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Two Testify As Lubanga Defense Reels Off Complaints

The Thomas Lubanga defense this week called two witnesses, but the highlight of the trial was the string of complaints made by the defense lawyers against the prosecution, as well as court reporters and translators.

Specifically, the defense protested that despite various interventions by judges, prosecutors were still failing to honor their disclosure obligations. Additionally, Mr. Lubanga’s lawyers reported that there were serious errors in the court reporting and translations, which they said jeopardized the quality of testimonies made in court.

But it was not these issues that prompted an early adjournment to the hearings on Friday. Instead, it was the realization by prosecutors that the defense had not disclosed some crucial information about the current witness.

The witness, who gave his age as 25 years old, had told the trial that he was a former soldier in the Union of Congolese Patriots (UPC), the group which prosecutors at the International Criminal Court (ICC) claim was led by Mr. Lubanga. Prosecutors told judges that the defense had withheld this fact from them, and they therefore were not ready to cross-examine this witness about certain aspects of his testimony.

Judge Adrian Fulford allowed the prosecution’s application for more time to prepare their cross-examination of the witness, but pointed out that judges were concerned that such requests could lead to unacceptable delays to the trial.

From the way testimony by this witness had progressed, it appeared that the defense had failed to inform the prosecution that he was a former UPC soldier.

Moments before this witness – the seventh called by the defense – took the witness stand, the defense had complained that the prosecution were not honoring their obligations to disclose certain information they held about both defense and prosecution witnesses.

Defense lawyer Jean-Marie Biju-Duval reported that on February 26, 2010, the defense received two documents related to three prosecution witnesses which were relevant to a defense witness who had just testified. Mr. Biju-Duval said the prosecution had been in possession of these documents since 2005. This information should therefore have been disclosed to the defense before the prosecution witnesses testified to allow the defense to question them more precisely, he said.

Mr. Biju-Duval related a second instance in which the prosecution had reportedly failed to honor their disclosure obligations. During the cross-examination of Witness 26 earlier in the week, he said, the defense got the impression that prosecutors were in possession of documents that were unknown to the defense.

The question then was whether or not the prosecution had the obligation to disclose all the information and the documents they planned to use in their cross-examination, argued Mr. Biju-Duval.

Judges gave prosecutors up to March 11, 2010 to provide a written response to the defense complaints.

Lubanga’s lawyers then told judges that it appeared that the defense team for Germain Katanga, another Congolese on trial at the ICC, had been given more information relating to four witnesses common to the two trials relative to what Lubanga’s team had received.

Prosecutors disputed this claim. Judge Fulford agreed with prosecutors, pointing out that, in fact, greater disclosure had been made to the Lubanga’s defense compared to Katanga’s.

Meanwhile, the first witnesses that testified this week said he was a member of the UPC and he identified some of the former UPC leaders in pictures showed to him by prosecutors. He said the photographs showed the UPC leaders wearing Ugandan army uniforms. The person he identified as Thomas Lubanga was not wearing military fatigues.

The UPC’s fighters were at one time trained and armed by Ugandan soldiers who were in Congo between 1997 and 2003.

The witness, who testified with face and voice distortion, also identified Bosco Ntaganda and Floribert Kisembo. According to prosecutors at the ICC, Mr. Ntaganda was the deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC), an armed group that used child soldiers during 2002 and 2003. Although the ICC unveiled an arrest warrant for Mr. Ntaganda in April 2008, he remains at large in the DRC. Mr. Kisembo is said to have been the chief of staff of the FPLC.

The ICC prosecutors claim Lubanga was the commander-in-chief of the FPLC, and has charged him with the war crimes of enlisting, conscripting and using child soldiers in armed conflict.

The prosecution’s Olivia Struyven asked the witness whether he knew when the pictures were taken, and he replied that he did not. He also said he did not know where the photographs were taken from, but added, “It seems like the office in Mandro [village] that was burned up”. He did not elaborate on what the office was and who had set it on fire.

“If I suggest the picture was taken before the mutiny, before people [UPC fighters] were taken to Kyankwanzi and Jinja [military training camps in Uganda] would it change your testimony?” the prosecutor asked.

“I do not have any additional information,” said the witness, who went on to give most of his testimony in closed session.

The case resumes on Monday.