International Justice Monitor

A project of the Open Society Justice Initiative

Verdict to be Delivered Tomorrow in First ICC Witness Tampering Trial

Tomorrow, judges will deliver the judgment in the first witness corruption case handled by the International Criminal Court (ICC).  The verdict in the trial in which there are five accused individuals will be delivered in open court at 14:30 local time in The Hague.

The charges, under Article 70 of the Rome Statute, stem from the trial of former Congolese vice president, Jean-Pierre Bemba, over war crimes and crimes against humanity committed in the Central African Republic (CAR). Tried alongside him for corrupting 14 witnesses who testified in the main trial were Bemba’s former defense team lead Aimé Kilolo Musamba, case manager Jean-Jacques Mangenda Kabongo, defense witness Narcisse Arido, and Congolese parliamentarian Fidèle Babala Wandu.

In confirming the charges against them, pre-trial judges found evidence showing that, between the end of 2011 and November 14, 2013, the accused corruptly influenced witnesses by giving them money and instructions to provide false testimony in the courtroom. The offenses were perpetuated in various ways, including by “committing, soliciting, inducing, aiding, abetting or otherwise assisting in their commission.”

For its case, the prosecution tendered into evidence intercepted telephone conversations between the accused and with witnesses, recordings provided by the ICC detention center on Bemba’s non-privileged telephone line, and the records of money transfer services showing transfers of money from some of the accused to defense witnesses. Other evidence included SMS from the mobile phones and tablets of the accused, their email records, and call data records obtained from various telephone companies.

During hearing of closing statements last May, prosecution lawyer Kweku Vanderpuye stated that the evidence showed that Bemba approved and authorized the acts of his co-accused so as to secure himself an acquittal in his main trial. “Kilolo was the prime implementer, the planner, the scriptwriter, the one who auditioned the witnesses for their roles and their participants in the trial,” and he reported to Bemba. Vanderpuye said Mangenda liaised between Bemba and Kilolo, relaying instructions and information.

Babala allegedly controlled the finances, and upon Bemba’s authorization and approval, dispensed the money to witnesses. Arido is accused of lining up the witnesses in Cameroon to falsely testify as former soldiers in the CAR.

The prosecution alleges that the accused gave witnesses phones, paid them, discussed their testimony with them, were aware of witnesses’ false testimony but failed to correct the record, proofed witnesses, gave them gifts and violated the court’s contact protocol between witnesses and the party that calls them to testify.

During the trial, the prosecution called eight of the 14 witnesses purportedly corrupted by the defense – Witnesses D15, D54, D57, D64, D55, D23, D2, and D3. “All of them effectively admitted lying in their testimony before Trial Chamber III in the main case,” claimed Vanderpuye. He added: “Although some were more evasive than others in regard to admitting those lies, their evidence before the court proving the accused’s responsibility was crystal clear.”

Bemba’s lawyer Melinda Taylor said the prosecution did not tender any evidence to show that Bemba knew witnesses were lying or that he asked his lawyers to coach witness. His conversations with his lawyers were a lawful contribution to the objective of defending himself against the charges, argued Taylor, and whatever his lawyers allegedly did before or after their conversation, it was lawful for Bemba to speak to them about their proposed line of questioning for witnesses.

Taylor also dismissed prosecution allegations that Bemba authorized payments to witnesses, noting that the only evidence to support this are recorded calls at the court’s detention center. However, those were legitimate payments to his lawyers, and the conversations in the intercepts were not well synchronized to provide a clear, real-time sequence of the conversation.

According to Taylor, even if the unreliability of the recordings of intercepted communications were to be ignored, Bemba’s conversations with Babala only concerned payments of money, not the commission of Article 70 offenses. “There is nothing illegal or improper as concerns compensating witnesses. The prosecution and Victims and Witnesses Unit do it all the time,” said Taylor. She added that, while the prosecution had argued that using Western Union and sending money to relatives was evidence of bad faith, the prosecution itself used Western Union to pay witnesses, including to send money to prosecution witness P-261’s wife.

In an unsworn statement he made to court, Kilolo said he did not know that the witnesses were providing false testimony. “Nothing suggested to us or to me that the witnesses were lying about the events they were describing or their participation in the events,” he said. “All the counsels, all the legal assistants were convinced that these witnesses were clearly credible, clearly relevant.”

This position was reiterated by Kilolo’s lawyer Paul Djunga, who stated that witnesses who affirmed having made false testimonies said they lied to Kilolo regarding their status as former soldiers and as to their presence in the CAR capital Bangui in 2002. One of the witnesses testified that they dipped documents into tea with a view to misleading Kilolo, Djunga said.

Djunga stated that of the nine witnesses who testified in the witness tampering trial, only three claimed that Kilolo gave them instructions on the content of their testimony. “However, contrary to the six others, these three witnesses lied clearly under oath before the Judges in the main case.”

He said prosecution evidence showed that Kilolo personally gave cash or transferred funds amounting to €3,649 to 10 witnesses while various other Bemba associates transferred €2,506 to seven witnesses – totaling €6,155 divided between 10 witnesses. “None of these witnesses stated that Mr. Kilolo had given them money and told them that it was a kind of corruption or retribution for the false testimony they were expected to give,” said Djunga.

He cited the testimony of an expert witness, who stated that there was no prohibition for defense teams to cover witness costs during investigations, such as costs relating to accommodation, transport, meal, medical attention, as well as travel for their minor children in order to bring families together. Defense lawyers also suggested that the amounts given to the witnesses were negligible to be considered as inducements for providing false testimony.

Meanwhile, Christopher Gosnell said Mangenda did not participate in any discussions with witnesses in Cameroon about their testimony. Moreover, there was “no evidence at all” of him being in touch with any witness during their testimony. Other defense lawyers contended that prosecution evidence was unable to prove beyond reasonable doubt any involvement by Wandu in the alleged witness corruption strategy. Indeed, none of the prosecution witnesses were ever in contact with him, and “all of them under oath before your Chamber said they did not know him,” said defense lawyer Jean-Pierre Kilenda Kakengi Basila.

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