ICC prosecutor Fatou Bensouda has said she is yet to
decide whether to appeal the ruling that
conditionally excused President Kenyatta from
attending all the sittings of his trial in The Hague.
Her office on Monday said they were studying the
majority ruling by judges Chile Eboe-Osuji and
Robert Fremr, as well as the dissenting opinion of
Presiding Judge Kuniko Ozaki before making a
Trial Chamber V(b) excused the suspect from being
present throughout his trial.
However, the judges said that Mr Kenyatta would
have to be present in court during 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
“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 ruling
read. Judge Ozaki gave a dissenting opinion,
criticising the majority ruling of going against the
provisions of the Rome Statute.
“I find portions of the Majority decision reasoning to
be repetitive, irrelevant to the question before the
Chamber (including the use of selective quotations
from various authorities) and/or, in some cases,
incorrect,” Judge Ozaki said in her dissent.
But on Monday, Ms Bensouda’s office would not state
if and when they planned to seek leave to appeal.
“The Office of the Prosecutor is still studying the
decision,” Ms Bensouda’s office said.
The prosecutor had appealed the earlier similar
ruling that excused Deputy President William Ruto
from continuous attendance. She also obtained the
suspension of the ruling in the Ruto case, which
ironically, was also granted by judges Osuji and
The appeals chamber is yet to make its ruling on
whether to uphold the trial chamber’s ruling.
The trial of Mr Kenyatta is scheduled to begin on
November 12.

Bensouda is facing a
dilemma over whether to appeal Friday’s
decision granting President Uhuru Kenyatta
the chance to skip most sessions of his trial.
Bensouda will have to make the tough
decision this morning against the background
of strained relationship between the court
and the African Union (AU) over the Uhuru
Since she appealed a similar decision in favor
of deputy President William Ruto, she may be
tempted by this precedent to do the same for
Uhuru. But If she does this, the AU will only
strengthen their resolve to severe ties with the court.
If she opts not to appeal, she will have no respite
either. She will appear to have given in to political
pressure of the AU. She will also appear to be playing
double standards on Ruto and Uhuru who were both
elected on one presidential ticket on March 4.
“She has not indicated whether or not she will appeal
the decision. As you know, the decision came out late
on Friday,” ICC Kenyan outreach coordinator Mariah
Kamara said yesterday.
Ruto’s application was made on April 17 and decided
on June 18, two months later. Uhuru’s one was
however quick. He applied on September 23 and it
was decided on October 18, slightly less than a
Bensouda not only appealed the Ruto decision, she
also successfully applied for the decision to be
suspended until the appeal is determined. This is
what has locked Ruto in the Hague for his trial which
begun last month.
Just like Uhuru’s decision on Friday, Ruto’s allowed
him to attend only parts of his trial and “any other
time he’s required by the chamber.”
Bensouda’s objection was largely premised on Article
27 of the Rome Statute which make official capacities
of accused irrelevant at the ICC.
She also argued under Article 63 which says that
“the accused shall be present during the trial.”
Meanwhile, the extradition proceedings of wanted
journalist Walter Barasa took a new twist yesterday
after the ICC prosecution insisted he cannot be tried
in Kenya over witness interference. They said he
must be surrendered to the Hague based court.
A statement from the Office of the Prosecutor (OTP)
said the principle of complementarity under which
Kenyan courts can try same people same crimes as
the ICC does not apply in Barasa’s case.
The OTP said they had done their job and carried out
investigations under Article 70 of the Rome statute.
They also said the warrant issued against Barasa was
at their behest and request.
Barasa is wanted at the Hague to answer to
allegations of witness tampering leveled against him
by prosecutor Fatou Bensouda. The judicial process
of his extradition to the Hague is underway.
“Under the Rome System, the principle of
complementarity does not apply to proceedings
under Article 70 (as per Rule 163 and Rule 165).
Article 70(4) and Rule 162 makes clear that the
Court may ask a State Party to prosecute, but it is the
ICC’s discretion because it has primacy over Article
70 offences,” the statement said.
It said Kenya “must cooperate fully and effectively
with the Court” in the execution of the warrant as
part of its obligations under the Rome statute.

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