Ruto's Road to September trial, all systems go

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The international criminal court is on all systems go to begin the lengthy trial of Kenya's Deputy President William Samoei Ruto and Former Radio journalist Joshua Arap Sang in September .
According to a press release by The Hague based ICC in April, the Deputy President application to appear via video link seems to have been technically denied and therefore the suspect would appear in person at the ICC trial chamber v.
"On 31 March 2010, Pre-Trial Chamber II granted the Prosecutor's request to open an investigation proprio motu in the situation in Kenya, State Party since 2005. Following summonses to appear issued on 8 March 2011 in two separate cases, six Kenyan citizens voluntarily appeared before Pre-Trial Chamber II on 7 and 8 April 2011," the release read in part.
Ruto and his Boss Uhuru Kenyatta were confirmed to have a case to battle with on 23 January 2012 after the pre-trial chamber II presided by Ekaterina Trendafilova confirmed their charges.
" Pre-Trial Chamber II confirmed the charges against William Samoei Ruto, Joshua Arap Sang, Francis Kirimi Muthaura and Uhuru Muigai Kenyatta and committed them to trial," the statement said.
With Muthaura's case off the hook, the once Ocampo 6 which.mutated to Bensouda 4 and now three has experienced major hurdles which include massive witness withdraw. The office of the prosecutor dropped the witness number 4 which subsequently affected the Muthaura's case became a beacon of the Uhuru Kenyatta's defense citing the case should rule that the case should go back to pre-trial stage to avoid miscarriage of justice.
"The trial against William Samoei Ruto and Joshua Arap Sang is scheduled to start on 28 May 2013 and the trial against Uhuru Muigai Kenyatta is scheduled to start on 9 July 2013," the ICC confirmed, a date that was shifted to September 2013.
During the pre-trial conference,the defense of the four suspects cited that the OTP (office of the prosecutor) did not avail the evidence she has and applied to the court to compel her coordinate with the.defense.
The court ruled on matters outlined under Article 64(2) and 3(a) and Article 68(1), on Victims and Witness Unit submission regarding witness preparation.
In their ruling on the William Ruto's case judges Kuniko Ozaki (Presiding), Christine Van den Wyngaert and Chile Eboe-Osuji ruled, 'The Chamber is of the view that non-substantive contact between the calling party and the witness in the 24 hours preceding the witness testimony, while not prohibited, should be appropriate in the circumstances and guided by due regard to professional responsibility.'
The judges noted that the parties did not file submissions on this issue and therefore, from the time the witness begins to testify until the end of the witness' testimony, the calling party's contact with the witness is restricted to its examination in Court, unless otherwise authorised by the Chamber.
'On 29 January 2013 the Victims and Witness Unit ("VWU") informed the Chamber that in order to amend the VWU Unified Protocol on the practices used to prepare and familiarize witnesses for giving testimony as instructed in the Decision on Witness Preparation and the accompanying Witness Preparation Protocol it required clarification as to whether contact is permitted between a calling party and a witness after the completion of witness.preparation,' the ruling read in.part.
The Chamber instructed the VWU to raise this issue in formal filing, and the VWU filed written submissions on the issue on 21 February 2013, following submissions by the defense on the request for more time to get to understand the new allegations from the OTP. The Chamber ruled in their favour by shifting the April 10 and 11 dates to May 28th and July 9 for Ruto and Kenyatta respectively.
Muthaura's lawyer Karim Khan had argued that the office of the prosecutor was dragging the case despite his client willingness of having trials earlier. He had submitted that for justice to be served to his client the office of the prosecutor should disclose the evidence in order to have fair trials.
"We cannot have a fair trial in April if the OTP keeps on hiding some evidence under the table. Without this the office of the prosecutor will make it almost impracticable of the trials beginning at the stipulated time," said Karim Khan.
Khan had cited that the office of the prosecutor had increased the number of charges against his client and seek the indulgence of the chamber to take control of the case citing about 68 percent of the prosecution case is new.
Following the drop of charges on Muthaura, his lawyer Karim Khan now represents Deputy President William Ruto and through him Ruto has ever since requested the chamber to be tried in absentia. Ruto said that he wants to attend the opening and the closing of the trials, all other hearings at which his attendance may be requested by the court and those he could choose by himself.
Karim Khan farther requested the court to alternate the use of the video technology citing that any person at the trial has a right to be represented. Under article 63 (1) and (2) of the Rome statute states that 'The accused shall be present during the trial.And 'If the accused, being present before the Court continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.'
The Rome statute does not really seem to be concerned about their status as President and Deputy President as outlined in Article 27 which deals with Irrelevance of official capacity they hold as Kenya's President and Deputy President.
Under Article 27 of the Rome Statute states that, 'This Statute shall apply equally to all persons without any distinction based on official capacity. In particular official capacity as a Head of State or Government, a member of a Government or parliament,an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.'
The use of the word 'shall' is not optional and therefore the second clause further underscores that 'Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.'
So far Kenya's constitution is in line with the Rome statute under article 143 (4) The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.
So far the registry of the International criminal court has stated that it's impractical to have a Video-link for Uhuru Kenyatta during his July 9 trials terming it as costly and time consuming.
In their submissions by ICC Director of the Division of Court Services Marc Dubuisson on behalf of court Registrar Silvana Arbia on to the judges of the International Criminal Court the court registry have indicated to that it would take at least two months to set up a video-link infrastructure in Nairobi.