Kenyan Deputy President William Ruto must attend all sessions of his trial at the International Criminal Court unless specifically excused, appeals judges ruled on Friday, putting the court at odds with Kenya and the African Union (AU).
Prosecutors promptly requested a similar ruling in the separate case of Kenyan President Uhuru Kenyatta, who had like Ruto been granted blanket permission to be absent for the bulk of his trial.
Ruto and Kenyatta are charged with crimes against humanity in orchestrating a wave of violence after an election in 2007, but the cases have fed a growing sense of grievance among Africans, who say the court is picking unfairly on their continent.
Kenya is both East Africa’s largest economy and an ally of the West against radical Islam in the region, especially neighboring Somalia. Ruto and Kenyatta say at least one of them must be in Kenya at all times to ensure it is properly governed.
The decision to excuse them had promised to ease some of the African resentment. But ICC President Sang-Hyun Song ruled on Friday that Ruto’s absence “can only take place in exceptional circumstances and must not become the rule”.
ICC Prosecutor Fatou Bensouda then asked the court also to set aside a decision to excuse Kenyatta – who has been urged by the AU to boycott the court – from continuous presence at his trial, which starts on November 12.
Clair Duffy, a senior lawyer at the International Bar Association, noted after the Ruto decision that “the application of identical laws arises in respect of Kenyatta’s case”.
The post-election violence killed 1,200 people and uprooted tens of thousands from their homes in early 2008.
In practice, Ruto could still stay away from court for much of his trial, but judges will need to authorize each absence. They promptly did so on Friday, giving him permission to miss the first three days of next week, after his lawyers said he was needed at home to fill in for Kenyatta, who will be in Rwanda.
Ruto’s trial had already been adjourned last month to let him return home to deal with the aftermath of an Islamist militant raid on a Nairobi shopping mall that killed 67 people, including Kenyatta’s nephew.
Ruto’s lawyer, Karim Khan, pledged that Ruto would continue to cooperate with the court. But a political ally of Ruto’s in Nairobi condemned the ruling as “political”.
“I will bring a bill in parliament next week to facilitate our plan to disengage (from the ICC),” said Aden Duale, the majority leader in Kenya’s parliament.
The AU has said it will ask the U.N. Security Council to order Kenyatta’s trial to be deferred.
U.N. Security Council envoys have said they will consider a request, but note that the Council turned one down in 2011, and also rejected a request in May for the two cases to be terminated because it had no such prerogative.
A diplomat with a senior Council member state said that, when the issue was discussed informally in May, eight members were opposed to deferral of the cases and the other seven were more sympathetic. The diplomat said the situation probably had not changed since then.
President Macky Sall of Senegal added his voice on Friday to a chorus of African criticism of the ICC, which has charged only Africans in its first decade of existence.
He told the Swiss newspaper Neue Zuercher Zeitung that the ICC’s charges threatened to “decapitate” Kenya.
For his part, Ruto said he would fight to clear his name despite Friday’s setback.
“Circumstances not withstanding we will triumph because the truth, the law and most of all God is on our side. Be blessed,” he said on his official Twitter feed.