Tuesday, 2 February 2010- Things get tense between the Defence and the Prosecution
The Prosecution team is privy to some relevant information regarding the Defence's witnesses (03 and 04). According to a document entitled 'investigation notes', these witnesses are somehow linked to Prosecution Witness 297. This document contains information on communications the Prosecution had with the witnesses during the time they were collaborating with them. The Prosecution is obliged to disclose this sort of information to the Defence in a timely manner. In this instance, the Defence complains, the Prosecution has not fulfilled their obligation.
"Ms. Mabille if you wish you are entitled to discuss this information with Witness 03 before he is called," says Presiding Judge Fulford to the Lead Counsel. Ms Mabille, joined on the first bench by Mr. Desalliers and Mr. Biju-Duval, confers with her colleagues. The accused, Mr. Thomas Lubanga is also in conversation with his lawyers.
The Defence decides not to adjourn. Such a decision would "upset" Witness 03 and would impose a long delay on proceedings. Ms. Mabille wants the Chamber to know, however, that the Prosecution has failed to meet its disclosure obligations. "This disclosure obligation arises not only for these witnesses," says the Counsel. "It is a general problem."
The second Defence witness, Witness 03, is called to enter the room but the blinds remain up. He is completely visible. Smartly dressed in suit and tie, the witness takes the stand. Maki Dera Joseph, resident of Bunia in Ituri District, also known as "Yafula", testifies publicly as a part of the defence of Thomas Lubanga Dyilo.
The Witness avoids eye contact when he answers the questions. His eyes are fixed on the ground as if he is trying to calm his nerves. With his hands on his lap, he waits for the next question. Patiently.
Ms. Mabille asks Witness 03 about somebody who seems to be familiar. She mentions a name. "Do you know him?" The individual collaborated with the Office of the Prosecution in dealing with certain witnesses in DRC. Ms. Samson quickly raises her concerns. She is worried that mentioning the name of this individual in public session will put him and the witnesses he dealt with at risk. All that been heard so far in relation to this individual is therefore redacted and the Chamber formulates an unusual petition to those sitting at the Public Gallery. "I ask the members of the Public Gallery to not disseminate this name beyond your notebook," says Judge Fulford. From now, this individual must be referred as "social worker."
Ms. Mabille objects, arguing that this will confuse Witness 03 but she proceeds anyway.
"Yes, I know this person," says the witness. "Do you remember the first person who talked to you about him?" asks the Counsel. Witness 03 does not understand the question. Names and identities seem to be confused in his mind. "You refer to a ´social worker´. This is complicated" says the witness. "I would like you to understand fully my testimony." Ms. Mabille and Judge Fulford exchange a knowing glance.
"Private session please" says Judge Fulford.
The name cannot be mentioned in public anymore, a fact that further complicates the Defence examination. Witness 03´s testimony is heard almost entirely in private session.
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