Defense lawyers have opposed the prosecution’s bid to introduce evidence on witness tampering by Jean-Pierre Bemba and his lawyers in the Congolese politician’s ongoing trial at the International Criminal Court (ICC).
On November 29, 2013, prosecutor Fatou Bensouda sought permission to submit an audio recording, a report, and a financial chart, which “will demonstrate conclusively that the testimony of specific defense witnesses is that of counsel rather than the witness.”
Mr. Bemba, along with two of his former lawyers and two aides, are accused of corruptly influencing witnesses and presenting false documents in the trial. Mr. Bemba has been in ICC detention since 2008 over his alleged failure to discipline soldiers he commanded, who prosecutors say committed rape, murder, and pillaging in the Central African Republic a decade ago.
The prosecutor described the new evidence as “compelling” and of a “unique nature,” as it showed payments by Mr. Bemba’s former lawyers Aimé Kilolo-Musamba and Jean-Jacques Mangenda Kabongo, as well as their associates, to 14 defense witnesses. She said this evidence refuted the credibility of defense evidence, which justified its submission.
Ms. Bensouda said the prosecution only became aware of the information during the defense case and thereafter conducted investigations to ascertain its veracity before bringing it to the attention of judges.
However, defense lawyer Peter Haynes asked judges to reject the prosecution’s application. “If the evidence which the prosecution is now seeking to admit was in the possession of the prosecution during the defence case, and the prosecution declined to tender it through relevant defence witnesses, then the prosecution must be considered to have waived its right to do so,” argued Mr. Haynes in a January 15, 2014 response.
The defense contended that Ms. Bensouda did not provide details of the content of the materials, how they were obtained, and their relevance to the testimony of defense witnesses. Furthermore, the prosecutor had not disclosed the identities of the specific witnesses and the link between the evidence and the charges against Mr. Bemba.
“It is therefore impossible to verify the probative value of the evidence in such an information vacuum,” said Mr. Haynes. He added that the prosecution withheld key evidence relevant to the trial, which constituted a “grave disclosure violation which, in itself, warrants the exclusion of the evidence in question.”
According to Mr. Haynes, the expeditious disclosure obligations of the prosecution applied irrespective of whether prosecutors decided to use the evidence in question or not.
He also argued that accepting the additional evidence into the case record would impact the fairness and expeditiousness of the trial because the defense team would need to conduct further investigations and recall the 14 witnesses whose testimony was affected.
“In light of the demonstrated difficulties faced by the defense in calling the witnesses in the first place, it cannot be presumed that the defense will have the ability to re-interview or recall them in order to respond to these highly prejudicial insinuations, or to conduct further ancillary investigations,” said Mr. Haynes.
Besides, he said, litigation procedures on accessing and seizing privileged and confidential material from Mr. Bemba and his four co-accused, as well as the presentation of oral testimony by the five suspects, might be necessary. This would require the defense to seek a stay of proceedings for an unknown timeframe.
Judges have directed the prosecution to respond to the defense submissions.