On 18 October 2013, Trial Chamber V(b) of the International Criminal Court (“ICC”), by majority, ruled, in response to the Defence for President Uhuru Kenyatta’s 23 September 2013 ‘Defence Request for Conditional Excusal from Continuous Presence‘, that:
“In the circumstances, it is correct to conditionally grant the Defence request of the Chamber to excuse Uhuru Kenyatta from continuous presence at trial, in order to permit him to discharge his functions of state as the executive President of Kenya; while his trial proceeds, as it must do, in this Court.
5. The conditional excusai is in the following terms:
a. Mr Kenyatta must be physically present in the courtroom for the following hearings:
i. the entirety of the opening statements of all parties and participants;
ii. the entirety of the closing statements of all parties and participants;
iii. when victims present their views and concerns in person;
iv. the entirety of the delivery of judgment in the case;
v. the entirety of the sentencing hearings (if applicable);
vi. the entirety of the sentencing (if applicable);
vii. the entirety of the victim impact hearings (if applicable);
viii. the entirety of the reparation hearings (if applicable); and
ix. any other attendance directed by the Chamber.
b. Mr Kenyatta is excused from continuous presence at other times during the trial. This excusai is strictly for purposes of accommodating the discharge of his duties as the President of Kenya. The resulting absence from the trial must therefore always be and seen to be directed towards performance of those duties of state.
c. The majority of the Chamber further requires the Kenyatta Defence to file with the Registry, no later than one day after the time-limit for request for leave to appeal this Decision, a waiver signed by Mr Kenyatta, in the form attached as an annex to this Decision.”
A decision on the same issue is currently under appeal in the case of Prosecutor v Ruto et al., which is also concerned with the 2007-2008 Kenyan post-election violence . It is expected that the ICC Appeals Chamber will deliver its judgment orally on 25 October 2013 at 09:00 CET.