Bosco Ntaganda’s lawyers have failed to cross-examine a prosecution witness. The witness has been testifying since Wednesday, but defense lawyers said they had not conducted sufficient investigations for their questioning of the former insider in the group that the accused was a senior commander.
“We are not in a position to cross-examine the witness and seek him to be called at a later time,” said defense lawyer Stéphane Bourgon. He said this “exceptional” decision was a result of challenges being faced by the defense team. They included the absence of his co-counsel, difficulties in conducting field investigations in Congo, and his own ill health over the past week.
However, judges recommended that, in the interest of a fair and expeditious trial, the defense should proceed with the cross-examination. Presiding Robert Judge Fremr said the investigation challenges cited by the defense appeared to have been experienced for a while and were not related to the testimony of Witness P290.
The judge added: “The chamber does not accept that an experienced counsel supported by his team and on notice for two and a half months about the [hearings] schedule isn’t able to conduct cross-examination.”
“This is a discretionary right and can be forfeited. But it is important Mr. Ntaganda understands that if you do not cross-examine the witness, it can be understood as a forfeiture of this right,” the judge said. He noted that if Ntaganda’s lawyers chose not to conduct the cross-examination presently, they could ask in future that the witness be recalled “but it would need cogent reasons, and there is no guarantee the request will be granted.”
Prior to the start of Ntaganda’s trial last September, Ntaganda’s lawyers requested a delay of the trial opening date, arguing that due to a shortage of time and resources, they were not prepared to advance a defense case or to question prosecution witnesses. According to Bourgon, since then and on numerous other occasions, the defense has been unable to convince the chamber that the difficulties it faces are “real” and impact upon the fairness of the trial.
Most of Witness P290’s testimony was heard in closed session. In the brief moments of open court this morning, the witness recounted the presence of child soldiers in Ntaganda’s personal escort. He said the child soldiers were armed and wore uniforms.
Asked by trial lawyer Eric Iverson how he could tell the age of the child soldiers, Witness P290 said that it was based on their physical appearance and the fact that, at a UPC training center where he was an instructor, the children were more interested in playing than in receiving training.
Witness P290 testified with protective measures including image and voice distortion. Furthermore, judges granted his request for assurances against self-incrimination during his evidence.
At the time today’s hearing was adjourned, it remained unclear when the next witness would appear.