By Anne Mugisa and Agencies
International Criminal Court chief prosecutor Fatou Bensouda has asked the court to reject submissions to excuse Deputy President William Ruto from attending all the court sessions.
The appeal to have Ruto excused from continual presence at The Hague where he is being tried over the 2007, election violence, was made by five African countries. They include Tanzania, Rwanda, Uganda, Burundi and Eritrea, but Bensouda said that their arguments are baseless and have no place in the Rome Statute.
However, Uganda's Minister of Foreign Affairs Sam Kutesa has said that that refusal to grant that request would make it difficult for the government of Kenya to function. And also that it will make it hard for people to cooperate with the ICC.
Last week President Yoweri Museveni and neighbors Paul Kagame of Rwanda and Jakaya Kikwete of Tanzania were among leaders who blasted ICC during the United Nations General Assembly in New York.
"…the ICC in a shallow, biased way has continued to mishandle complex African issues. This is not acceptable. The ICC should stop", said Museveni on Tuesday. Tanzania, Rwanda, Eritrea, Uganda and Burundi writing as "friends of the court" described ICC justice as "ritualistic" if it has to adopt a "mechanistic requirement" that an accused head of state be continually present in trial. They asked the court to 'go slow' on such requirements.
The application which was filed on September 17 was signed by Rwanda's Attorney General Busingye Johnstone on behalf of his Tanzanian colleague Frederick Mwita, Uganda's Foreign Affairs minister Sam Kutesa, his Burundian counterpart Kavakure Laurent and Eritrea's ambassador to the AU Girma Asmeron.
The appeal by the five African countries largely borrowed from the AU letter which was dismissed by the ICC. They asked the appeals chamber to acknowledge that the court works on consent and mutual respect and requested the chamber to uphold the decision of the judges hearing the Ruto case which had allowed Ruto to partially attend some but not all of the proceedings.
"The court needs to be slow to sanction the government via 'remote control' from a foreign capital and needs to be flexible and confident enough to realize that the Rome Statute is adaptable and mature enough to operate effectively," the five countries say in their letter.
They said the "ritualistic justice" which required the physical presence of the accused at all stages should be repudiated and could not withstand scrutiny.
Saying a head of state role was a "round-the-clock" responsibility, the five countries said the Kenyan electorate should not be denied the services of the "best government they are entitled to."
If their request was allowed, they said this would "encourage the highest office holders in state parties and non-state parties to fully cooperate with the court in the future."
But Bensouda insisted that "the court is an independent legal institution and does not render its decision to encourage the ratification of the Rome Statute by nonstate parties," Bensouda argued.
She said the fact that Ruto holds a "high government office" is no exceptional circumstance as argued by the five countries.
She said Articles 27(1) and 23(1) of the Rome Statute are clear that official positions are irrelevant in ICC trials.
Bensouda also appealed a decision by the Ruto trial chamber, led by Chile Eboe-Osuji, which excused Ruto from continuous presence in his trial. The appeals chamber has since suspended the order pending the determination of her appeal.
In the September 10 letter written to the ICC President Sang-Hyun Song, the AU demanded that Uhuru and Ruto be allowed to choose the ICC sessions "they wish to attend."
The two also reminded the ICC of the AU's earlier resolution requesting the ICC to refer the Kenyan cases to the Kenyan judiciary.
"We are seriously concerned that the proceedings of the court on the Kenyan defendants are beginning to adversely affect the ability of the Kenyan leaders in discharging their constitutional responsibilities," the AU letter said.
In its response, the ICC told the AU that the court has no reason whatsoever to harm the interest of any state party in any way. He said judges of the court must take all their decisions within the legal framework established by the states that created the court including majority of the AU member countries who are also signatory to the Rome Statute.
"Within these legal boundaries, the court remains fully committed to friendly and cooperative relations with the AU in the spirit of our shared values," Justice Tarfusser who signed the letter on behalf of the ICC cautioned.
On the AU resolution on referral of the Kenyan cases back to Kenya, the judge said a decision of the AU does not similarly constitute to a request to the court.
He said since the admissibility challenges lodged by Kenya two years ago, no such challenge has been lodged with the court.
"'The cases will proceed before the ICC in the absence of any issue that will trigger a decision to the contrary in accordance with the court's legal framework," he said.