NAIROBI, Kenya, Sep 19 – A judge at the International Court who is said to have promised Kenya that an amendment to Rule 68 will not apply in the case against Deputy President William Ruto and journalist Joshua arap Sang has withdrawn from hearing an appeal challenging its application.
Judge Sanji Monageng Mmasenono wrote to the ICC Presidency on Wednesday asking to be excused from hearing the appeal challenging use of prior recorded statements of five witnesses in the Ruto and Sang case.
“The presidency hereby decides, for the purpose of hearing the appeal, to temporarily attach Judge Peter Kovacs currently assigned to the Pre-Trial Division, to the Appeals Chamber,” ICC President Judge Silvia Fernandez de Gurmendi stated.
In her application, Mmasenono, explained that her decision was informed by media reports alleging that ICC officials had promised Kenya that amendment of Rule 68 of the Rules of Procedure and Evidence would not be used retroactively.
“The reason for this request centres on allegations reported in various news articles about assurance given by court officials. The alleged assurances concern the non-retroactive application of the rule change to the Kenyan cases,” she said.
Judge Mmasenono denied that such a promise was made to Kenya during the 12th session of the Assembly of State Parties (ASP) held in The Hague in 2013.
However, having been among the court officials who were at the session that adopted the amendment, she said, she opted out for purposes of ensuring doubts of her impartiality in the Ruto, Sang appeal do not arise.
“It is my considered opinion that my discussions with various state parties on the proposed amendment in the process leading up to its adoption may be construed as having a bearing on this appeal,” she explained.
Trial Chamber V (a) allowed Ruto and Sang’s defence to appeal a decision that had allowed ICC prosecutor Fatou Bensouda to use prior recorded statements of five of her witnesses who had recanted their evidence.
Ruto and Sang as well as the government through Attorney General Githu Muigai have argued that ICC officials promised that the amendment to rule 68 would not be applied retrospectively.
READ: Witness rule can’t be used in Ruto Hague case – AG
Judge Monageng however, in her application disagreed that such an agreement was made during the ASP. “…these allegations to be entirely without foundation or merit…”
Meanwhile, Trial Chamber V (a) has allowed Ruto and Journalist Sang more time within which to file a motion of no case-to-answer.
The defence teams had only 14 days within which to file a motion of no-case-to-answer after the prosecutor closed her case last Thursday.
Following the ruling on Friday, Ruto and Sang have until October 23, within which to file the motion.
The judges further increased the page limit of the motion from 40 pages to 100 pages.
Oral submissions will be heard during a hearing slated for November 24.