Kenya deputy president Ruto must attend all trial sittings

International Criminal Court reverses ruling that allowed deputy PM ‘blanket excusal’ to deal with Westgate aftermath

Kenya's deputy president William Ruto must attend all sessions of his trial at the International Criminal Court (ICC) for crimes against humanity, unless specifically excused, judges said yesterday – in a ruling which will increase tension between the ICC and the African Union.

The decision by the ICC appeals judges reversed an earlier ruling which would have allowed Mr Ruto to remain absent for large parts of the trial, to deal with the aftermath of the attack by Islamist militants on the Westgate shopping centre in Nairobi, in which 67 people were killed last month.

The judges were critical of the earlier decision to grant the deputy president what they called a “blanket excusal” before the trial had even started. Instead, they said, the court should be in a position to authorise or refuse each individual request by Mr Ruto.

“The absence of the accused can only take place in exceptional circumstances and must not become the rule,” said ICC president Judge Sang-Hyun Song, in a ruling which could also have implications for the trial of Kenyan president, Uhuru Kenyatta, due to open next month.


Both Mr Ruto and Mr Kenyatta are charged with orchestrating a wave of ethnic violence following the disputed 2007 general election in which an estimated 1,200 people were killed.

A meeting of the African Union (AU) in Addis Ababa earlier this month urged Mr Kenyatta to boycott the court on the basis that it was disproportionately targeting African leaders, a claim the ICC denies. The AU subsequently asked the UN Security Council to defer his trial for a year.

However, at the end of last week, that stand-off – which had the potential to lead to an all-out split – was defused when the court gave Mr Kenyatta blanket leave to be excused from most of his trial apart from the opening, the verdict and certain other key elements.

That “compromise”, however, is now in doubt. The prosecutor, Fatou Bensouda, has not yet appealed against Mr Kenyatta’s “excusal” – but after yesterday’s decision in the Ruto case, any appeal she lodges must be more likely to succeed.

"Today's unanimous decision . . . answers the question of whether an accused can be excused from almost all of his trial on the basis of official capacity, and the answer to that question is no," said Fergal Gaynor, the Irish lawyer who will represent the victims at the trial of Mr Kenyatta. "The appeals chamber has set down the ground rules which will apply to any accused person who wishes to be absent from trial, including Mr Kenyatta," he told The Irish Times.

Mr Kenyatta is scheduled to become the first sitting president to face charges at the ICC. The difficulty now facing the court is that a successful appeal by the prosecution against the Kenyan president’s “excusal” could make Kenya less likely to co-operate with the court – and perhaps even lead to a boycott.

In one indicative reaction last night, Aden Duale, the majority leader in Kenya’s parliament, said he would table a bill next week to facilitate Kenya’s withdrawal from the ICC.

Peter Cluskey

Peter Cluskey

Peter Cluskey is a journalist and broadcaster based in The Hague, where he covers Dutch news and politics plus the work of organisations such as the International Criminal Court