The single pre-trial judge handling the witness tampering case against Jean-Pierre Bemba and four others has directed the International Criminal Court (ICC) prosecutor to provide details of all reimbursements that were made to prosecution witnesses in Mr. Bemba’s ongoing war crimes trial.
Judge Cuno Tarfusser directed prosecutor Fatou Bensouda to provide this information to the chamber by August 4, 2014. The order followed a request by lawyers for Mr. Aimé Kilolo-Musamba – the former lead counsel for Mr. Bemba, who is now one of five individuals accused of bribing witnesses and presenting forged testimony before the ICC.
On June 27, 2014, Mr. Kilolo’s lawyers asked the judge to order the prosecutor to provide to them information they said was critical to his defense, namely money spent by the Office of the Prosecutor (OTP), including: what was paid to expert witnesses as remuneration; what was given directly by the OTP to all witnesses during the course of the OTP’s on-the-ground investigation; and what was spent in relation to and on behalf of all prosecution witnesses but which was not given directly to witnesses.
Defense lawyers stated that they needed this information to demonstrate that parties’ reimbursement of witness expenses is a legitimate and accepted practice within the court.
“Without such information, the defense contends it is unable to properly realize its defense strategy and provide a proper defense for Mr. Kilolo, thus calling into question the principle of due process,” argued defense lawyer Ghislain M. Mabanga.
Ms. Bensouda opposed the defense application, arguing that it lacked “a proper legal and factual basis for disclosure and fails to establish that the information sought is material to the preparation of the Defense.”
She argued that information related to witness expenses in a separate case had no evidentiary value in a subsequent case without a specific factual or legal link to a contestable issue.
However, Judge Tarfusser ruled that it was for the chamber, and not for the prosecutor, to determine whether the material and information sought by the defense could be regarded as “material” for the purposes of their disclosure. He ordered that the information be provided to the chamber to review it and determine whether its subsequent disclosure to the parties was warranted and appropriate.
Last November, arrest warrants were issued against Mr. Bemba, Mr. Kilolo and three others who were allegedly involved in bribing witnesses, including two expert witnesses, with funds provided by Mr. Bemba and his associates. Others arrested were his then case manager Jean-Jacques Mangenda Kabongo, Congolese Member of Parliament Fidèle Babala Wandu, and defense witness Narcisse Arido.
The Kilolo defense contends that legitimate reasons exist for money transfers to witnesses, which do not include or comprise witness corruption. “Witnesses testifying on behalf of an adversarial party in a case before this court are entitled to the reimbursement of expenses borne in connection with the provision of such testimonies. Specifically, the witnesses’ travel, accommodation, and meal costs in connection with the investigation are often funded by the party seeking such testimony,” argued Mr. Mabanga.
According to Mr. Mabanga, as Mr. Bemba’s then lead defense counsel, Mr. Kilolo was tasked with reimbursing witnesses and remunerating expert witnesses for their reports. He argued that the remuneration of expert witnesses for their research, skills, expertise and work product was standard practice at the ICC. “The prosecution called to the stand three expert witnesses, including a military expert, a linguistic expert, and an expert on gender crimes. Each expert witness was necessarily remunerated for his or her research, work product, testimony and time,” he said.