Wednesday, October 23, 2013

Deferral vs Excusal from Trial: Justice Chile Eboe-Osuji Has His Say

After a long break, I am back with a short post on the unfolding Kenyan ICC cases.

As we await the ICC's Appeal's Chamber's decision in relation to whether DP William Ruto will be allowed to skip most of his trial, I have read with interest the Trial Chamber's decision to allow President Uhuru Kenyatta to be absent from most of his trial. I am not convinced that the majority decision of the Trial Chamber, as was the case in DP Ruto's excusal decision, sits on firm legal grounding. In my view, justice Chile Osuji reads the politics right though. I read Justice Eboe-Osuji's separate concurring decision as a not-so-coded political message to his colleagues, the prosecutor and the UN Security Council. For the first two ICC actors, he seems to be saying: lets play ball to save the ICC (if AU's threats and the current poisoned environment are to be taken seriously, which he appears to do). Justice Eboe-Osuji presents excusal of the President from attending trial as a clear, and desirable alternative to deferral under Art 16 by UNSC. He sends a message to the UNSC hoping that it will act 'sensibly'. In this regard, he worries about the impact of deferral on the rights of victims noting at para 46 that:

'It is one thing to suggest that no injustice will be necessarily occasioned if Mr Kenyatta's case is deferred pursuant to Article 16 in order to allow room for the ongoing trial of Mr Ruto to proceed with greater speed and ease; it is quite another matter to accept that Mr Kenyatta's trial may not proceed for another five years—possibly ten—when the events in question occurred five years ago.'

It para 41, he reminds that events took place in 2007-2008. He then states, in unambiguous language, apparently not in favour of deferral as follows:

'To hold off proceedings during the term of office of the accused would mean a delay of 10 years at least before the trial begins. It is not necessary also to consider that the accused is entitled to run for a second term of another five years,^^ thus holding out the prospect of delaying the proceedings for 15 years. The delay of 10 years alone is hardly justifiable as reasonable. 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.'

With legal problems that excusal has, the stakes could not be higher, especially given that in my view, the deferral request that has reportedly been made by the Kenyan government to the UNSC stands (if it is) on very thin and exhausted legal legs indeed. Interesting times ahead. Post Friday 25 Oct scenarios are many, but that is for another day! One thing is clear though: Friday's decision could decide whether Fatou Bensouda appeals the Uhuru decision, which is substantially the same as the Ruto decision that she appealed. The only difference is that one is President, and the other is not. Will that matter?


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