Friday, 5 March 2010- Prosecution unaware of witness´s membership of the UPC
The Defence team calls the 7th witness, a former UPC soldier whose account catches the Prosecution off guard: according to Ms. Nicole Samson, the information about the witness´s ties to Lubanga´s group has been "deliberately removed" from the summaries the Defence provided to the OTP.
It appears that there has been a mistake on the Defence´s part and not a change in the witness´s testimony. The first summary indicates that the witness belonged to the Armeé du Peuple Congolais (APC), while in the second summary the witness´ membership of the UPC has simply vanished. In light of the circumstances, Ms. Samson feels she cannot cross examine the witness and asks the Chamber to postpone her intervention. The Prosecution needs time to explore the information that has just come up. The three Judges confer for seconds. "We are very worried about this," says Judge Fulford. The Prosecution recently submitted the same request for the preceding witness. "If this is repeated, the delay of this trial is simply unacceptable," says the Presiding Judge, who thinks a Counsel must be able to cross examine any material even without prior notice.
The application is granted with reluctance, and Ms. Samson uses the last minutes of the session with some general questions about the witness´s role in the UPC and the reasons that led him to join Lubanga´s group.
"I could no longer stay at home, there was fighting everywhere. This situation forced me to join the UPC," explains the witness. He had to defend his comunity.This young man aged 25, of the Hema ethnic group, was just out of his teens when he became a soldier in the Lubanga militia in 2002. He served as a bodyguard of Bosco Ntaganda´s brother, the former Deputy Chief of the General Staff of the Forces Patriotiques pour la Libération du Congo (FPLC), the UPC´s armed wing. "Chief Khawa [Panga Mandro] was the Supreme Commander. Under him you had Bosco [Ntaganda] and [Floribert] Kisembo. Those were the highest ranks in the military structure," says the witness.
The witness explains to Ms. Samson that in 2007 he met a man called Mr. Mbuna. The witness knew him as "a wise man" of his village. Mr. Mbuna was the Defence investigator in Ituri. "He told me that some lawyers wanted to talk to me," explains the witness. He says he did not notice anything strange about such an encounter. "They contacted me because they knew I was living with Madam X and therefore I was a soldier," says the witness.
Madam "X" is mentioned in different occasions during his testimony but her involvement in the case remains unclear. According to the witness, the woman was a soldier of the Armeé du Peuple Congolais (APC), the military wing of the Rassemblement Congolais pour la Democratie/Kisangani (RCD/K) led by Wamba dia Wamba, the then Governor of Ituri. They met for the first time in the battle of Mahagi, where the witness fought with the UPC. Afterwards in Bunia, they saw each other regularly. "We had a good relation," he says. Madam "X" was about his age. "Maybe I am one year older than her," says the witness.
The daily session also brings up relevant Defence´s demands which need the Chamber´s attention:
Translation problems:
The Defence says they have identified "serious court reporting and translation problems," in the course of certain testimonies. "There are uncertainties in meanings and omissions," says Mr. Biju-Duval. "The interpreters are doing an excellent job, however even the best interpreter in the world cannot meet the demands of a trial," says the Lawyer. "We have to look for a solution to this problem. We cannot continue in these conditions. It jeopardizes the quality of the testimonies in court."
In the search for a solution, the Defence has requested the video recordings of those problematic testimonies. But the tapes can currently only be provided with the witness´s voice distorted, an option which seems not to fully satisfy Lubanga´s team.
Disclosure obligations:
The Defence is unhappy with the disclosure recently done by OTP as regards certain Prosecution and Defence witnesses. Mr. Biju Duval gives an example: on 26 February 2010 the Defence received two documents on three prosecution witnesses linked to another witness called by the Defence. According to Mr. Biju-Duval, the OTP has had these documents since 2005. "I think I don´t need to say anything else," he says. The Lawyer believes this information should have been disclosed long before the witnesses testified in order to allow the Defence to question them more precisely.
Mr. Biju Duval also points out that during the cross examination of Witness 26, they had got the impression that the Prosecution was in possession of documents unknown to the Defence. "The question is whether or not the prosecution has the obligation to disclose everything that may be used during cross-examination," says Mr. Biju-Duval.
The Chamber asks the lawyer to summarize all his demands, indicating those documents sent by OTP with delay and the prejudices caused as result of this late disclosure.
Four common witnesses in the Lubanga and Katanga cases:
The Defence has the impression that there is a different disclosure regime in the Katanga case concerning four common witnesses. The Prosecution admits the existence of differences but assures that there is nothing the Lawyers of Germain Katanga and Mathieu Ngudjolo got that Mr. Biju Duval had not received. The Chamber´s permission to exchange information between the Defence teams is still pending.
Remote testimony:
The Defence requested for Witness 14 to testify via video link from Ituri, in the Democratic Republic of Congo (DRC). The Lawyers argued that this is an "extremely vulnerable" witness and her travel to The Hague would cause her great prejudice and harm. Witness 14 is in her mid forties, and resides in a rural area relatively inaccessible. She lives in conditions of extreme poverty and had never travelled before.
Witness 14´s evidence is important for the Defence case: she is the mother of a Prosecution witness who claimed his mother was dead. On the contrary, she maintains that she was living with her child until he was 3 years old and that they met after the war in Ituri.
After consultation of the Victims and Witness Unit, the three judges allow the Defence to use the remote facility. The Chamber believes this is a reasonable alternative to protect the witness´ psychological well-being.
Produced in partnership with 3 Generations
