DEPUTY President William Ruto lost the bid to skip his January 9 trial at the Hague because his lawyers delayed in filing their application.
ICC judges said the application-- made on the basis of the recently amended Rules of Procedure and Evidence -- was made three weeks after the amendment had been passed and less than a month before the trial was to resume.
Ruto's lawyers filed their application on December 16 giving the court little time to deliberate and make a decision on the matter.
The three judges-- Chile Eboe-Osuji, Olga Herrera Carbuccia and Robert Fremr -- were unanimous in their decision that Ruto must show up at the Hague on January 9 and continue attending his trial until they make a decision on his application to be excused.
"The chamber notes that the request was made about three weeks after the adoption of the rule and less than a month before the hearing is expected to resume. Had the request been filed earlier, the chances for its consideration before the hearing resumes would have been greater," the judges said.
Ruto's application was made pursuant to new Rule 134quarter (Excusal from presence at trial due to extraordinary public duties) which was adopted during the Assembly of State Parties to the Rome Statute held in November.
Under the new rule, an accused who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only.
The accused must waive their rights to be present. The chamber is required to 'expeditiously" consider the request and "shall" grant it if it is in the interests of justice.
"The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time," the rule says.
In their decision, the judges extended the time within which the prosecution should respond to Ruto's application up to January 9. Ruto's defence had opposed any extension insisting that the new rule is clear that the request must be expeditiously considered.
"The chamber is of the view that, in the circumstances, an extension by a few days will not prevent the chamber from considering the request expeditiously as required by Rule 134quarter of the Rules," they said.
It would be interesting to know whether the prosecution will oppose or support the application. Previously, the prosecution has objected to such requests in the past arguing that Article 63 of the Rome Statute demands the accused to be physically present on trial.
While the new rule was admitted by the ASP, it did not amend the statute which is what the Kenya with the support of other African countries who are member states to the Rome Statute wanted to achieve during the November meeting.