Muvunyi made two additional written submissions, after the appeal hearing, relating to (i) a response to a question raised by one of the Judges about whether the omission of a certain fact from the Indictment rendered it defective for lack of notice; and (ii) mitigating factors in sentencing. The Prosecution objected to these submissions and requested that they be expunged from the record.

5. In the Appeals Chamber’s view, Muvunyi’s submission in this respect does not constitute an attempt to vary the grounds of appeal pursuant to Rule 108 of the Rules, but is instead an attempt to clarify and expand upon an existing ground of appeal based on the question raised by a Judge during the Appeals Hearing. The Appeals Chamber further notes that, if it had considered that additional submissions were necessary for the fair determination of the appeal, it would have asked Counsel to provide further submissions on that question. However, in the absence of a specific request by the Appeals Chamber or prior leave granted by it, there is no provision in the Rules under which a party may make written submissions after the hearing of the appeal for the purpose of clarifying issues raised during the hearing. Counsel for Muvunyi had the opportunity of addressing this issue during the Appeals Hearing in response to the question, but did not do so. The Appeals Chamber did not request further submissions nor did Counsel for Muvunyi seek leave to make additional submissions on this point.[1] The Appeals Chamber is therefore satisfied that this submission should not be considered further.

6. [. .  .] Muvunyi has not previously raised this issue[2] nor was it raised during the Appeals Hearing by the Judges or either of the parties. In the Appeals Chamber’s view, this therefore constitutes a new submission going beyond the existing grounds of appeal.

7. The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal”. Such requests must be made “as soon as possible after identifying the new alleged error”[3] of the Trial Chamber, and must “at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 [of the Rules] is satisfied”.[4] In the present case, the Appeals Chamber is not convinced that Muvunyi has properly sought leave to amend his grounds of appeal, nor that he has shown good cause. The Appeals Chamber is therefore satisfied that this submission should not be considered further.

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RECALLING that the Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal or if it has made a specific request to the parties for further information;[1]