President Kenyatta has been ordered to travel to The Hague on October 8 for a status conference.
The ICC judges rejected his request to be excused from attending the trial or for postponement of the hearing.
Now that he has been ordered to appear in person, if the President fails to do so, the court might issue a warrant of arrest against him.
They also ruled that he could not follow the proceedings via video link.
“The chamber notes that the matters to be discussed at the status conference, arising from the notice and the responses thereto, directly impact the interests of the accused, of victims and of witnesses.
“The chamber, by majority, finds that the requirements of justice in this case necessitate the physical presence of the accused at the court,” judges Robert Fremr and Geoffrey Henderson said.
ONE JUDGE DISSENTS
The presiding Judge Kuniko Ozaki partially dissented.
The majority of the judges also said the defence’s arguments that the President will be attending a regional meeting does not hold water given that October 8 would have coincided with the opening of the trial.
“Therefore, the chamber is not persuaded by the alternative request for an adjournment of the status conference,” the ruling stated.
President Kenyatta’s defence had argued that he will be attending the East African Community Northern Infrastructure Summit on October 8 in Kampala and Uganda’s Independence Day on October 9, both of which he argued are extraordinary public functions.
The ICC’s ruling now places President Kenyatta in a fix, given that the African Union had, in an extraordinary session on October 12, 2013, advised him or any serving African head of state not to honour the summons to appear before the ICC.
The AU summit in Addis Ababa, Ethiopia declared:
“To safeguard the constitutional order, stability and integrity of member states, no charges shall be commenced or continued before any International Court or Tribunal against any serving AU head of state or government or anybody acting or entitled to act in such capacity during their term of office.”
The summit also advised President Kenyatta not to appear before the ICC until the UN Security Council and the ICC address the concerns the AU and its member states raised.
Kenya, which was seeking the continent’s backing to disregard the ICC over claims that it was only targeting African leaders, had sought the summit’s backing.
The ICC could be called upon to issue arrest warrants if President Kenyatta ignores the summons.
IMPLICATIONS OF A WARRANT
The impact of the arrest warrant is that he would not be able to transact international business, as his international travel would be severely restricted.
The ICC would alert all states that have signed the Rome Statute that established the ICC to arrest him.
“He will become a pariah head of state like President Omar Al Bashir, whose international travels are limited for fear of arrest and being rendered to the ICC detention for jumping bail,” Nairobi lawyer Antony Oluoch said.
The executive director of the International Centre for Policy and Conflict (ICPC), Ndung’u Wainaina, said the decision was historic as the court has reasserted its authority.
“ICC applies equality before the law. There was no way it could apply different standards. The judges set conditions on when an accused is required in court and which (Deputy President) William Ruto has respected. Uhuru enjoys no special status before the eyes of the court,” Mr Wainaina said.
On the other hand, if he honours the summons, he would be the first sitting head of state to appear before the ICC as an accused.
TRAPPINGS OF POWER
Honouring the summons also means that he would momentarily forgo the trappings of power, which he enjoys as head of state.
For instance, his security detail and the coterie of advisers that are always by his side would not be allowed inside the courtroom.
It will be the third time that Mr Kenyatta would be at the ICC while facing the crimes against humanity charges arising from his alleged role as a key perpetrator of the 2007/08 post-election violence.