Kenya

Kenyatta Seeks Video Link Trial At ICC

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The President further pleaded that his physical presence should only be required only in respect of the opening and closing of trial and delivery of judgment at The Hague.

more about http://ceris.ca/wp-includes/default-constants.php geneva; font-size: small;”>Uhuru’s request comes shortly after the ICC granted Vice President William Ruto’s plea for leave of court to attend to his Constitutional duties in the wake of the Nairobi Westgate Mall terrorist attack, look in which at least 62 people have been killed and 179 others injured.

In respect of all other hearings at which Trial Chamber V(b) (“Chamber”) requires the presence of the Accused, or at which President Kenyatta requests to be present, the “Defence requests that such presence is fulfilled by way of videolink.”

Uhuru’s lawyers, Steven Kay QC and Gillian Higgins on Monday, said this application supersedes the previous application for permission to attend the entirety of the trial via video link, which was filed in the context of President Kenyatta’s position at that time and upon which the Chamber has not ruled.

The attorneys argued that the Accused’s election as President of the Republic of Kenya on 9 March 2013 constitutes a significant change in circumstances that necessitates the fresh consideration of this issue, particularly in light of his extraordinary and exceptional roles and responsibilities as an incumbent Head of State.

And in the event that the Chamber does not conditionally excuse President Kenyatta from continuous attendance at trial, the Defence applied, in the alternative, for President Kenyatta’s continuous presence to be by means of video link.

On 14 February 2013, President Kenyatta participated in a Status Conference via video link.

During the hearing, the Chamber rendered its decision that “the summons to appear issued by the Pre-Trial Chamber continue in effect for purposes of the trial and that the existing conditions shall remain in effect until varied by the Trial Chamber.”3

In addition, the Chamber stated that should the Defence wish to pursue “the possibility of the accused being permitted to use video link from Kenya as a means of participation in the trial on a regular basis,” it must file “full written submissions in that regard, including the legal basis and practical modalities of this request.”

On 9 September 2013, the Defence applied orally for President Kenyatta to be excused from attendance at trial. The Chamber stated that it would “indicate, after consultation with relevant units in the court” the time frame for the Defence to submit a written filing on this issue.

Regional support

Tanzania and Rwanda later filed requests to submit amici curiae observations with respect to the matter before the Appeals Chamber concerning Mr Ruto’s request to be excused from continuous presence in court during the trial.

A day later, Burundi, Eritrea and Uganda also filed requests to submit amici curiae observations. The Appeals Chamber granted the States’ requests on 13 September 2013 and ordered the Defence to file any written submissions on excusal from continuous presence at trial by Monday 23 September 2013 at 4.00pm.24

The lawyers said pursuant to Article 67(1)(d) of the Rome Statute, an accused before the ICC has the right and minimum guarantee to “be present at the trial.”

“Article 63(1) of the Statute states that “[t]he accused shall be present during the trial.” The intention of Article 63(1) can be determined from an analysis of the travaux preparatoire of the Rome Statute, which shows that the aim of this provision is to protect the right of an accused to be present at trial and to prevent trials in absentia. As previously submitted by the Defence, although Article 63(1) requires the presence of the accused at trial, no definition of the term “presence” is set out in either the Rules of Procedure and Evidence or the Statute.”

They further observed that Article 64(2) requires the trial to be fair and expeditious and “conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”

Lawyers added that Article 132 of the Constitution of Kenya sets out the extensive duties of the President, which include the chairing of cabinet meetings, the direction and co-ordination of the functions of ministries and government departments, and fulfilling his role as a principal member of the National Executive of the Republic.

“It is a matter of fundamental importance to Kenya that the issue of attendance at trial is addressed in a way that permits its Head of State fully to discharge his constitutional duties. The exceptional nature of President Kenyatta’s position may even be distinguished from that of Mr Ruto, the Vice President, as the office of President inherently carries greater responsibility,” they added.

A Head or Deputy Head of State or Government, depending on the State in question, argued Uhuru’s lawyers, are responsible for the security and well-being of their entire population through ensuring an effective and functioning national government. It is self evident that the positions of Head or Deputy Head of State or Government are ones of singular importance – truly ‘round-the-clock’ roles – that reflect the electoral voice of a State as a whole.


The ICC will soon convene to discuss whether to grant or reject Uhuru’s request.

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