, NAIROBI, Kenya, May 15 – Judges presiding over Deputy President William Ruto’s case at The Hague have questioned his application not to be physically present at all times during his trial.
Judge Chile Eboe-Osuji queried the basis of Ruto’s application given that he had vied for the deputy president’s position knowing he had a case at the ICC.
Ruto’s lead lawyer Karim Khan defended his client’s application, saying the deputy president’s political career did not start in Kenya’s last election.
“He was engaged in politics long before these proceedings commenced,” Khan argued. “And the highest office he has attained thus far is deputy president so it’s a continuation of his public service to the Republic of Kenya.”
Khan had on Tuesday explained that his client would be present for the trial at critical junctures but it would be a challenge for the deputy president to be physically present for the entire process given the demands his office makes on his time.
“An accused is presumed innocent and it’s not house detention. Ruto is not only an individual literally bowing to justice, he is also the deputy Head of State of the Republic of Kenya with unique responsibilities and bound by the constitution of that country,” Khan said.
The judge also grappled with the precedent Ruto’s application – if granted – would set, and if the same should be extended to Ruto’s co-accused Joshua arap Sang.
Sang’s lawyer Katwa Kigen had on Tuesday argued: “If an order is made for an accused to participate without necessarily being physically present, we would assume the order would not necessarily be saying only the first (Ruto) accused.”
On Wednesday however, Khan called on the judges to consider the application on a case-by-case basis: “Two suspects in the same case may have personal circumstances that may be different to them. And the court in every situation must balance. You can’t have a one size fits all package to justice. Your honours have the sophistication and the experience to hear and to determine what amounts to justice.”
Khan also disputed the prosecution’s argument that it would be unfair to the victims of the 2007/2008 post-election violence if Ruto were not physically present for the entire course of his trial.
“They need to be reassured that there are people who are listening. They need to say, it counts, it matters and it will be heard not only by your honours but by the parties that are present,” Cynthia Tai argued for the prosecution on Tuesday.
But Khan countered on Wednesday: “Normally, what’s said is it’s scary, it’s fearful, a witness is somehow constrained if a perpetrator is before them; from that perspective, victims and witnesses should be emboldened.”
The arguments made at Tuesday and Wednesday’s status conference will help the ICC judges determine when Ruto’s case will be heard and if he will be required to be present throughout the trial.
Khan and his team want Ruto’s trial to be held in November to allow them sufficient time to prepare a formidable defence: “Trust us as experienced counsel when we say we need additional time. We are working as hard as we can. Seven days a week. Literally.”
As do Kigen and his team: “We have over 11,000 pages to read. We have over 41 witnesses to deal with, 980 documents to read and the disclosure is still goes on.”
The prosecution has however dubbed the delay “excessive” even as it faced accusations of waiting until the last minute to disclose developments in their investigations to the defence.