By now, readers will be intimately aware with the ongoing and tragic crisis unfolding in Nairobi. According to reports, al-Shabab militants have barricaded themselves and hostages inside Westgate mall. Some 70 civilians have been killed with well over a hundred injured. Al-Shabab claims the attacks are in retaliation for Kenya’s military involvement in Somalia.
When the siege broke out, some commentators suggested it would help the cases facing Kenya’s President Uhuru Kenyatta and Vice President William Ruto. Both face charges at the International Criminal Court (ICC) over their alleged role in Kenya’s 2007/08 post-election violence. They have argued (quite reasonably I think) that, as the head or state and deputy head of state of Kenya, they should not have to both attend trial in The Hague simultaneously. The massacre at Westgate would seem to bolster their argument.
But Ruto has taken things a step farther. As the siege continues, he berated the ICC for making him attend his trial (note: ICC Judges adjourned his trial as a response to the events at Westgate). Standing on the steps of the ICC, he exclaimed that the attacks in Nairobi were timed to coincide with his trial. Even more dubiously, Ruto asserted that President Kenyatta was unable to attend a conference on the security situation in Somalia last week because Ruto was forced to attend trial in The Hague.
Ruto and Kenyatta have worked tirelessly to have their trials dismissed. But it’s one thing to try to get motions passed at the Security Council to throw out the cases or resolutions passed in Kenyan Parliament to get Kenya to withdraw from the ICC. It’s another thing altogether to use this awful tragedy afflicting Kenyans to undermine the Court. It represents a brand new low.
UPDATE: There has been some concern that I didn’t quote Ruto directly in the post. I thought his words speak for themselves. Regardless, Kenya Today has transcribed Ruto’s remarks, referring to them as “sensational”. From his statement, I find it impossible not to infer that what Ruto is saying is that the ICC process which has kept him out of Kenya is (at least partly) to blame for the Westgate crisis. His comments clearly suggest that, had it not been for the ICC trial process, the Westgate attack would not have occurred. As of writing, no evidence to date has been provided to substantiate any claim that the attacks and Ruto’s absence from Kenya were coordinated or had anything to do with each other.
“Its really unfortunate that these terrorists attack was timed to coincide with my presence here at the Hague and the visit by His Excellency the president of Kenya to New York for the UN general Assembly. Meaning that both the president and myself would not have been in the country. It is also instructive to note that the president skipped a meeting last week on the 16th in Brussels that was meant to discuss the Somali crisis complete with the threats it poses to the security situation in Kenya in the horn of Africa and generally in the region,the president had to skip that because he was unable to attend because am required to continuously attend court here at the Hague. It is also important to note that because of the Somali problem that Kenya is engaged in, That these terrorists have been wedged on Kenya . We hope that some people will begin to contextualize what is going on and begin to appreciate the challenges that Kenya is going through, the region is going through,and the complications that are brought by what is going on here. We believe in justice, we believe in fair play and we have as a country, both the president and myself as individuals, we’ve committed ourselves to be present here in court so that we can clear our names but we have to counter balance our individual responsibilities or responsibilities as individuals and legitimate constitutional requirements by 40 million Kenyans. I will be home hopefully this evening to participate in my capacity as deputy president in managing the situation at home and hopefully we should be able to bring this to a close in the shortest time possible to alleviate any further suffering and to put our country on the safe path” .
Justice in Conflict 
Whilst I agree with most of your observations above, your assertion that it is reasonable for a head of state or his deputy to avoid actually attending their trail has one big problem. The law.
In this case the Rome Statute of the International Criminal Court. More particularly Article 63 (1) which states, “The accused shall be present during the trial”. Ruto really will have problems wriggling out of that.
Furthermore, the same statute provides for trials of heads of state in Article 27 where it states:
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility
under this Statute, nor shall it, in and of itself, constitute a ground for reduction of
sentence.
2. Immunities or special procedural rules which may attach to the official capacity of
a person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.
I’d say that was pretty clear. So Ruto can kiss goodbye to the idea of avoiding the inconvenience of attending his trial.
One other thing. If Ruto were to be convicted in his absence you can be sure he would start bleating on about being denied a fair trial. One of the basic ways to help ensure a fair trial is to have the defendant present throughout proceedings.
Hi Jonathan,
Thanks for the comment. My point was that their request to sequence their appearances at the Court were reasonable. I agree with you that they should be present during their trials.
Best,
Mark
Hi Mark,
I take your point. However, if they are alleged to be co perpetrators then they really should be tried at the same time. On the other hand, If there is no significant nexus between the two then they would have a much stronger argument for separate trials.
Best.
Jonathan
I think the ICC looks really weak for caving in to the demands of Kenya’s president and VP. Would other indictees have such treatment? If the two indictees are privileged in the eyes of the ICC, I have no doubt they’ll weasel out of these post-election violence charges.
It was a balancing decision, Erica. This one was tenable, I feel. I do how wonder about the sequence of adjournament and excusal here. What was not only untenable, but insupportable by any standard, was the clown show of Karim Khan this very morning in the ICC.
Jonathan; since when would judge Eboe-Osuji care more for the text of the law, unimportant as it is, than for his own vanity and scholarly somersaults?
Alexander, the law governing the presence of the accused is, in my opinion, totally unambiguous. That doesn’t mean, of course, that it will be applied correctly and, if it is not, that will only serve to further degrade the reputation and legitimacy of the ICC.
Ruto was not referring to ICC timing, he was referring to Al Shabaab timing their attack to coincide with his trial! No wonder it is so hard to explain things political in Kenya to ICC groupies. One would think that you would be self righteously pontificating less about Ruto’s statements, but rather, expressing outrage about the dubious decision by the trial chamber to conduct Ruto’s trial in the dark by hearing witness testimony in secret, while all this time they have been prosecuting their unproven accusations in daylight since 2009. One would assume that such high minded ICC groupies would prefer to hear Ruto’s defense in the open, just as much as the millions of Kenyans whose justice the ICC pompously claims to be prosecuting. The hypocritical (not to mention sinister) decision by the prosecution and supported by a clearly partisan trial chamber, to hear witness testimony in the dark, only goes to buttress the view that this trial is a sham trial before a Kangaroo court reminiscent of military dictatorships and with one outcome in mind, a judicial lynching. Stop taking Kenyans for fools.
Tony Irungu, there is unreputable proof that there there has been witness and victim intimidation. The measures taken by the Court are to protect these individuals from reprisals. You must remember that the defence still has access to the entire unredacted testimony. Even in national courts in Kenya, there are provisions for in camera hearings where necessitated.
Mark – the title of your analysis on Ruto’s statement is utterly wrong and out of context. You should apologise.
It is indeed a true low to stretch a long sentence in a bizarre conflation of two distinct issues to create new fictitious fact where one did not exist. It would have been very simple to quote the exact sentence as spoken by DP Ruto. This type of tactic that aims to create smoke where there is none is similar to the recent showing of a video with no audio in the trial chamber where it was claimed that certain things were said by the DP in an alleged meeting and all the defence team simply had to do was play the video with sound to disprove what the OTP claims.
So here is it, paraphrased as spoken: “It is really unfortunate that this terrorist attack was timed to coincide with my presence here in the Hague and the visit by the excellency the President of Kenya to New York for the UN general assembly, meaning that both the President and myself would not have been in the country.”
Every single post here on the Kenya ICC cases is a witch hunt of sorts that is founded in the presumption of guilt, not innocence. Were Ruto a private citizen, these types of claims that are established on the basis of fictitious imagination, would very arguably fall into libelous comments made with deliberate malice.
That said DP Ruto simply stated that it was unfortunate that the Westgate attack coincided with the timing of the trial at the ICC. He went on to state a complaint which he is entitled to make, whether you disagree with it or not, that the scheduling of the ICC trial (not Westgate) affected the ability of President Uhuru to attend the UNGA as both the President and DP cannot be out of the country at the same time. Those are two simple things said as part of what was a winded statement.
Stooping ridiculously low to invoke a fallacious suggestion that DP Ruto blamed the ICC for Westgate places you in the same category as the terrorist scum that committed these heinous crimes and is an affront to all Kenyans impacted by this tragedy.
The point is that there *ARE NO* “legitimate constitutional requirements of the national legal order at stake here.
None. None at all.
The problem here is not that both top political representatives of an African state would be away from their country at the same time. At a time maybe where Kenya is engaged in a military occupation / semi-annexation abroad, and in fighting terrorism within. That is not the issue.
The one problem is that two suspects accused of the gravest crimes against humanity had the brazen audacity, the incredible chutzpah, to present themselves candidate for the highest offices of the state, perfectly well KNOWING that they would not able to attend to their duties, that they would with certainty NOT be able to fulfill what their constitution demands of them.
There is a statutory name for such temerarity under Kenyan national law. The name for it – Obie knows it – is “obtaining under false pretences”. A simple and trivial crime.
And the other problem is that 50,07 % of the voters decided to vote these men into the highest offices, fully KNOWING – when they were casting their ballots – that these two accused would with certainty not be able to fulfill their duties and do what every Kenyan can demand from. It was like electing two chicken to be the bosses of the fish pond.
But there is a very simple, a very logical, and a very constitutional SOLUTION for this double problem:
– On part of the two who are being (in case of Ruto) and shall be (in case of Kenyatta) culpably and foreseeably relict of their constitutional duties, there is only one step left for them: to *resign*.
– And on part of the people, who now can clearly see that they elected a chicken to swim and dive, there is only one corresponding step left for the people’s representation, the parliament: to *impeach* the two.
Case resolved, problem cleared.
Yesterday’s transcript sheds a little more light on various issues raised by Mark and by commentors:
– Karim Khan’s remarks at p. 7, lines 4-9 explicitly make the allegation which Mark found objectionable, namely that the timing of the attack was aimed to coincide with the trial and the UNGA. However, they don’t say that the attack would not have occurred otherwise, only that its timing was chosen to coincide with the expected absence of Kenyatta and Ruto from Kenya. It’s also a bit complicated as to how this relates to the trial going on in Ruto’s absence as that involves both concerns about interrupting the testimony of the current witness and the suspensive effect granted by the Appeals Chamber. I’d encourage reading the whole transcript, but here’s the relevant quote from Karim Khan:
“it seems that the terrorists that have planned this attack aimed it at a period when they thought Kenya was most vulnerable, when there would be a vacuum of leadership, and that the President would be in New York and that the Deputy would be here. Your Honour, it was a calculated attack to strike a country in its moment of weakness.”
– The Prosecution remarks at p. 16, lines 17-22 (and previous) address the issue of how Kenya should address Ruto’s absence generally (Karim Khan responds later – again, read the whole transcript for a fuller picture):
“Kenya faced security concerns before Mr Ruto’s election and no doubt it will face concerns similar to that long after he’s departed the scene. My submission is, and the Prosecution’s position is, that in the coming week Mr Ruto should take the necessary steps to put in place capable and responsible people to delegate the necessary powers to them in order to respond to the crisis”
Thanks very much for the comment David.
In the absence of any evidence that the attacks were coordinated with the absence of Ruto because of the ICC, I continue to find it deplorable that he linked them and, in doing so, exploited the suffering of Kenyans for his own, personal benefit. I see no other way of reading his statement made on the steps the ICC or the section of the transcript you’ve shared.
Mark, I find this post rather strange. Where do you see Ruto “blam[ing] the ICC for the Westgate tragedy”, as you titled your post? I have to say I agree with some of the previous comments that this does seem like quite a stretch. His comment about ‘timing’ clearly refers to the terrorists, not the ICC. The issue of both leaders being out of the country, or the Somalia conference thingy, just seem like normal politically-motivated comments (which are probably not false either). Yes, Ruto is making political hay out of the Westgate tragedy, which some may find distasteful, but that is not quite the same thing as arguing he blames the ICC for Westgate. I really find that to be a rather strange conclusion.
Incidentally, on the issue of hay-making, it would be interesting to hear your thoughts about Bensouda’s equally distasteful, in my opinion, statement – released earlier today – where she claims that the ICC will help bring justice to the people of Kenya for Westgate. It’s a clever political strategy, aiming to shore up the Court’s standing in the country, but it is completely dishonest given that Bensouda knows full well she has no jurisdiction over an isolated terrorist incident. The Pre-Trial Chamber has already been very creative with the notion of crimes against humanity, but it’s not enough for Westgate to meet any definition of crimes in the Rome Statute. Eye for an eye, I guess (re Ruto’s hay-making).
Thanks for the comment, Maya.
To me, the statement he made cannot be read in any other way than as saying: if Ruto had not been at the ICC and if Kenyatta could have been at the conference on Somalia (but he couldn’t because Ruto was at the ICC), then the attack wouldn’t have happened because it could not have been coordinated with Ruto’s absence from the country. To me that amounts to Ruto apportioning blame/responsibility to the ICC for the attacks and, in particular, on the Court’s unwillingness to yield to his requests to not attend his trial.
But I’m also surprised that so many commentators (not necessarily you) are accepting his statement without any evidence that the ICC process and the attacks by al-Shabab were, in fact, coordinated.
Do you have a link to Bensouda’s statement? I’d be keen to read it. I agree that it would be completely wrong to suggest the ICC process could bring justice to victims of the Westgate attacks.
Here’s the statement: http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-24-09-2013.aspx
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