Nairobi — Deputy President William and former radio presenter Joshua arap Sang missed having their ICC trial held in Kenya by a single vote.
A written ruling released by the International Criminal Court on Monday showed that nine out of the 14 judges ruled in favour of a Nairobi sitting, while five dissented.
"Following extensive debate, votes were taken with nine judges in favour of changing the seat of the court to Kenya and five judges against and with nine judges in favour of changing the seat of the court to Tanzania, four judges against and one judge abstaining," the ruling from the ICC Presidency indicated.
But despite getting a majority of judges supporting a Nairobi or Arusha venue, they failed to reach the two thirds majority, 10 votes as required.
"It is highly to be regretted that the votes of five judges (including that of the President of the Court), who did not vote in favour of either of the alternative recommendations, were able to deny the two-thirds majority - that is 10 votes -actually needed to approve the recommendation."
The nine judges who voted in support wanted sessions of the trial held closer home where the crimes happened and to the people affected, which is one of the core considerations supported by the Rome Statute.
They linked their support to the Nuremberg Tribunal held in Germany to try crimes committed during World War II, the Special Court for Sierra Leone in Freetown and the International Criminal Tribunal for Rwanda (ICTR) in Arusha.
They also anchored their support on the Rome Statute provision which permits the court to seat elsewhere apart from The Hague.
The five judges opposed to Nairobi feared that security of witnesses would be at risk due to alleged reports of intimidation of victims and witnesses.
"The judges were acutely concerned that holding proceedings away from the seat of the court, in Kenya particularly, would be against the express will of some of the participants, given that a large majority of victims had maintained that holding the trial in Kenya may be inimical to their sense of security and preferred it to be held in The Hague; whilst the Prosecution, in their revised submission, were opposed to holding proceedings in Kenya amidst security fears, e.g. witness tampering, intimidation concerns and risks to information security," the ICC Presidency indicated in the ruling
They also expressed fears that non-violent demonstrations would be held and that there would be 'moderate risk that the demonstrations could prove too intimidating to members of the prosecution team.'
This was however dismissed on the basis that there have been similar peaceful demonstrations and hence it would be timid for the ICC prosecution to be scared by such.
"It is thus strange to use the risk of peaceful demonstrations as a reason to avoid commencing the trial in Kenya. It is just as strange that international prosecutors would be so psychologically intimidated by peaceful demonstrations outside the courthouse as to be unable to do their job.
The opposing judges were also concerned that the process would be politicised if it came closer to Kenya, in view that it has been extremely difficult for the ICC to persuade Kenyans to separate the ICC cases from local politics.
"The judges were not persuaded that holding the opening statements in Arusha or Nairobi was the best solution, due to an acute risk of politicisation surrounding the commencement of the court's proceedings in the case and of ensuing negative press coverage or anti-ICC demonstrations," the ruling indicated.
However this argument was met with deep criticism.
Another concern for opposing Kenya or Arusha was that Ruto would be undermined as the Deputy President and would also affect the security of witnesses and victims.
That was also dismissed since it would mean "in theory that a Rome Statute State Party would never be in a position to prosecute its political leaders for crimes within the jurisdiction of this court."
Pre-Trial presiding Judge Kuniko Ozaki, who agreed that it would be a risk to witnesses and victims, voted in support of the trial against Ruto and Sang to be heard in Nairobi or Arusha.
Judie is a Special Projects Reporter. She has eight years experience in Journalism in Kenya and Germany. She has scooped awards in Reproductive Health, Population and Development and Gender and Development. She has participated in international conferences in Germany. She has a soft spot for human rights and justice stories.