Judges in the upcoming trial of President Uhuru Muigai Kenyatta at the International Criminal Court (ICC) have, in a majority decision, conditionally allowed him to skip some trial hearings, citing last month’s attack on a shopping mall in the Kenyan capital as one reason for the ruling.

In a 2-1 decision, Trial Chamber V(b) said Kenyatta will be required to be present to listen to all opening and closing statements, when victims testify, and any other hearing the judges determine necessary. The trial chamber reached its decision following an application Kenyatta’s legal team made on September 23. In their 55-page October 18 ruling, the judges said that if Kenyatta’s case went to conviction, he would also be required to attend the sentencing hearings, the sentencing, and other post-conviction proceedings.

This majority decision is bound to elicit as much discussion and debate among human rights defenders and legal scholars as did the June 18 majority decision of Trial Chamber V(a) in favor of a similar excusal for Kenya’s Deputy President William Samoei Ruto. This debate is about what is the correct interpretation of the Rome Statute’s Article 63, which has to do with the presence in court of an accused person during their trial and related matters.

Judges Chile Eboe-Osuji and Robert Fremr, who ruled in favor of granting Kenyatta a conditional excusal from his trial hearings, are the same ones formed the June 18 majority decision of Trial Chamber V(a). The two sit on both trial chambers, so once Kenyatta’s lawyers made an excusal application, it was almost a foregone conclusion that Trial Chamber V(b) would, at the least, reach a majority decision in favor of allowing him to miss some of the trial hearings. Presiding Judge of Trial Chamber V(b), Kuniko Ozaki, dissented.

Judges Eboe-Osuji and Fremr reasoned in their majority decision that the September 21 attack on the Westgate Shopping Mall highlighted why it was important for the chamber to balance the requirement of an accused being present in court with the functions of state that Kenyatta as president would be required to perform. Ruto’s trial was adjourned for just over a week to allow him return to Kenya to be involved in resolving the four-day siege in which more than 60 people died.

“Indeed, the Westgate Mall incident portends a very important object lesson in the circumstances of the litigation under consideration. It exposes, in a very obvious way, not only the dilatory potentials of the resistance to the Ruto relief now sought by Mr Kenyatta; it also exposes the damaging possibilities of the refusal to grant the relief,” the judges wrote in their decision.

Ruto has been required to attend all his trial hearings after the Appeals Chamber suspended the lower court’s partial excusal decision. The Appeals Chamber said that this order would only remain in effect until it reaches a decision. On Tuesday, the Appeals Chamber issued a notice to say it would be making its decision public this coming Friday.

This latest decision by Eboe-Osuji and Fremr is not only different because of its reference to recent tragedies. The judges also spent a considerable part of their decision explaining how they arrived at their interpretation of Article 63 by quoting a number of books and articles of former judges of the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, and others on how to interpret law. In their June 18 decision the judges spent a considerable part of their decision explaining their understanding of different articles of the Rome Statute and how that applied to Article 63.

The judges, as they did in their June decision, also impressed upon Kenyatta that he should do everything possible to prevent any instances of victim or witness intimidation or interference. They said that any such efforts could be taken into account if the case reached the conviction stage.

“But the hope of mitigation of sentence need not be the only motivation for taking effective measures in good faith to ensure that witnesses and victims are not intimidated, harassed or interfered with. It is also the right thing to do in the name of the rule of law and the model democracy that Kenya is and which Mr Kenyatta is obligated to play a principal part in guiding as the President,” the judges wrote.

Judge Ozaki disagreed in her eight-page dissenting opinion with her fellow judges’ interpretation of Article 63 and how they went about interpreting it. She said that they were repetitive in their arguments, and, in some cases, the authorities they quoted were not relevant to the application before them.

“[I]n my view the correct interpretation of Article 63(1) of the Statute is that the accused is required to be continuously and physically present at trial. This is not a requirement that can be waived by the Chamber, subject to very limited exceptions,” Ozaki wrote.

Judge Eboe-Osuji wrote a 21-page concurring opinion in which he elaborated his views about the Kenyatta excusal application. He also went on to address the matter of whether the ICC was targeting only Africans and the African Union’s October 12 resolutions in relations to the Kenya cases before the court. He argued that the AU’s view that heads of state and government enjoy immunity from prosecution is wrong and goes against the movement of international law since World War II, which has been towards lifting the immunity from prosecution of all leaders.

“Valuable resources channelled toward the needs of raging armed conflicts are valuable resources denied to projects that assist national development. From that point of view, the ICC is to be embraced as a veritable gift of development for Africa. It is not to be held in suspicion as a Trojan horse of ill-purpose for the continent and its leaders,” Eboe-Osuji wrote.