As the second defense witness in the Lubanga trial started testifying on Tuesday this week, judges berated the prosecutors for failing to tell the accused’s lawyers some important information they had collected about two of the defense witnesses in a timely way.

The contest over the disclosures came after the first defense witness had finished his testimony, in which he said his son had appeared at the trial as a prosecution witness and lied that he had been a child soldier in the Union of Congolese Patriots (UPC), the group Thomas Lubanga is alleged to have led.

Lubanga is on trial at the International Criminal Court (ICC) on war crimes charges related to the use of child soldiers. The ICC alleges that he was the commander-in-chief of the Patriotic Forces for the Liberation of Congo, a militia group that used child soldiers in inter-ethnic fighting in the Democratic Republic of Congo (DRC). He denies the charges.

Catherine Mabille, Lubanga’s lead counsel, protested to court that it was only last Thursday (January 28, 2010) that prosecutors disclosed the information relating to ‘Witness 003’ and ‘Witness 004′ who were the second and third witnesses respectively the defense would be calling.

“Why were these investigators’ notes not disclosed to us in time? We felt that this put the defense in a situation where we could not ask the witnesses who are coming today or next week to give us explanations on a certain number of events which were related in these investigators’ notes,” she said.

Mabille added: “The prosecutor had a statutory obligation of disclosing these elements pursuant to rule 77 and on exculpatory evidence, and so we are wondering why this disclosure was done late. This has put us in a difficult situation.”

Judge Adrian Fulford directed prosecutors to explain why they took long to fulfil their disclosure obligations. “The material contained in these reports is not only self-evidently disclosable but also self-evidently of significance for the two witnesses defense is about to call,” he said.

During the public sessions of the trial, none of the parties explained what exactly the information in the investigators’ notes related to.

Mabille told court that since last August the Office of The Prosecutor (OTP) had known the identities of the defense witnesses and should therefore have made its disclosures to the defense much earlier.

The prosecution’s Nicole Samson explained that although they had indeed received the names of defense witnesses last August, they had to make additional investigations relating to defense witnesses 003 and 004.

Such investigations were made, Ms. Samson said, after prosecutors established that the information provided to the OTP by the defense was not consistent with what was in the OTP’s database regarding the identities of the witnesses. She said the extra investigations also took place after it emerged that there was an important connection between ‘witness 297’ and defense witnesses 003 and 004. Prosecutors only became aware of these links either in December or in January, she said.

Samson said ‘witness 297’ was previously set to testify for the prosecution, then fell off their witness list but had continued cooperating with the OTP.

 The judge nonetheless faulted prosecutors for making the disclosures “markedly too late”.

“This should have happened at the very least in late December (2009) if not substantially earlier once the identities of these two witnesses were revealed to you,” Judge Fulford said. “We request you please to review how disclosure is approached where you have the names of the witnesses… so as to ensure that we are not placed in this position again in future.”

Mabille said the defense felt it needed extra time before calling the two witnesses. However, they had decided not to request this additional time, since the witnesses were already in The Hague “and as such we can not ask for an adjournment because this would be unrealistic at this juncture.”

Judges had said they were ready to give the defense an adjournment to study the disclosure documents and to meet their witnesses before they were called to testify.

Witness 003 subsequently appeared on Tuesday and gave evidence without protective measures such as face and voice recognition. But he gave almost all of his evidence in closed session.

Because he said little in sessions which were open to the public, it was not known in what capacity he was testifying. The first defense witness, who completed giving his evidence on Monday, was the father of a prosecution witness who said his son lied to the ICC about having been a child soldier.

Witness 003, who will continue his testimony next week, was asked whether he knew a social worker whose name was only mentioned in closed session, and who worked with an organization that helped demobilize fighters in DRC.

This social worker is the same person as ‘witness 297’ who was withdrawn from the prosecution’s list of witnesses. The witness said he knew the social worker.

But before prosecutors could question witness 003, Judge Fulford told Lubanga’s lawyers that said it would be extremely difficult, if not impossible, for the prosecution to commence questioning the witness on the basis of the evidence he had given if prosecutors had not been provided with some advance notice of what the witness was going to say.

He said evidence of that kind required an element of reflection, preparation and probably investigation before prosecutors could deal with it adequately by way of questioning.

“It may be that you come to the view that on a wholly voluntary basis, for the witnesses to come, particularly those in this category, it may be desirable for there to be a realistic element of additional disclosure to the prosecution in advance so that they are not gonna be put in a position Ms. Samson was describing earlier of needing to request an adjournment every time questioning from you has finished so that they can prepare for their questioning,” said the judge.

He said if that were to happen, it would lengthen the trial dreadfully.

The current clash over disclosure issues is not the first to impact the Lubanga trial.  Concerns about the prosecution’s failure to disclose potentially exculpatory evidence threatened to derail the trial in back in 2008 as judges were concerned that it would impact Mr. Lubanga’s fair trial rights.  Those disclosure issues were addressed over a series of months, the judges eventually were convinced that Mr. Lubanga’s fair trial rights could be respected, and the trial was able to go ahead in January 2009. 

Mr. Lubanga’s defense case continues next week.