Aimé Kilolo-Musamba, a lawyer who previously represented Jean-Pierre Bemba at the International Criminal Court (ICC), is seeking the disqualification of the pre-trial judge handling his case of alleged evidence tampering.
In a May 1, 2014 request to the presidency of the court, Mr. Kilolo’s lawyers alleged that Judge Cuno Tarfusser had issued “unorthodox and legally unsubstantiated judicial mandates” that overwhelmingly favored the Office of the Prosecutor, rendering the judge “a Second Prosecutor.”
Ghislain Mabanga, who is representing Mr. Kilolo, also pointed to the judge’s alleged haste in issuing the arrest warrant for his client and four co-accused. He accused the judge of actions and language “manifestly contravening the presumption of innocence and instead implying guilt.”
Mr. Mabanga said Judge Tarfusser “personally” involved himself in the investigation of the suspects, including the “unilateral” appointment of an independent counsel, interference with the scope and methodology of investigation by the prosecution and the independent counsel, and personal application to the court’s presidency for a waiver of Mr. Kilolo’s immunity.
For these reasons, said the defense lawyer, Judge Tarfusser could no longer be deemed wholly impartial and must be disqualified from all future proceedings in the case.
Charges of evidence tampering were brought last November against Mr. Bemba and his then lawyers Mr. Kilolo and Jean-Jacques Mangenda Kabongo. Similar charges were brought against two other former aides to Mr. Bemba, a former vice president of the Democratic Republic of Congo.
Investigators tapped phone calls and intercepted emails between Mr. Bemba and his lawyers. An independent counsel was then appointed to review telephone logs and listen to the tapped recordings.
Mr. Mabanga argued that the Rome Statute, the court’s founding statute, does not envisage the appointment of an external independent counsel to facilitate an internal court investigation. He said powers of investigation are only invested in the prosecution.
He stated that after appointing the independent counsel, the judge “explicitly” instructed him on how to execute his mandate, “specifically” tasking him with finding incriminating evidence only. “The Single Judge did not require Independent Counsel to look for exculpatory evidence, a requirement imposed even on the Prosecution,” claimed Mr. Mabanga.
The defense lawyer also submitted that the speed within which the judge issued the arrest warrant and the application to waiver Mr. Kilolo’s immunity was “absolutely astounding and suggests a gross miscarriage of justice.”
According to Mr. Mabanga, the prosecution’s application for an arrest warrant was presented to the judge on November 19, 2013, numbering 50 pages and accompanied by 55 annexes totalling more than 1,500 pages. The annexes comprised up to 30,000 pieces of information and more than 18,000 records of phone calls and text messages.
Upon receipt of the application for an arrest warrant and within “mere hours,” the single judge is said to have urgently applied to the presidency of the court for a waiver of Mr. Kilolo’s immunity in order to grant the prosecutor’s request. The lawyer said the judge’s application for waiver was accompanied by a draft arrest warrant.
Based on two reports by the independent counsel – submitted in October and November last year – Judge Tarfusser issued arrest warrants for the five suspects. The arrest warrant stated that Mr. Bemba ran a “criminal scheme” from his detention cell in The Hague by speaking to witnesses and authorizing payments in exchange for false evidence in his ongoing trial.
“That the Single Judge was able to receive, review, analyze, deliberate, and decide upon the immediate deprivation of the suspects’ liberty in a matter of hours is flabbergasting,” said Mr. Mabanga. He added that even with the aid of an extremely efficient team, it would have been impossible to review all the material in less than 48 hours.
He argued that upon receipt of the application for an arrest warrant, the judge should have ordered the prosecutor to first apply to the presidency for an immunity waiver: “That the Single Judge himself made the waiver application is not simply unorthodox but is legally unfounded.”
The judge was also accused of “often” referring to Mr. Kilolo’s actual commission of crimes as opposed to alleged commission of offences. Among the references highlighted are Mr. Kilolo playing a “determinant role” in the purported evidence tampering scheme and the statement judge’s decision denying him provisional release that “Mr. Kilolo has been found guilty in the court of public and judicial opinion.”