ICC rules Kenyatta can miss part of trial

The International Criminal Court has conditionally excused Uhuru Kenyatta, president of Kenya, from attending all of his trial for crimes against humanity at The Hague, in a decision that may defuse a tense diplomatic stand-off.

Mr Kenyatta is due in court on November 12 to answer charges that he was responsible for the post-election violence of 2008 that brought Kenya to the brink of civil war. He is accused of marshalling and financing murderous ethnic gangs in violence that killed more than 1,100 people.

Mr Kenyatta would be the first sitting president to take the stand. William Ruto, Kenya’s vice-president, also faces charges of orchestrating the violence.

The politicisation of the looming trial as “Africa against the west” is causing a diplomatic “catastrophe”, according to one international observer. Kenya has marshalled support from the African Union against the ICC, which Mr Kenyatta castigates as a tool of the west, calling it “a toy of declining imperial powers”.

The AU recently said that no head of state should stand trial, even though the ICC grants no such immunity.

The court said late on Friday that the decision, adopted by a majority of judges, still required Mr Kenyatta to attend the opening and closing statements by all parties, victims’ hearings, delivery of judgment and subsequent sittings should he be found guilty, as well as any other hearings they may additionally require.

Mr Kenyatta’s government and his AU supporters are unlikely to be satisfied as the decision can be appealed and still requires him to take the stand. Kenya is therefore likely to pursue its aggressive diplomatic line at the UN.

“That’s fine – that was our original plea, we are getting there,” a close advisor to the president said. “But if [ICC chief prosecutor Fatou] Bensouda appeals, the whole thing is meaningless, so we continue [with our dissent]. Video conferencing is the best thing to get this thing over with.”

The prosecution has indicated it will indeed appeal, as it did a similar decision granted to Mr Ruto. The Appeals Court has yet to issue a final ruling in the latter case but in the meantime has said Mr Ruto – who was allowed to return to Nairobi after the Westgate shopping mall terror attack – must attend his trial continuously.

Despite Kenyan claims of wholesale African antipathy towards the ICC, the dispute is not clear cut. Kenya itself referred the case to the court and AU member states – 34 of which are also signatories to the treaty that mandates the ICC – were split in private on whether to walk out of the organisation, a question they did not address.

Briefing notes seen by the FT suggest only six African ICC signatories oppose the court but they include big hitters Nigeria and South Africa as well as east African nations. Double that number, drawn mostly from west African and francophone states, including Guinea, Ivory Coast and DR Congo, support the court.

“Kenya is throwing everything at the wall and seeing what will stick,” said an international ICC observer familiar with Kenya’s complaint.

Sources familiar with the matter say Kenya has also prepared a draft letter to the UN Security Council, currently circulating in New York, asking for Mr Kenyatta’s case to be deferred by a year. The letter is due to be delivered formally next week.

Kenya argues that following last month’s terrorist attack, in which at least 67 were killed, Mr Kenyatta’s absence from his nation would constitute a threat to international peace and security – grounds for a delay. Kenya would have to secure nine votes and no vetoes from the 15-member UN Security Council to win such a delay.

Not everyone agrees with the argument. “Westgate tells me even more that we have to deal with accountability,” said human rights campaigner Maina Kiai, citing allegations of looting and poor command and control by Kenyan authorities during the four-day siege.

“We have a system that says if you’re powerful and rich you can do anything you want.”

Mr Kenyatta’s excusal is “strictly granted to accommodate the demanding functions of his office as president of Kenya, and not merely to gratify the dignity of his own occupation of that office,” said the ICC.

Presiding judge Kuniko Ozaki from Japan dissented from the majority decision.