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Prosecution appeal against the “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang


Sanji Mmasenono Monageng, (PJ); Sang-Hyun Song (J); Akua Kuenyehia (J); Erkki Kouroula (J); Anita Usacka (J)

July 29, 2013

Reported by Monica Achode


The appeal was anchored on seven unambiguous words in Article 63(1) of the Rome Statute: “The accused shall be present during the trial”.  It was the prosecution’s contention that the majority of Trial Chamber V(a) erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial. Article 63(1) established the accused’s presence as a fundamental requirement or condition of the trial. The seven words of Article 63(1) were clear on their face and even clearer when read in the context of the Statute as a whole, which permitted an accused’s presence to be waived at confirmation – but not at trial. Thus, pursuant to Article 63(1), the accused was required to attend the trial.

The prosecution went on to state that whatever “discretion” a trial chamber may have, it did not permit it to discard controlling statutory requirements, or to substitute its own policy preferences for those of the States Parties. The Majority was bound to apply the law as it stood. The Decision failed to do this, and was incorrect as a result. It was their contention that if upheld, the decision would indicate that trial judges had virtually unlimited “discretion” to apply some parts of the Statute and to ignore others. That was not the system the States Parties agreed to when they ratified the Statute and transferred some of their sovereignty to the Court. The States Parties expected all provisions of the Statute to be given effect – particularly those such as Article 63(1), which were unambiguous. The Decision failed to observe this basic rule and had to be reversed.

Grounds of Appeal:

The following were the grounds of appeal adduced by the prosecution:

1. That the Majority erred in law by disregarding the attendance requirement under Article 63(1) and by excusing Mr Ruto from attending substantially all of his trial.

a. The decision failed to give effect to Article 63(1) in line with its ordinary meaning

b. The decision misconstrued the context, object and purpose of Article 63(1)

c. The decision ignored the drafting history of Article 63(1), which demonstrated that the accused’s presence at trial was required

d. The decision was based on the erroneous premise that a trial chamber had “discretion” to disregard the attendance requirement under Article 63(1)

e. The decision relied on an incorrect “duty” analysis

f. The decision improperly relied on external sources of law rather than this court’s statutory provisions that resolved the issue

2. That the Majority erred in law by excusing Mr Ruto on the basis of his “important functions”.

a. The Majority’s test was incorrect because it extended beyond the solitary exception codified in Article 63(2)

b. The Majority’s test violated the principle of equal treatment under the law, as expressed in Article 27(1) of the Statute

c. The Majority’s test presented a “floodgates” problem.

Request for Suspensive Effect

If the Appeals Chamber was unable to resolve this appeal before Mr Ruto’s trial commenced on 10 September 2013, the prosecution requested suspensive effect under Rule 156(5) because the implementation of the Decision would

i. create an irreversible situation that could not be corrected, even if the appeals Chamber eventually were to find in favour of the appellant

ii. lead to consequences that would be very difficult to correct and may be irreversible, or

iii. could potentially defeat the purpose of the appeal”.

Implementation of the Decision would have the effect of excusing Mr Ruto from trial after opening statements. This appeal aimed to ensure Mr Ruto’s attendance at the trial, and to prevent the possibility of the trial being nullified due to the lack of a necessary condition under the Statute. Implementation of the Decision necessarily defeated this purpose; the trial would commence on the basis of an incorrect legal framework, and as a consequence proceedings would be tainted.

Moreover, implementing the Decision would create an irreversible situation that could not be corrected and would lead to consequences that would be very difficult to correct and may be irreversible if the Decision was overturned and the trial had to restart in Mr Ruto’s presence. In particular, the Prosecution would have to recall witnesses who testified in Mr Ruto’s absence. Considering the difficulties faced in this case, such witnesses might not be willing or able to return to testify again, depriving the Prosecution of part of its evidence.


For the above reasons, the Prosecution requests the Appeals Chamber to:

1. Grant suspensive effect of this appeal by ordering that Mr Ruto shall be required to attend trial until this appeal has been decided; and

2. Reverse the Decision.

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