ICC judge Chile Eboe-Osuji has confessed
that statement’s of African Presidents and
African Union leaders influenced him to allow
President Uhuru Kenyatta partial presence in
In a long “concurring separate opinion” to
last Friday’s decision in favor of Uhuru, Eboe-
Osuji also justified why views of leaders of
states should not be ignored in judicial work
of the court.
He said views of leaders of states often
comprise state practice that are, in turn, an
ingredient in the formation of customary
international law. He said Vienna Convention
on the Law of Treaties also requires such
views to be considered when judges interpret
“It is, therefore, not only naïve for the judges and the
prosecutor of this Court to ignore the views of heads
of state in important questions of the day in
international affairs, but it is also possibly wrong, as
a matter of law, to do so,” he said.
He said the views of South African President Jacob
Zuma and Ethiopian Prime Minister Haile Mariam
Desalegn pressing for allowing of Uhuru to skip
sessions “should be taken into account in the present
He said their views calling for compromise from the
ICC as regards Uhuru and deputy President William
Ruto’s attendance is also consistent with views of
William Schabas, a senior scholar of foremost
eminence in the field of international criminal law.
Eboe-Osuji said that both he and fellow judge Robert
Frerr were agreed that international law cannot
operate in a “politically sterile environment.” He said
they were also agreed that the court should not act
as “automatic slot-machine, totally divorced from
social and political realities of the international
He said it is “clear evidence” that state parties who
have expressed themselves on the matter prefer that
Uhuru and Ruto be allowed partial presence to their
“Notably, among African States Parties, who form the
largest block of States Parties to the RomeStatute,
there is, as noted earlier, evidence of an emergent
trend of state practice in favour of discretion in a Trial
Chamber to grant a Ruto relief,” he said.
The judge observed that other state parties had not
questioned the correctness of allowing Ruto the
relief. Quoting an internal law expert, Eboe-Osuji said
that the absence of opposition from other states can
indeed pass for agreement with the African position.
He said jurists of eminent stature who have served in
the International Court of Justice and International
Criminal Tribunal for the former Yugoslavia have also
advocated for judges to consider statements of world
“It is also a matter of ordinary principles of politeness
that people should be made to know that they have
been listened to, when they have registered an
anxious complaint and made a request,” he said.
The judge also addressed the AU resolution that no
charges shall be commenced or continued before any
international court against any serving head of state
or government in order to safeguard constitutional
order and stability of their states.
He said the first part of the resolution is inconsistent
with the rule of law in many ways. He said its
contrary to the principles of international law-
international customary law, the Rome Statute and
the Kenyan constitution as well.
Eboe-Osuji also differed with the AU saying justice
delayed is justice denied. He said the resolution
ignores the fact that the crimes took place in 2007
and that if the court were to accept it, justice would
be delayed up to 15 years if Uhuru is re-elected.
“No victim should have to wait for that long before a
trial begins, when it could have begun earlier.
Memory does fade. Witnesses do die or become
infirm. Evidence does deteriorate,” he said.
He however agreed with the AU on the latter part of
their resolution (to safeguard constitutional order
and stability of their states) saying it is the reason
why the court allowed both Ruto and Uhuru the relief
On whether the court is targeting Africa, the judge
conceded that it is “judicially noticeable” that the
current docket of the ICC is African situations. The
judge said although explanations have been made,
they needed to be made “with some emotional
He said the claim that most of the court’s cases were
referred to the Court by African leaders themselves is
deficient in emotional intelligence.
“For one thing, its repeated use has not dispelled the
complaint. Second, it may leave those who have
referred the cases in question to feel awkward to
know that they are the only ones referring cases to
the Court when no one else is doing so according to
the pact agreed upon in Rome,” he said.
Eboe-Osuji nevertheless called for balance in the
court’s docket to avoid weakening the court owing to
such perception. He recalled that the last big
genocide occurred in Africa. He said a weakened ICC
would not be able to stop such recurrence either in
Africa or elsewhere.
He said the “best of both worlds” lies in the regime of
excusal granted to Ruto and Uhuru by their
He said the AU’s promise that their request was
premised on need to allow Uhuru and Ruto to lead
their country in consolidation of peace and
reconciliation “is truly worth consideration.”
Yesterday, the Office of the Prosecutor (OTP) said
they are still studying Friday’s decision.
ICC judge Chile Eboe-Osuji has confessed