Please find Katanga and Ngudjolo Chronicle #14, 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.
The fifth Prosecution witness surprises everyone with his account. During the course of his testimony, he claims that Germain Katanga and Mathieu Ngudjolo were present at the crime scene. This is an allegation that has not appeared in any of his previous statements. The legal debate starts.
The witness’s controversial statement was as follows: “The people who were killed were the inhabitants as well as some UPC soldiers. The people who were killing were the Ngiti and the Lendu, as well as the Bira…Germain Katanga himself, in person, had take possession of women and children. They said: ´Germain Katanga and Ngudjolo!´ They shouted in this way. I heard these cries with my own ears.”
These words provoke a strong reaction from Katanga’s defence team, who argues that this new information prejudices his client. “In none of the witness statements, in none of the documents provided to the Defence, is there any reference to these shouts,” said Mr. O´Shea. In his opinion, this is new information that “totally changes the character of this witness and puts the Defence on his back foot.” According to the Counsel, a witness who had been defined by the Prosecution as a “crime based witness” – a witness who testifies about events but does not necessarily put harmful allegations against the accused – has turned into “one of the most incriminating witnesses in the case.”
Mathieu Ngudlo’s defence team challenges the credibility of Witness 161. According to Mr. Fofé, Witness 161 was interviewed by the Office of the Prosecutor for more than ten hours in 2006. “If the witness had had such important information he wouldn´t have omitted it during such a long interview,” said the Counsel.
Things became very confusing. In light of this, Mr. O´Shea proposes three possible options to proceed: excluding the reference to Germain Katanga from the record; adjourning the cross examination of this witness to allow the Defence team to carefully analyse the new information; and finally, to ask the Chamber to not rely on this part of the testimony, because [it] affects the fairness of this trial.”
The Prosecution, who claim that they were not aware of this new information in advance, respond to the Defence proposals. They argue that they have acted in good faith. The examination of the witness has been carried out properly and the team has fulfilled its disclosure obligations. The new information came out spontaneously. They believe, therefore, that there are no reasons to exclude this piece of evidence. The Prosecution also argues that the Defence is entitled to cross examine this witness in order to test his credibility. Ms. Darques points out that all of Prosecution crime based witnesses present during the attack could be questioned about the matters raised by Witness 161.
The Defence team is not convinced. Both, Mr. O´Shea and Mr. Fofé agree that this information is a “unique piece of evidence [that] is not present in other Prosecution witness statements.” The Chamber intervenes. The judges need the Prosecution to identify those witnesses that would support Witness 161´s allegations. “Can we have this information by noon tomorrow?” asked Presiding Judge Cotte.
The Prosecution continues the examination of Witness 161 in private session.