International Justice Monitor

A project of the Open Society Justice Initiative

Bemba and His Former Lawyers Fear Continued Surveillance

Jean-Pierre Bemba and his former lawyers with whom he faces an impending trial at the International Criminal Court (ICC) are wary that their communications are still under surveillance at the behest of the prosecution.

However, the Office of the Prosecutor (OTP) has denied that the communications of Mr. Bemba, his former lead defense counsel Aime Kilolo Musamba, and case manager Jean-Jacques Mangenda Kabongo, are still being monitored. The prosecution also said there was no ongoing monitoring of the communications of former defense witness Narcisse Arido and Congolese parliamentarian Fidèle Babala Wandu.

The five individuals are due to go on trial later this year for corruptly influencing witnesses who testified in the trial of Mr. Bemba, a former vice president of Congo whose militia reportedly committed rape, murder, and pillaging in the Central African Republic.

The November 2013 arrest warrants for the five accused stated that ICC investigators tapped phone calls and intercepted emails between Mr. Bemba and his lawyers. Pre-trial judge Cuno Tarfusser authorized the interception of communications following an application by prosecutors to conduct the interception as part of investigations into defense witness and evidence tampering allegations.

The interceptions, which also included the communications of Mr. Arido and Mr. Babala, allegedly showed that the Congolese opposition leader was speaking to witnesses and authorizing payments to them in exchange for false testimony.

Last month, lawyers for Mr. Bemba and Mr. Kilolo asked judges to order the OTP to confirm whether the two accused and their lawyers were still under electronic surveillance by the prosecution, or at the request of the prosecution.

A similar request had earlier been made by lawyers for Mr. Babala, who claimed they had received information that such monitoring was ongoing. The defense lawyers argued that if confirmed, such monitoring would be a violation of Articles 54(1)(c) and 69(7) of the Rome Statute, which require the prosecution to respect internationally recognized human rights, including the right to privacy and privileged communications.

In its response to the defense submissions, the prosecution stated that, other than what was already known to the parties to the trial, the accused and their lawyers were not under electronic surveillance. The prosecution said it had not monitored or requested any national authority to monitor the accused, their lawyers, or anyone else concerning the case.

“The prosecution is not aware whether national authorities have otherwise undertaken such activities,” added prosecutor Fatou Bensouda in the May 1, 2015 submission.

Judges accordingly ruled that the defense request to order the OTP to state whether it was monitoring the communications of the accused was moot.

The evidence gathered through intercepted communications is at the center of the prosecution’s witness corruption case. The evidence, which the pre-trial chamber relied on to authorize the arrest of the accused individuals, includes telephone call records; transcripts, translations, and summaries of recorded communications; text messages; e-mails; and international money transfer transactions through Western Union and Express Union.

In February 2014, Mr. Bemba’s new lawyers in his war crimes case asked judges to order a stop to the monitoring and recording of privileged communications between him and the lawyers. They argued that it was impossible for members of the new defense team to continue to represent the accused “without the ability to take instructions and provide advice in a confidential setting.”

Judges are yet to set a commencement date for the trial against Mr. Bemba and his four former associates.

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