THE ICC cases against President Uhuru Kenyatta and Deputy President William Ruto will not be conducted at the same time, the judges hearing the Ruto case said yesterday,
They said it would be disruptive since two of the judges are hearing both cases.
"Two of the judges sit in both Chambers and having the cases at the same time would have them not concentrate well. It is therefore our preference that the two cases run on alternating periods of the judicial calendar, say four weeks for one case," said Chile Eboe-Osuji of Nigeria, the presiding judge in the case against Ruto and radio journalist Joshua wrap Sang.
He was speaking yesterday's status conference preceded the start of the trial today.
The decision came just hours after ICC registrar Herman Hebel and prosecutor Fatou Bensouda told a press conference that the judges had the final decision on the trial calendar.
Hebel said that it will be then up to the Uhuru and Ruto to decide whether to attend.
Bensouda said that Uhuru and Ruto were "just like any other person charged with serious crimes against humanity."
"We are not proceeding on the basis of their positions. In my eyes, Mr Ruto is like any other person charged with crimes in this court. He is required to be continuously present by the statute. We will strictly go by the rule," she said.
On Sunday, Uhuru said he could not leave Kenya at the same time as his deputy..
"I speak now not as an accused person but as the President of the sovereign republic of Kenya. If you want us to continue to co-operate with the ICC process, let me make it crystal clear that when Ruto is at The Hague, I will be here and when I am at The Hague, he will be here," a visibly agitated Uhuru said.
On Friday the ICC public information unit released a case calendar showing that the two cases would be held simultaneously so that both of them would be out of country on December 12 when Kenya celebrates 50 years of independence.
"Why are they including the dates of the President's trial when the judges handling the case are yet to draw up the schedule? The calendar also shows that the Deputy President's trial will be running in November and yet the judges are clear they will give the schedule after the second session ends on November 1," a State House source told the Star on Sunday.
Ruto's lead counsel Karim Khan said it was unlikely that the cases would be heard at the same time.
"Away from the Kenyan constitution which does not foresee their joint absence, the reality is that this court has only one courtroom," he told journalists at The Hague.
Hebel described as "regrettable" recent parliamentary motion to withdraw from the Rome Statute saying it was sending "the wrong message."
Hebel said it was three individuals, and not Kenya, who were on trial.
Bensouda described the start of the trial as a "milestone" and commended the witnesses and victims who she said "resisted huge bribes" in their pursuit of justice.
"It is not for me to sit here and say whether my case is weak or strong. I will present my case starting tomorrow and the judges will decide," she said.
Khan dismissed as "nonsense" Bensouda's claims that witnesses have been bribed or intimidated. He said the case against Ruto was a "parody of justice."
"The case will fall apart because of the wrong target and grossly deficient investigations by the office of the prosecutor," he said and warned witnesses that they risked jail if they lied to the court.
Sang's lawyer Katwa Kigen said the prosecution had sabotaged his defence.
"He is a victim of the might and weight of the prosecutor," Kigen said.
Lawyer Wilfred Nderitu, representing the victims, said they were elated that finally, after more than six years, they were finally going to get justice.
"They have been unable to 'accept and move on" despite the pressures they have been under to do so," he said.