International Justice Monitor

A project of the Open Society Justice Initiative

One Witness to Testify at ICC’s First Witness Tampering Sentencing Hearing Next Week

The prosecution will call one witness to testify at the sentencing hearing of Jean-Pierre Bemba and his four associates who were found guilty last October of witness tampering at the International Criminal Court (ICC). No witness will testify for the defense at the hearing scheduled for December 12-14, 2016.

In a November 11, 2016 decision on the sentencing hearing, judges Bertram Schmitt (presiding), Marc Perrin de Brichambaut, and Raul C. Pangalangan considered that hearing the live testimony of the proposed nine defense character witnesses “would constitute an inefficient sentencing presentation which might be disproportionate to the anticipated value of their evidence.” As such, judges directed that written statements be submitted for the defense character witnesses.

Bemba and his former lawyers Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo, along with Fidèle Babala Wandu, who is Bemba’s confidante, and Narcisse Arido, were found guilty of corruptly influencing 14 witnesses, inducing and presenting false evidence, and corruptly influencing witnesses. The charges were brought before the five individuals in relation to Bemba’s trial for war crimes and crimes against humanity, for which he was convicted and sentenced to 18 years in jail.

At next week’s sentencing hearing, the prosecution witness is expected to provide evidence on Arido’s alleged attempt to obstruct justice. In the interest of procedural fairness, judges determined that the witness should be examined by other parties. “The anticipated testimony summary raised serious allegations and the Arido defense in particular should be afforded an opportunity to challenge them,” stated the judges.

In declining to hear the testimony of the proposed nine defense character witnesses, judges stated that there was no indication that the matters defense lawyers sought to establish through these witnesses were “materially in dispute.” Accordingly, no prejudice would be caused by receiving written statements without these witnesses being questioned by other parties.

The defense for Kilolo had sought to call seven witnesses, four of whom had their statements introduced during the trial. Others were Kilolo’s neighbor and brother, who were expected to testify about his personal life and character. In addition, defense lawyers proposed that a psychiatrist testifies about Kilolo’s personality and the impact of his detention on the lawyer’s professional and family life.

The Babala defense sought to call two witnesses – one to testify on the Congolese legislator’s personal and spiritual life and the second to testify on his role in the community, his political engagements, and work in defending democracy and rule of law in Congo.

For its part, the Bemba defense sought to submit a psychological expert evaluation of the former Congolese vice president in relation to the “impact of his detention conditions on his state of mind and interaction with third parties.” Judges found that the request to receive the evaluation in writing was “reasonable.” The defense for Mangenda and Arido did not seek to call any witnesses.

In their decision, judges noted that other chambers of the court, including that of Bemba’s main trial and that of Germain Katanga, had introduced written statements or expert reports at sentencing in lieu of oral testimony.

Accordingly, judges granted the prosecution two hours to question its sole witness and defense teams four hours to cross-examine him. Thereafter, parties will make oral sentencing submissions.

Bemba’s co-accused have since late 2014 been on conditional release after spending nearly a year in pre-trial detention. At the time of their release, a single judge found that their continued detention was disproportionate to the penalties for the offenses charged. The maximum penalty for witness tampering offenses under Article 70 of the court’s Rome Statute is imprisonment not exceeding five years, a fine, or both.

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