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Appeals Judges Affirm Witness Tampering Convictions against Bemba and His Lawyers

Appeals judges at the International Criminal Court (ICC) have upheld the witness tampering convictions against Jean-Pierre Bemba and his four associates. However, they overturned [pdf] Bemba and his lawyers’ conviction over presentation of false oral testimony in the former Congolese vice president’s main trial over war crimes and crimes against humanity.

The judges confirmed all the other convictions of giving false testimony and corruptly influencing witnesses against Bemba and his former lawyers Aimé Kilolo Musamba and Jean Jacques Mangenda. They equally upheld the convictions for corruptly influencing witnesses against Bemba’s aides Fidèle Babala Wandu and Narcisse Arido.

In another ruling, appeals judges reversed [pdf] the sentences imposed on Bemba, Kilolo, and Mangenda and directed the trial chamber that sentenced them to determine new sentences. They faulted the trial chamber for determining the gravity of the offenses using an “irrelevant consideration,” improperly reducing the sentences and suspending Mangenda and Kilolo’s remaining terms of imprisonment.

Judge Silvia Fernández de Gurmendi, who delivered an oral summary of the ruling, said the oral testimony of witnesses was “beyond” the control of Bemba and his lawyers. “While the calling party may hope or anticipate that the witness will lie before the chamber, it remains the independent decision of the witness to do so when he or she gives evidence in court,” she stated.

The judges ruled that because Bemba and his lawyers “cannot know” that evidence yet to be given is false or forged, Article 70(1)(b) is only applicable to the presentation of false or forged documentary evidence. The Appeals Chamber faulted trial judges for finding that the provision encompassed oral evidence and ruled that Bemba and his lawyers’ convictions were wrongly entered.

In October 2016, Bemba and his four associates were convicted of witness tampering. Bemba and his two former lawyers were found guilty of corruptly influencing 14 witnesses and presenting their false evidence before the court.

Furthermore, Kilolo was found guilty of inducing the giving of false testimony by the 14 witnesses, while Bemba was additionally convicted for soliciting the giving of false testimony. Trial judges also determined that Mangenda aided in the giving of false testimony by two witnesses and abetted the giving of false testimony by seven witnesses. Babala was found guilty of aiding in corruptly influencing two witnesses while Arido was found guilty of corruptly influencing three witnesses.

Bemba, Babala, and Arido appealed their convictions and sentences. Meanwhile, the prosecution appealed the sentences for Bemba, Kilolo, and Mangenda.

On sentencing, appeals judges noted that in circumstances where an accused has spent time in detention in different cases, time spent in detention “can only be taken into account once.” As such, they found that the trial chamber did not err in not deducting the time Bemba had spent in detention from the prison term he would serve.

In its appeal, the prosecution argued that trial judges imposed “inadequate and disproportionate sentences” on Kilolo, Mangenda, and Bemba and asked appeals judges to increase them to five years each.

Appeals judges found that the trial chamber erred in its determination of the “gravity of offenses” and distinguishing between offenses committed as co-perpetrators and those committed as accessories. Noting that the trial chamber’s assessment of the modes of liability and gravity of offenses were “almost identical,” appeals judges reversed Bemba, Mangenda, and Kilolo’s sentences and remanded the matter back to the trial chamber for a new determination of their sentences. The sentences for Arido and Babala were confirmed.

Bemba, Babala, and Arido appealed against conviction on several grounds, including the admissibility of documentary evidence such as Western Union records. However, judges dismissed the appellants’ arguments that prosecutors violated international privacy law by accessing information on money transfers.

The judges found that prosecution investigators’ access to records relating to 68 individuals, including potential defense witnesses, undisclosed members of the defense team, and other Bemba associates, was “proportionate to the investigative needs of the prosecutor.” Similarly, appeals judges found that the admission of detention center records of Bemba’s communications was proportionate.