President Uhuru Kenyatta and his deputy William Ruto will not be required to be physically present at the ICC but can be represented by counsel after the Assembly of States Parties amended its rules.
The amendment was part of two changes Kenya managed to push through as the 12th ASP came to a close at The Hague.
“We have achieved a fundamental change in how the ICC functions. This is a major victory for the Kenyan team. It is significant in how the ICC engages,” Foreign Secretary Amina Mohamed said after the Thursday plenary session.
She told journalists that the Kenyan team came to The Hague with important goals “and we are glad to announce that we have nailed them both.”
She said securing excusal from trial at the International Criminal Court (ICC) for Kenyatta and Ruto was key for Kenya.
“As you are aware, the ICC had always argued that the accused person must be physically present throughout the trial. We now have a new rule that says that is in fact not the case.”
The new rule 134 (4) acknowledges that the President and Deputy President are duly elected by the Kenyan people and have a mandate to govern even while meeting their obligations to the court.
“As you know, we had a mandate from the AU pursuant to its resolution that no sitting heads of state or government, their deputies or people mandated to hold such offices may appear before the ICC or indeed any other court while they remain in office,” Mohamed said.
She explained that Kenya had also now given notice to the UN Secretary General on immunities of heads of state and government under Article 27.
“We expect such a meeting to be convened after the 90-day notice period expires in the first quarter of next year.”
The decision significantly comes after the ICC overturned its earlier decision excusing Kenyatta from continuous presence at trial.
The new rule means that Kenyatta’s lawyers can now file fresh applications for his excusal pursuant to the amendment.