ICC judge Chile Eboe-Osuji has confessed that statement's of African Presidents and African Union leaders influenced him to allow President Uhuru Kenyatta partial presence in his trial.
In a long "concurring separate opinion" to last Friday's decision in favor of Uhuru, Eboe-Osuji also justified why views of leaders of states should not be ignored in judicial work of the court.
He said views of leaders of states often comprise state practice that are, in turn, an ingredient in the formation of customary international law. He said Vienna Convention on the Law of Treaties also requires such views to be considered when judges interpret treaties.
"It is, therefore, not only naïve for the judges and the prosecutor of this Court to ignore the views of heads of state in important questions of the day in international affairs, but it is also possibly wrong, as a matter of law, to do so," he said.
He said the views of South African President Jacob Zuma and Ethiopian Prime Minister Haile Mariam Desalegn pressing for allowing of Uhuru to skip sessions "should be taken into account in the present case. "
He said their views calling for compromise from the ICC as regards Uhuru and deputy President William Ruto's attendance is also consistent with views of William Schabas, a senior scholar of foremost eminence in the field of international criminal law.
Eboe-Osuji said that both he and fellow judge Robert Frerr were agreed that international law cannot operate in a "politically sterile environment." He said they were also agreed that the court should not act as "automatic slot-machine, totally divorced from social and political realities of the international community."
He said it is "clear evidence" that state parties who have expressed themselves on the matter prefer that Uhuru and Ruto be allowed partial presence to their trials.
"Notably, among African States Parties, who form the largest block of States Parties to the RomeStatute, there is, as noted earlier, evidence of an emergent trend of state practice in favour of discretion in a Trial Chamber to grant a Ruto relief," he said.
The judge observed that other state parties had not questioned the correctness of allowing Ruto the relief. Quoting an internal law expert, Eboe-Osuji said that the absence of opposition from other states can indeed pass for agreement with the African position.
He said jurists of eminent stature who have served in the International Court of Justice and International Criminal Tribunal for the former Yugoslavia have also advocated for judges to consider statements of world leaders.
"It is also a matter of ordinary principles of politeness that people should be made to know that they have been listened to, when they have registered an anxious complaint and made a request," he said.
The judge also addressed the AU resolution that no charges shall be commenced or continued before any international court against any serving head of state or government in order to safeguard constitutional order and stability of their states.
He said the first part of the resolution is inconsistent with the rule of law in many ways. He said its contrary to the principles of international law- international customary law, the Rome Statute and the Kenyan constitution as well.
Eboe-Osuji also differed with the AU saying justice delayed is justice denied. He said the resolution ignores the fact that the crimes took place in 2007 and that if the court were to accept it, justice would be delayed up to 15 years if Uhuru is re-elected.
"No victim should have to wait for that long before a trial begins, when it could have begun earlier. Memory does fade. Witnesses do die or become infirm. Evidence does deteriorate," he said.
He however agreed with the AU on the latter part of their resolution (to safeguard constitutional order and stability of their states) saying it is the reason why the court allowed both Ruto and Uhuru the relief sought.
On whether the court is targeting Africa, the judge conceded that it is "judicially noticeable" that the current docket of the ICC is African situations. The judge said although explanations have been made, they needed to be made "with some emotional intelligence."
He said the claim that most of the court's cases were referred to the Court by African leaders themselves is deficient in emotional intelligence.
"For one thing, its repeated use has not dispelled the complaint. Second, it may leave those who have referred the cases in question to feel awkward to know that they are the only ones referring cases to the Court when no one else is doing so according to the pact agreed upon in Rome," he said.
Eboe-Osuji nevertheless called for balance in the court's docket to avoid weakening the court owing to such perception. He recalled that the last big genocide occurred in Africa. He said a weakened ICC would not be able to stop such recurrence either in Africa or elsewhere.
He said the "best of both worlds" lies in the regime of excusal granted to Ruto and Uhuru by their respective chambers. He said the AU's promise that their request was premised on need to allow Uhuru and Ruto to lead their country in consolidation of peace and reconciliation "is truly worth consideration." Yesterday, the Office of the Prosecutor (OTP) said they are still studying Friday's decision.