Kenyatta at ICC
In a statement released today via the ICC website, the trial chamber recommended that the Kenyan president must be present during the trial proceedings.
“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,” reads the statement.
President Uhuru Kenyatta is allegedly criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a) of the Rome Statute for the crimes against humanity of:
Murder (article 7(l)(a));
Deportation or forcible transfer (article 7(l)(d));
Rape (article 7(l)(g));
Persecution (articles 7(l)(h)); and
Other inhumane acts (article 7(l)(k)).
Here is the full statement from ICC.
Today, 26 November 2013, Trial Chamber V(b) of the International Criminal Court (ICC) reconsidered its previous decision excusing Uhuru Muigai Kenyatta from continuous presence at trial, 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 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 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.
Background: 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.
On 28 October 2013, the Prosecution filed a motion for reconsideration of the 18 October decision, in which it requested the Chamber to vacate the excusal decision and revert to the general rule under article 63(1).
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). His trial is scheduled to commence on 5 February 2014.