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The ICC judge who allegedly assured Kenya that a controversial rule will not be applied retroactively has been knocked off a pending appeal over the same matter in the case against Deputy President William Ruto.
Court President Silvia Fernandez de Gurmendi announced yesterday that appellate judge Sanji Mmasenono Monageng will not sit in the appeal filed by Ruto challenging retroactive use of Rule 68 of the Rules of Procedure and Evidence.
The rule, which was amended in an Assembly of State Parties (ASP) meeting held in November 2013, introduced new avenues through which prior-recorded testimonies can be admitted as evidence in court.
Monageng, a Batswana, had on Wednesday this week requested to be relieved from hearing the appeal after he was implicated of being part of the ICC group which assured Kenyan delegation at the ASP that the rule will not be used retroactively.
She was the chair of ICC's Working Group on Lessons Learned (WGLL) at the time the Rule was amended. Last month, trial judges hearing the case against Ruto deployed the amended Rule 68 against him and admitted prior-recorded testimonies as evidence in his case.
"The Presidency hereby decides, for the purpose of hearing the appeal, to temporarily attach Judge Péter Kovács, currently assigned to the Pre-Trial Division, to the Appeals Chamber," Gurmendi said in the decision endorsed by Judges Joyce Aluoch (First Vice-President) and Kuniko Ozaki (Second Vice-President).
She said in selecting Kovacs, lots had to be drawn from a roster of eligible replacement judges. Accordingly, the Appeals Chamber to hear Ruto's appeal will be composed of Kovacs, Gurmedi herself, Christine Van den Wyngaert, Howard Morrison and Piotr Hofma?ski.
In her application, Judge Monageng cited media reports on assurances given by court officials prior to the adoption of the proposed amendment to rule 68.
"While I consider these allegations to be entirely without foundation or merit, it is my considered opinion that my discussions with various states parties on the proposed amendment in the process leading up to its adoption may be construed as having a bearing on this appeal... Accordingly, I request to be excused from the present appeal ahead of any concerns being raised as to my impartiality," she said.
Article 41(2) (a) of the Statute provides that a "judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground".
Meanwhile, ICC trial judges yesterday extended the time limit upon which Ruto and his co-accused Joshua Sang can file their no-case-to-answer motion. They are now required to file the motion by October 23.
They also allowed them to extend the page limits of the motions from the original 40 to 100.
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