Nairobi — President Uhuru Kenyatta has filed a fresh application seeking to be excused from attending his trial before the International Criminal Court, set to begin on November 12.
In the request lodged as a terror siege at the Westgate mall entered its third day, President Kenyatta says the new bid supersedes his previous plea, which has yet to be adjudicated upon.
"The defence for President Uhuru Muigai Kenyatta requests that the accused be conditionally excused from continuous presence at trial and that his physical presence is required only in respect of the opening and closing of trial and delivery of judgment before the International Criminal Court."
His lawyers Steven Kay QC and Gillian Higgins argue that in the alternative, President Kenyatta should be allowed attend the trial continuously by means of video link.
They assert that his election as President of the Republic of Kenya on March 4 constitutes a significant change in circumstances that necessitates the fresh consideration of the issue, "particularly in light of his extraordinary and exceptional roles and responsibilities as an incumbent Head of State."
They add: "The people of Kenya were fully informed about the ICC proceedings when they elected President Kenyatta to lead the nation, and, having done so, they have a legitimate expectation that their country's democracy should be respected by the wider international community."
The application came as Trial Chamber V (a) allowed Deputy President William Ruto to travel to Kenya for a week, to handle the Westgate terror crisis.
The lawyers have reminded the judges that on 14 February 2013, President Kenyatta participated in a status conference via video link, during which they were asked to file written submissions in case they wanted to use video link on a regular basis.
President Kenyatta's lawyers contend that he must perform duties as Head of State on behalf of the people of Kenya on a daily basis.
"In addition to being a figurehead and symbol of authority for the nation, the duties of an incumbent Head of State are both important and extraordinary in the management of the State of Kenya and its people."
They have told the judges that Article 132 of the Constitution of Kenya sets out the extensive duties of the President, which include the chairing of cabinet meetings, the direction and co-ordination of the functions of ministries and government departments, and fulfilling his role as a principal member of the National Executive of the Republic.
"It is a matter of fundamental importance to Kenya that the issue of attendance at trial is addressed in a way that permits its Head of State fully to discharge his constitutional duties. The exceptional nature of President Kenyatta's position may even be distinguished from that of Mr Ruto, the Deputy President, as the office of President inherently carries greater responsibility."
They also take note of the development where Ruto was allowed a weeklong break to travel back to Kenya.
"Trial Chamber V (a) has recognised the need to accommodate important political duties by allowing Mr Ruto to return to Kenya to deal with the terrorist attack and national tragedy that unfolded on 21 September 2013."
They finish their arguments saying President Kenyatta is satisfied he will adequately manage his defence by delegating responsibility to his legal team.
"International criminal trials are complex, lengthy and heavily rely upon the availability of modern technology to record and publicise the proceedings worldwide. President Kenyatta is fully aware that he will be able to follow the proceedings through transcend and access live transcripts in Kenya through his legal team without being physically present in court."