Kenya has been spared a potential crisis after the world court decided that President Kenyatta and Deputy President William Ruto will not be tried at the same time.
The International Criminal Court (ICC) judge presiding over the trial of Mr Ruto and radio journalist Joshua arap Sang, Justice Chile Eboe-Osuji, ruled that the cases will alternate every four weeks.
This, the judge ruled, would allow the judges to give each case maximum concentration.
“The Chamber considered the matter of the cases running simultaneously or on alternating days. We recognise that running the cases simultaneously will not necessarily expedite them. It is the Chamber’s preference that the court sits on a four-weeks alternating period,” he told a pre-trial status conference on Monday.
Mr Ruto’s and Mr Sang’s case starts this morning while Mr Kenyatta’s will start on November 12.
On arrival at The Hague, Mr Ruto, who left the country Monday morning, was given special clearance at the airport, outriders for his motorcade and the roads cleared. He was also given Dutch officers for his protection.
The three accused have denied charges of crimes against humanity arising out of the 2007/8 post-election violence.
A tentative schedule had indicated that the two cases would be run simultaneously between November 12 and December 13, meaning that both the President and his Deputy would be out of the country during that period and will therefore miss the celebrations to mark Kenya’s 50 years of independence on December 12.
The Constitution does not anticipate a situation where the President and his deputy are out of the country for extended periods at the same time.
Mr Kenyatta had on Sunday said that he and Mr Ruto could not afford to be out of the country at the same time.
Mr Kenyatta told a public rally in Ruiru, Kiambu County, that whereas he and Mr Ruto were keen to cooperate with the court at all times, the ICC should not make it difficult for them to do so.
Mr Eboe-Osuji, who was flanked by the other two judges in the case, Olga Venecia Herrera Carbuccia and Robert Fremr, also allowed the prosecutor, the defence teams for Mr Ruto and Mr Sang and the counsel for the victims to use visual aids during their opening submissions Tuesday.
Mr Ruto and Mr Sang did not attend the Status Conference and were instead represented by their lawyers, Karim Khan and Katwa Kigen, respectively. They are, however, expected in the dock when their trial commences this morning.
The judges rejected an application by Mr Ruto’s defence team seeking a four-week adjournment to enable it interrogate the statements of new witnesses.
Responding to this ruling, Mr Khan protested that the move was prejudicial to his client. “The defence is going to this trial from a point of disadvantage. I do not want anybody to think that we are running scared but the introduction of new material prejudices the rights of the accused persons,” he said.
Mr Khan nevertheless maintained that the defence team was prepared to proceed with the case and make their opening submissions this morning.
And the lawyer for the victims, Mr Wilfred Nderitu, made an impassioned plea for those affected by the post-election violence not to be forgotten amidst the focus on duels between the prosecution and high-profile accused.
Addressing a joint media conference, Mr Nderitu pointed out that the interests of the victims were often forgotten by the media, and by extension the public, yet they were central to the entire case.
“It’s often the case that the criminal justice system is about the prosecutor and defence. More important are the victims. Without victims there’d be no case because there would be nobody affected by any crime.”
Mr Nderitu pointed out that the real solutions to the cycle of ethnic and political violence would only be found when the roots going back to 1991 were interrogated.
“We need to bring out the unheard voice, the cry of victims. It’s not easy to talk about the voiceless. Even as you listen to the prosecutor and defence, bear in mind the victims. Let the people know why people who’d lived side by side for many years would suddenly take up arms to kill and evict their neighbours.”
He said that while the current case focused on the killings out of the disputed 2007 elections, it must not be forgotten that similar episodes of political violence in Kenya were recorded ahead of the 1992 and 1997 elections.
From the 2007 post-election violence, Mr Nderitu pointed out, 1,133 persons were reported killed but the victims directly affected by their death were many more because each was a member of a family.
He also pointed out that the 650,000 evicted from homes they had lived in for many years were equal to the population of many cities around the world.
Mr Nderitu noted that a most important element of the trial would be seeking delayed justice for the victims.
“Those who suffered physical harm, lost their dignity, lost loved ones, had to leave homes they’d lived in for many years, have been waiting for justice. It’s been a long road to justice. With the process starting tomorrow, we hope they will find justice.”
Answering questions from the packed media briefing, Mr Nderitu rejected a suggestion that the victims themselves were ready to move on and were even pulling out of the case.
He was also asked about the clamour for domestic solutions, and conceded that while there can be many acceptable solutions, “any mechanism not founded on justice is founded on quicksand. Having failed domestically to have our own justice system provide justice for victims, the answer is international justice mechanism”.