By Thomas Escritt and James Macharia
THE HAGUE/NAIROBI (Reuters) - 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).
Ruto, accused along with Kenyan President Uhuru Kenyatta of orchestrating a wave of violence after a 2007 election, had hoped judges would uphold an earlier decision to let him stay away from large parts of his trial.
They say at least one of them must be in Kenya at all times to ensure the country is properly governed. Kenya is both East Africa's largest economy and an ally of the West against radical Islam in the region, especially neighboring Somalia.
"The absence of the accused can only take place in exceptional circumstances and must not become the rule," ICC president Sang-Hyun Song ruled, overturning a decision that had promised to defuse growing tension between the court and Kenya and its allies in Africa.
Trial judges later granted Ruto permission to miss the first three days of next week, after his lawyers said he would be needed at home to fill in for Kenyatta, who will be in Rwanda for a regional summit.
Ruto could still stay away from court for much of his trial, but judges will need to authorize each absence. That decision was hailed as "pragmatic" by a lawyer for the victims of the violence, which killed 1,200 people and uprooted tens of thousands from their homes in early 2008.
Ruto's lawyer, Karim Khan, pledged that Ruto would continue to cooperate with the court. But a Ruto ally speaking from Kenya's capital Nairobi condemned the ruling as "political" and said he would push on with plans to have Kenya quit the court.
"I will bring a bill in parliament next week to facilitate our plan to disengage," said Aden Duale, the majority leader in Kenya's parliament.
Judges last week gave Kenyatta blanket leave to be excused from most of his trial on similar charges, easing a dispute with the AU, which had urged him to boycott the court and asked the U.N. Security Council to defer his trial.
"Today's decision ... shows pragmatism and flexibility," said Fergal Gaynor, lawyer for the victims in the case against Kenyatta. "It means that it will be very difficult for Mr Kenyatta to convincingly argue before the Security Council (for a) resolution to suspend his trial for a year."
U.N. Security Council envoys have said they would consider the deferral request but note that the council had turned down one in 2011 and rejected another in May for the cases to be terminated because the council had no such prerogative.
A diplomat with a senior council member state said that when the issue was informally discussed by members in May there were eight opposed to deferral of the cases and seven "who were more sympathetic to it", and that situation probably had not changed.
The court, which has only charged Africans in its first decade, is unpopular on the continent. In an interview with the Swiss newspaper Neue Zuercher Zeitung published on Friday, President Macky Sall of Senegal added his voice to the chorus, saying the ICC's charges threatened to "decapitate" Kenya.
Prosecutors have not yet appealed against Kenyatta's excusal, which will allow him to attend to his presidential duties on an almost full-time basis even after his trial starts on November 12. But after Friday's ruling on Ruto's case, any appeal they lodge would be more likely to succeed.
"Given the fact that the application of identical laws arise in respect of Kenyatta's case, I would be surprised if the prosecutor didn't seek to appeal the decision in his case too," said Clair Duffy, a senior lawyer at the International Bar Association, which follows the ICC's activities.
Analysts had expected the judges to uphold the ruling that Ruto be excused from trial sessions after they agreed to adjourn Ruto's trial to let him return home to deal with the aftermath of an Islamist militant raid last month on a Nairobi shopping mall that killed 67 people, including Kenyatta's nephew.
Ruto, whom many had expected would be on a flight back to the Kenyan capital Nairobi by Friday afternoon, said he would fight to clear his name despite the 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.
(Additional reporting by Michael Shields in Vienna and Michelle Nichols at the U.N.)