Deputy President William Samoei Ruto has decided to test the recent changes made to the International Criminal Court’s (ICC’s) procedures by filing a fresh application seeking the court’s permission to be absent during his trial hearings.

Last month changes were made to the ICC’s Rules of Procedure and Evidence during the annual meeting of countries that have ratified the Rome Statute, which is the fundamental law of the ICC. The changes made included introducing a provision that the court can grant accused persons permission to be absent from their trials if they are elected officials and work in the top echelons of government. Another change allows an accused person to attend their trial via video link.

These are changes that Kenya strongly supported in the recently concluded Assembly of State Parties. They were presented as a major achievement in the months-long campaign to have the court grant Ruto and President Uhuru Muigai Kenyatta unconditional absence from their trials. The campaign also saw heavy lobbying to try and get the United Nations Security Council vote in favor of the Kenya cases at the ICC being suspended for a year as provided for in the Rome Statute. The issue of suspending the cases did not go past the informal meetings stage of the Security Council.

Monday’s filing by Ruto’s lead lawyer, Karim Khan, is the first test of the newly amended Rules of Procedure and Evidence of the ICC. A question that the judges will be confronting when they consider the application is whether the change in the court’s rules is enough to remove any remaining ambiguity in the Rome Statute on the issue of an accused being excused from trial proceedings. This is under Article 63 of the Statute that covers the provisions about an accused person being present in trial.

The excusal question has occupied the court for the past eight months since Ruto’s lawyers first filed an application on the issue in April this year. This matter went all the way to the Appeals Chamber, which determined, in summary, that trial judges do have the discretion to grant an accused person permission to be absent from their proceedings but only a case-by-case basis. The Appeals Chamber also determined that such absence should be granted only if other options have been exhausted.

In Monday’s filing, Khan referred to this background. He argued that Ruto satisfies the condition set out in the newly amended Rule 134 that an excusal may be granted to an individual who is “mandated to fulfil extraordinary public duties at the highest national level.” He also argued the judges searching for an alternative to allowing Ruto to absent himself from trial may prove futile.

“Further, the reality is that, absent a grant of excusal pursuant to Rule 134quater, the nature of these duties [of Deputy President] means that regular and repeated adjournments and changes to the trial schedule will likely be necessary,” Khan wrote in his submission. He also said that the newly changed rule has a provision for judges to review their decision. Khan said Ruto is open to any review of any excusal decision the judges may reach.

The process the court follows when one party files an application is to ask the other parties involved in the case to respond and make their submissions on the issue or issues raised in the application. This is likely to happen when the court returns from its winter recess, which began on December 13 and will end on January 6. A week later, the trial of Ruto and his co-accused, Joshua arap Sang, is scheduled to resume. Therefore, this application on whether Ruto can be excused from his trial proceedings will be pending as the trial resumes in the New Year.