ICC prosecutor Fatou Bensouda yesterday applied to have the trial chamber decision granting President Uhuru Kenyatta the right to skip parts of his trial reviewed.
Bensouda wants the court to reconsider the decision or alternatively, grant her leave to appeal the decision. The two-pronged application was made in light of last Friday's appeals chamber decision which overturned a similar decision handed in favor of Deputy President William Ruto.
"The Prosecution submits that it is in the interests of judicial economy and the expeditious resolution of this matter for the Chamber to adopt the first course of action," she said.
She said had the appeals court decision be issued prior to the trial chamber's decision, the judges would not have granted the blanket excusal they did.
In the Ruto appeal, the judges said there was no place for a blanket excusal from trial. They directed that Ruto continue his attendance of the trial and such excusal from be dealt with on a case by case basis.
The request by Bensouda is likely to have an impact on the recent failed attempts by the government to withdraw from the ICC. The bill for Kenya to withdraw from the International Criminal Court has come to a screeching halt.
Uhuru's advisers have reportedly advised that withdrawing from the Rome Statute would be counterproductive for the ongoing cases in the Hague.
The President's case is due to start on November 12 although there is a pending request at the UN Security Council to defer the Kenyan cases. Attorney General Githu Muigai told France 24 radio at the weekend that the Cabinet is yet to discuss the bill to withdraw from Rome Statute.
The National Assembly on September 5 and the Senate on September 10 resolved that Kenya should amend the International Crimes Act of 2008 and withdraw from the ICC.
"So far, the Cabinet has not sat to determine what direction those resolutions will take, so no bill has been discussed yet," Githu said. The AG said that Uhuru has a team of competent lawyers to advise him on ICC matters.
The bill to withdraw from the Rome Statute was to be brought within 30 days of the decision by Parliament but the deadline passed in mid-October. Leader of Majority Aden Duale yesterday insisted that the bill is still on course and will be published this week.
Duale said Kenya should not remain in the ICC when the US, China, India and Russia are not members. On October 15, the AG wrote to the ICC saying there was no bill to withdraw from the Rome Statute and the Cabinet is therefore technically unaware of the move.
He said a motion is not enough to withdraw from a statute. "The government of Kenya wishes to notify the chamber that there has not been to date any cabinet memorandum prepared in regard to Kenya's withdrawal from the Rome Statute. No Bill has been tabled before Parliament. No debate of any Bill has taken place and no Bill has been presented to the president for assent. Presently therefore the status of the treaty is intact," he said.
Githu reminded the court of separation of powers between the legislature, executive and judiciary and promised to alert the court "should there be any material change in circumstances."
On December 22, 2010, days after former ICC Chief Prosecutor Louis Moreno Ocampo announced the initial six suspects, Parliament also passed a motion calling on the government "to take immediate action to have the International Crimes Act repealed and further that the government takes appropriate action to withdraw from the Rome Statute."
A Central MP told the Star that withdrawal would be counterproductive in view of Uhuru's latest bid to have the UN Security Council accept his petition for a deferral.
"The passing of the motion was more like a warning shot than an actual shot. The point was made and made in such a way that the matter can be revisited if the President is not excused from trial as requested," he said.