Mr Kenyatta’s excusal may result in revocation of the partially granted request, and/or the issuance of an arrest warrant, where appropriate.
The Majority reiterated, in a similar vein to Trial Chamber V(A)’s decision of 18 June 2013, which granted Mr Ruto a similar relief, that Mr Kenyatta’s excusal is strictly granted to accommodate the demanding functions of his office as President of Kenya, and not merely to gratify the dignity of his own occupation of that office.
The Majority also stressed that granting such an exception is motivated in part by not only the need to ensure the fairness and expeditiousness of the trial in full respect to the rights of Mr Kenyatta as an accused, but also, the need for due regard for the protection of victims and witnesses.
Judge Chile Eboe-Osuji appended a separate concurring opinion, and Presiding Judge Kuniko Ozaki appended a dissenting opinion.
Mr Kenyatta is charged, as an indirect co-perpetrator, with five counts of crimes against humanity consisting of murder, deportation or forcible transfer, rape, persecution and other inhumane acts allegedly committed during the post-election violence in Kenya in 2007-2008. Charges were confirmed on 23 January 2012, and the case was committed to trial before Trial Chamber V(b).
In the context of the Kenyan situation, two other cases are currently before the ICC: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, and The Prosecutor v. Walter Osapiri Barasa.
On 18 June 2013, Trial Chamber V(a) had, by majority, granted Mr Ruto a conditional excusal from continuous presence at his trial. However, on 20 August 2013, the Appeals Chamber suspended the implementation of this decision, pending a final determination of the matter. The Appeals Chamber will issue its decision in due course.
The International Criminal Court is an independent, permanent court that tries persons accused of the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
Decision on Defence Request for Conditional Excusal from Continuous Presence at Trial (including Partially Dissenting Opinion of Judge Ozaki and Concurring Separate Opinion of Judge Eboe-Osuji)
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