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Katanga-Ngudjolo Chronicle #11: An hostile witness for the Prosecution

Please find Katanga and Ngudjolo Chronicle #11, which was originally published on the Aegis Trust website.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

What if a witness is called to testify in Court and offers damaging testimony to the calling party? Certain inconsistencies in accounts can be attributed to fading memories. But what if the witness’s testimony clearly poses problems for the Prosecution’s case? This is what has happened with Witness 250, a former FNI soldier.  He is now considered a “hostile witness” by the Prosecution because of the discrepancies between his testimony and previous statements.

During the examination of Witness 250, Mr. MacDonald began noticing inconsistencies on various issues: the presence of civilians in Bogoro; the hatred songs based on ethnicity sung by the fighters; how ammunitions were obtained and distributed; and how child soldiers came to be amongst the FNI and FRPI ranks.

The Prosecution now has two options. If the Chamber agrees that Witness 250 is hostile, then the Prosecution will be allowed to cross examine its own witness. If the Judges conclude that the Witness is not hostile, then the Prosecution must continue conducting a direct examination.

Eventually the Chamber concludes that the fact that there are inconsistencies in Witness 250’s testimony is not a sufficient argument to declare him ‘hostile.’ The Judges believe that Witness 250 has been answering the Prosecution´s questions in a measured and calm manner and that those areas of dispute can be explored by the Chamber itself.

So the Prosecution continues its examination of Witness 250. Mr. MacDonald is seeking clarification on: the activities of the FRPI and FNI before and after the attack against the village of Bogoro; the ethnic differences between the fighters; the presence of civilians in the village; and the commanders responsible for the operation. The Prosecution is also concerned with other attacks carried out jointly by the FRPI and FNI, such as one on the village of Mandro. According to the witness, this attack took place after the assault on Bogoro and Germain Katanga and Mathieu Ngudjolo were amongst the commanders who planned it.

Once the examination has concluded, Germain Katanga’s Defence puts some questions to Witness 250. Mr. David Hooper wants to understand the political climate in Ituri from 1999 to 2003; how the FNI and FRPI came to exist; and how the mission to Aveba – during which the Lendu and Ngiti militias allegedly planned the Bogoro attacks – came about.

According to the witness´s testimony, an FNI delegation travelled from Zumbe to Aveba – 50 km south of Bunia – to meet Katanga’s FRPI. The aim was to find a ‘solution’ to the Bogoro ‘problem.’ They needed to “chase out the people who occupied Bogoro,” to eliminate the presence of the UPC/Hema in the village. A man called Bahati of Zumbe, reportedly the head of the mission, was the last to return and the one who brought back the plan. The plan was shared with the Lendu fighters before the attack.

Witness 250 told the court he learnt about the FNI name, Front for National Integration, after Bogoro had already fallen in February 2003. “So when you left Zumbe for Aveba, you weren´t an ‘FNI delegation,’ right?” asks Mr. Hooper. “That name only came afterwards,” replies the witness. It was during the reconciliation talks in Bunia in March 2003 that the Lendu delegation began using the name Front for National Integration: “It was a name not only used by citizens; it was also used by the representatives. From that moment the name referred only to the Lendu combatants.”

According to the Prosecution the FNI was formed in December 2002, during discussions first held in Kpandroma, DRC and then in Arua, Uganda. Until the formal creation of these movements in late 2002, Lendu combatants were under the command of local leaders who organised the defence against UPC attacks. During this period, Ngudjolo consolidated his power and authority over Lendu fighters in the Zumbe area. At the end of 2002, the decision was taken amongst some Ngiti and Lendu to formalise the resistance against the UPC. This resulted in the formal alliance of the FRPI and FNI.”Mr. Witness, when did you first hear of the FRPI?” asks Mr. Hooper. Witness 250 learnt about the name at a meeting that the two groups, Lendu and Ngiti, held in Aveba. “This name was widely known when I was in Aveba; it was a popular name,” says the witness. The FRPI was formed in late 2002 as the first significant attempt to unite, within one group, the various Ngiti and Lendu groups. The Prosecution argues that in the fall of 2002, Germain Katanga became chief of all the Ngiti combatants in the Walendu-Bindi collectivité. At least seven militia camps from this collectivité were involved in the execution of the attack on Bogoro.