A prosecution witness, who was unable to testify in the Thomas Lubanga war crimes trial last year due to ill health, will give evidence next Monday, according to presiding judge Adrian Fulford.
‘Witness 297’, a former child soldier in the Union of Congolese Patriots (UPC), the militia group that Mr. Lubanga is alleged to have led, will be subjected to leading questions from both the prosecution and the defense. Besides his intention to testify against Mr. Lubanga, the witness has made statements that contradict the position of prosecutors on the conduct of intermediaries of International Criminal Court (ICC) prosecution investigators.
Both the prosecution and the defense today asked the court to be given the first opportunity to question this witness, who had earlier been expected to testify in April 2009, but the judges ruled that prosecutors had the right to question him first.
“This is a witness who was essentially, indeed who is essentially, a prosecution witness who was only not called earlier in the trial because of his ill health. Now he has recovered and there is an application that he should be called at this stage,” said Judge Fulford. “We consider that the fairest approach is for him to remain as he would have been if he had been called by the prosecution, namely someone who is questioned by the Office of The Prosecutor first.”
But the defense argued that it was entitled to examine ‘Witness 297’ first because the prosecution had declared that he was no longer their witness. Mr. Lubanga’s defense lawyer,Jean-Marie Biju-Duval, argued that since the general principle was for the party calling the witness to carry out the examination-in-chief, the defense should question ‘Witness 297’ first.
“For ‘Witness 297’, we have at least one certainty, that is, the party that requested that the court orders the witness to appear was the defense. The defense submitted that request because it feels that the testimony of ‘Witness 297’ entirely or in part… fits in with the submissions of the defense. So from a procedural point of view it would be logical that the defense should carry out the examination-in-chief,” Mr. Biju-Duval said.
Prosecution lawyer, Nicole Samson, countered that the question of whether ‘Witness 297’ is a prosecution witness or a court witness had never been clearly answered. She added that when the defense met this witness in December 2009, they did so with the view to determine whether they would call him or not. Subsequently, she added, the defense asked court to call the witness but not as a defense witness.
“He in the main provides incriminating information given that he maintains that he was a UPC child soldier,” said Ms. Samson. She also stated that because the witness had said some things that were contrary to the prosecution’s position on the issue of intermediaries, prosecutors would ask the witness some leading questions. Mr. Lubanga stands accused of the war crimes of using child soldiers, which he allegedly committed during 2002 and 2003.
‘Witness 297’ will be the second former prosecution witness to appear this year and be subjected non-neutral questioning by the prosecution and the defense. ‘Witness 15’, a former prosecution witness who told court last June that he had lied to investigators of the ICC, last March took the witness stand once again and stated that an intermediary of ICC prosecution investigators cooked up lies that the witness in turn fed to the investigators.
Ms. Samson said because of some evidence heard recently from certain defense witnesses, the prosecution had a great interest to hear the evidence of ‘Witness 297’. The prosecution opened their case on January 26, 2009 and closed it on July 14, 2009. The defense case opened on January 27 this year.
Today’s debate on ‘Witness 297’ followed the completion of the testimony of the eighteenth defense witness. This witness, a headmaster at the school attended by two defense witnesses whose identities were allegedly usurped, testified about the alleged theft of the identities of the former pupils, who also served as child soldiers in the UPC.
The trial will resume on Monday, May 17, with ‘Witness 297’ giving evidence.