, NAIROBI, Kenya, Dec 16 – Deputy President William Ruto’s lawyers are back court seeking his excusal from continuous physical presence at his trial, following recent changes to the International Criminal Court (ICC) Rules of Procedure and Evidence.
The fresh application by his defence follows several amendments passed during the 12th session of the Assembly of States Parties (ASP) in The Hague last month.
“The defence for Mr Ruto has requested the Trial Chamber, pursuant to Article 63(1) of the Rome Statute and Rule 134quater of the Rules of Procedure and Evidence to excuse him from physical presence at his trial due to his extraordinary obligations at the highest national level,” the application reads.
According to the application lodged by lawyer Karim Khan QC, Ruto as the Deputy President of the Republic of Kenya, has extraordinary public duties to perform hence the court should grant the request and allow him to be represented by his counsel during his absence.
“An accused subject to a summons to appear who is mandated to fulfil extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial,” Khan asserted.
One of the amendments passed allows defendants who have “extraordinary public duties at the highest national level” and who are not the subject of an arrest warrant to ask judges for leave of absence from their trial, so that they are instead represented by their lawyers.
In circumstances where Ruto is required to be physically present and cannot make it to The Hague, Khan said he should be allowed to follow proceedings via video link.
His request was based on a second amendment adopted by the ASP which allows a defendant who needs to attend under a “summons to appear” to follow trial proceedings via video-link rather than be physically present in the courtroom.
“First, through Rule 134, the ASP clarified that Article 63(1) of the Statute permits an accused to fulfil the presence requirement through video technology upon application to and at the discretion of the Trial Chamber,” khan argued.
A decision in which Trial Chamber V(a) had allowed Ruto to skip sessions of his trial so that he could attend to state duties was over turned by the Appeals Chamber on October 25.
This was after ICC Prosecutor Fatou Bensouda argued to the Appeals Chamber that that all accused persons must be present during their trial and maintained that they should all be treated equally.
Bensouda also challenged a ruling by Trial Chamber V(b) which had allowed President Uhuru Kenyatta to skip sessions of his trial making it mandatory for him to be physically present.
The judges in the two chambers had initially allowed both Kenyatta and Ruto to skip sessions of their trials but the decisions were reversed after applications by the prosecution.
The judges said Kenyatta and Ruto could make requests when they have exceptional duties to perform and the excusal will be considered on case-by-case basis.
However the passage of the two amendments by the ASP has set new pace for the defence teams to once again request for excusal from continuous presence.
Trial Chamber V(a) on Monday said it will issue a ruling on Ruto’s second application on excusal from continuous presence in due course.