The defence teams of President Uhuru Kenyatta and his deputy William Ruto have been directed to stop using their official titles during their filings at the International Criminal Court.
President Kenyatta was also told to rein in his supporters to stop intimidating witnesses or face the consequences.
The court said the charges facing President Kenyatta and Mr Ruto are personal.
“As a preliminary matter, the Chamber notes that in recent filings, including the one currently under consideration, the Kenyatta defence refers to Mr Kenyatta and their team repeatedly by using his title as President,” an ICC communication says.
The court said it had already issued a caveat that the Deputy President of Kenya was not on trial before it.
“The accused person over whom the Chamber is exercising jurisdiction is William Samoei Ruto. He is being tried in his individual capacity for allegations of crimes made against him personally,” the court said.
It noted that the charges against Mr Ruto were laid and confirmed and the case transferred to the Trial Chamber for his trial — “and indeed an initial date for the trial was once set — before he was elected into office as Deputy President of Kenya.”
“Although Mr Ruto has come into that office in the meantime, while his trial remained pending, let it not be understood that the Deputy President of Kenya is on trial in that capacity. There is a material difference in the law in this regard,” the ICC said.
It said the same applies to President Kenyatta and that the charges facing him are in his personal capacity and not in his capacity as President.
“In the circumstances, the Chamber does not consider the use of this title appropriate in filings in this case. The Chamber, therefore, directs the Kenyatta defence to refrain from including Mr Kenyatta’s official title in its filings,” the court said.
It added: “Fundamental to the finding in this case is the understanding that the dignity or status of Mr Kenyatta as President of Kenya is not what is at issue in holding that there are exceptional circumstances that justify his conditional excusal from continuous presence at trial. Rather, the finding is based on the attendant obligations and responsibilities of such an office.”
The ICC said Mr Kenyatta cannot be stopped from facing trial at The Hague just because he is President.
“It is rather an argument that he may be excused from continuous presence during that trial which must, under the terms of Article 27 of the Statute, proceed notwithstanding that he is the executive President of Kenya,” it said.
It gave an example of the criminal trials of Prime Minister Berlusconi of Italy, while he was in office, that continued in his absence, when Milan courts rejected his claims that there was a “legitimate impediment” that should have prevented the trial from proceeding.
The court said President Kenyatta should make every effort to ensure that victims and witnesses are not intimidated or interfered with.
“Desirable actions in that connection should include impressing upon his supporters — regardless of his own awareness of their actual links to him — the need to refrain from any conduct or utterance that may reasonably create intimidating or harassing atmosphere for victims and witnesses,” the ICC said.
It warned that salutary actions “in that regard” may have obvious benefits in mitigation of sentence, were the prosecution to succeed in establishing guilt in the end at the requisite standard of proof.