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Defense Witnesses Claim ICC Agents Concocted Evidence

Two defense witnesses who testified in Thomas Lubanga’s war crimes trial this week accused intermediaries of the International Criminal Court (ICC) of concocting evidence with the aim of pinning the former Congolese militia leader.

According to the witnesses, the intermediaries paraded before ICC officials many children who had never served in the military, and claimed the boys were former child soldiers.

The court presided over by Judge Adrian Fulford heard that ICC intermediaries bribed, threatened, or duped some of the boys’ parents and guardians into joining the scheme to concoct evidence.

Because both defense witnesses – and the one before them – focused a great deal of their evidence on intermediaries, Judge Fulford asked whether the prosecution planned to call intermediaries to give evidence regarding accusations that they corrupted evidence.

“Are we going to hear from them? And if we are, when?” asked the judge. He wondered whether the prosecution would be asking judges “to reject the defense testimony without having heard from the very people who are said to have been a corrupting influence as regards a significant element of the prosecution case.”

Joseph Maki, who completed giving evidence on Monday, told the court that ICC intermediaries gave him US$200 as payment for convincing his nephew to give false testimony against Lubanga.

According to defense witnesses, the boy subsequently testified as a prosecution witness and claimed having been a child soldier in the Union of Congolese Patriots (UPC), the militia group which the ICC claims Lubanga led.

For the US$200 he was given, intermediaries told Maki that he had to give ICC officials permission to take x-ray images of the boy to help determine his age.  In addition, he had to lie to the court’s officials that he knew Lubanga, and that he was aware that UPC had used child soldiers. 

Defense counsel Catherine Mabille asked Maki why he did not confess to the ICC officials whom he met twice that he did not know Lubanga and that his nephew had never served in any armed group.

“I was acting, saying what had been concocted [by the intermediaries]. It was a money issue. The white people didn’t know this, but we the blacks knew. I was told what to tell them,” he replied.

Maki said he met the ICC officials and their intermediaries on two occasions, in the town of Beni in eastern Congo, and in the country’s capital Kinshasa. “They were three white persons, and one black person. The second time it was two white persons and two black persons,” he said.

On Tuesday the third witness called by the defense testified that although he was never in any armed forces, he and other boys who had equally never served in any military group were paraded before people believed to have been ICC staff as former child soldiers.

The witness identified himself as Claude Nyeki Django, a resident of Bunia in eastern Congo. Defense counsel Marc Desalliers asked the 20-year-old witness whether the intermediary who paraded them knew that he had never served as a child soldier.

“He knew that very well,” Django replied.

“Could you tell us what Dudu [the intermediary] told the individuals you met in Beni with respect to that fact?” Desalliers asked.

“Dudu did not say in his own words that I was not a child soldier,” said Django. “Why didn’t he do that? He expected me to be the one to give the account. He simply told me what I had to say and he told me to accept that I had served as a child soldier.”

Django said he had wanted to tell the people in that meeting that he had never been a soldier. But when he tried to talk, one of the men ordered him to remain quiet.

The witness said he and the other boys were later taken to Kinshasa by the intermediary with promises of offering them vocational training. Instead, they were locked up in a house for months. “We slept all day and at night time we slept as well… we were just in the compound, we couldn’t even move about.”

Although Django did not have protective measures such as face and voice distortion, he gave most of his testimony in closed session. It was therefore not known what role, if any, he and the other boys subsequently played in the Lubanga trial.

Under cross-examination by the prosecution, Django reiterated that UPC did not conscript any child soldiers. He said children voluntarily joined the group. Most of those who joined were street children, but there were also some pupils who abandoned school to join the group when they saw soldiers of their age extorting money from civilians, Django said.

The prosecution’s Nicole Samson questioned the credibility of both witnesses. She asked Django how he knew that UPC did not conscript anybody, and he responded that he had been told by those who served in UPC.

Earlier, she had asked Maki why court should believe his testimony yet by his own admission he had taken money from ICC intermediaries and then failed to declare to the court’s staff he met in Congo that he was part of a scheme to fabricate evidence.

Maki said he had come under pressure from his neighbours and members of his family, and he realised he had done something wrong.

“Even my big brothers put pressure on me…  I was told that I was selling people, or that I was taking money to betray people,” he said.

Maki said he subsequently went to the village chiefs to ask for forgiveness. The chiefs put him in touch with the UPC secretary-general, who then advised him to talk to Lubanga’s lawyers.

Samson asked the witness whether UPC officials had given him money to testify as a defense witness.

“They categorically said no,” he replied. “Personally I asked for money and they said no… They said they were not thieves and were not wishing to buy my testimony.”