The Appeals Chamber of the International Criminal Court (ICC) has said that Deputy President William Samoei Ruto should be present during his trial proceedings, reversing an earlier decision trial judges made excusing Ruto from a significant part of his trial.

Friday’s decision of the Appeals Chamber was unanimous in reversing the June 18 majority decision of Trial Chamber V(a). The appeals judges, however, were divided on whether Trial Chamber V(a) correctly interpreted the law when determining what discretion they had in granting Ruto an excusal from portions of his trial. In a 3-2 decision, the Appeals Chamber agreed with the trial judges’ reading of the law but concluded that the trial judges had exercised their discretion too broadly.

“In particular, the Trial Chamber provided Mr Ruto with what amounts to a blanket excusal before the trial had even commenced, effectively making his absence the general rule and his presence an exception,” wrote the majority of the Appeals Chamber. “Furthermore, the Trial Chamber excused Mr Ruto without first exploring whether there were any alternative options.”

The appeals judges concluded, “Finally, the Trial Chamber did not exercise its discretion to excuse Mr Ruto on a case-by-case basis, at specific instances of the proceedings, and for a duration limited to that which was strictly necessary.”

In its majority decision, the Appeals Chamber set out six criteria Trial Chamber V(a) should follow when deciding whether to allow an accused person be absent from his or her trial. These include that an absence should only be in exceptional circumstances, it should be for a limited period, and the accused person must have explicitly waived their right to be present at trial. Other criteria include that alternatives to the accused person being excused from trial have been considered, that the accused’s rights are protected, including having their counsel present during trial, and that an excusal is decided on a case-by-case basis.

Judges Erkki Kourula and Anita Usacka disagreed with their fellow judges on whether the trial judges had correctly interpreted the Rome Statute’s provision on an accused person’s presence in court during their trial. This provision is in Article 63, paragraph one.

Judges Kourula and Usacka reasoned that when that provision is read together with others in the Rome Statute then it is clear that an accused person is required to be present in court during their trial and judges do not have any discretion in the matter. They also used a provision of the Vienna Convention on the Law of Treaties and excerpts of the official record of the negotiations on what finally became the Rome Statute to back their reasoning.

“In our view, the introduction through creative interpretation of further unwritten exceptions to the requirement that the accused be present, subject to a number of ill-defined conditions, goes against the express will of the drafters and the explicit provisions of the Statute,” Kourula and Usacka wrote in their separate opinion.

Lawyers representing victims in the two Kenya cases at the ICC welcomed the Appeals Chamber’s judgement. Wilfred Nderitu, who represents victims in the case against Ruto and former radio journalist Joshua arap Sang, said the Appeals Chamber’s decision correctly stated what the principle is concerning the presence of an accused person at trial.

“An accuser should always meet the accused in the court room,” Nderitu told ICC Kenya Monitor. “In fact, the way we know it in the court system here [Kenya] is the accused must at all times be before the court, except for mentions, in criminal matters.”

Nderitu did not think that the Appeals Chamber’s decision will give African leaders, who in recent weeks have heavily criticized the ICC, another reason to hit out at the court because it did not uphold the earlier decision of the trial judges.

“I think anyone who looks at the decision will see that it is legally sound. It is not a question of the court disrespecting Africans,” Nderitu said. “It is just in keeping with what would happen in our own courts. It would have been a very radical move if the Appeals Chamber had upheld the Trial Chamber’s decision.”

Fergal Gaynor, who represents the victims in the trial of President Uhuru Muigai Kenyatta, said the Appeals Chamber clearly answered the question of whether an accused can be excused from almost all of his trial on the basis of official capacity.

“The answer to that question is no,” Gaynor said.

He also said that the Appeals Chamber leaving undefined what exceptional circumstances qualify for a limited excusal gives trial judges room to act according to the needs of each case that comes before them.

“This pragmatic and flexible approach of the Appeals Chamber comes just three days after Mr Kenyatta’s Government requested the United Nations Security Council to suspend the Kenyan trials for one year,” Gaynor said. “The Government’s letter made no mention of any intention to bring justice to the victims of the post-election violence in Kenya.”

He said the pragmatism and flexibility shown by the Appeals Chamber, “means that it will be very difficult for Mr Kenyatta to convincingly argue before the Security Council that it should vote in favor of an Article 16 resolution to suspend his trial for a year.”

Today’s decision of the Appeals Chamber was immediately put to test when Ruto’s lead lawyer, Karim Khan, applied for him to be excused from the trial proceedings for three days next week. Khan said that this was necessary to enable Ruto be in the country while Kenyatta leaves Kenya to attend a meeting on Monday and Tuesday with the presidents of Rwanda and Uganda in the Rwandan capital, Kigali. Khan said the Kenyan constitution did not allow both the president and deputy president to be out of the country at the same time.

Senior Trial Lawyer Anton Steynberg said the prosecution had no objection to the court granting the limited excusal. Steynberg, however, raised the question of what was the correct definition of the exceptional circumstances stated in the Appeals Chamber’s decision. He said the prosecution was not willing to concede that that could mean the constitutional responsibilities of a deputy president in Kenya.

Presiding Judge Chile Eboe-Osuji said the chamber would allow Ruto to be excused from his trial until Thursday morning next week because the defense and prosecution were in agreement. Judge Eboe-Osuji said that Ruto should sign a fresh form waiving his right to be present during his trial in order to replace the one he had signed in June, which was rendered void by today’s Appeals Chamber decision. The waiver means that Ruto cannot challenge the evidence of a witness on the grounds that he was not present in court for the witness to identify him as the person against whom the witness is making allegations.

The trial proceedings continue on Monday with Ruto’s lawyers present.