Wednesday, 10 March 2010- Prosecution: Defence Witness 16 is lying

The prosecution´s questioning casts serious doubts on the credibility of the eighth defence witness.  Witness 16, who testified that he lied to the ICC investigators, has been backed into a corner.  For the last four years he never once told the Office of the Prosecutor that he had fabricated his evidence.  Why he should be believed now?  The prosecution´s argument is clear: the witness is lying now.

During the course of his testimony, Witness 16 said that he and Mr. X - an OTP intermediary - had planned to tell lies to the ICC investigators.  "I had to say that Thomas Lubanga had enrolled children in the army and I myself was amongst them," said the witness.  According to Witness 16, they both devised the story before meeting the investigators for the first time in Bunia in 2005.  The witness said that at the time he wasn´t aware that those individuals worked for the ICC.  "You said you met Mr. X in 2005 and you started to plan lies, but you say you didn't know to whom you would tell lies?"  Mr. Sachdeva raises doubts.

The trial attorney now suggests that, when the witness travelled to Kampala to meet the investigators for a second time, he knew that the ICC was conducting investigations about "very serious crimes".  "Someone from Ituri must have been aware of the crimes perpetrated in your country, right?" says Mr. Sachdeva.  The witness agrees.  "In fact when you started your interview [in Kampala] you told the investigators that you wanted to do something good for the people of Congo, do you remember that?" insists the lawyer.  But the witness no longer remembers.

Then, Mr. Sachdeva refreshes the witness´s memory by reading a passage from his interviews in Kampala and Bunia in 2005.  As Mr. Sachdeva believes his French is "relatively poor", he asks his colleague Ms. Samson to read out the excerpt.  She starts:  "...I arrived here entirely of my free will because I want to cooperate to find a solution in the Congo..."  "Perhaps that refreshes your memory?" asks Mr. Sachdeva.  "Yes, that´s rung a bell.  But I want to add something: I didn't know the investigators before I met them," says the witness.  But he had already met the two investigators in Bunia before his meeting with them in Kampala.

In Kampala, the ICC investigators interviewed Witness 16 for five days.  Witness 16 was alone, andMr. X was not present during the interviews.  At the meetings the witness was advised that he would be interviewed as a suspect.  "Do you remember you were informed that you had the right to have a lawyer to assist you? ...[that] you have the right to remain silent if you didn´t want to answer questions?" asks Mr. Sachdeva.  "Yes," replies the witness.  "But I want to add something: it was an event that surprised me, nobody told me about it before, otherwise I wouldn´t have come."

It was a total of six days of interviews which produced 36 hours of recordings and more than a thousand pages of notes.  The witness never received a copy of the questions that would be put to him.  The investigators put to him follow-up questions to previous answers or asked him to clarify certain areas of his testimony.  "You were giving answers spontaneously, weren´t you?"  says Mr. Sachdeva.  "Yes," replies the witness.

Every morning, Witness 16 came back to the interview voluntarily.

- "So, when you were asked questions about the UPC, you were lying?" asks Mr. Sachdeva. 

- "Yes," says the witness.

- "Do you remember being asked about your recruitment into the UPC?"

- "I have forgotten."

- "Do you remember having mentioned commander 'Romeo Tchali'"?

- "I cannot remember what I mentioned.  With respect to all these interviews it was all lies."

Ms. Samson reads another excerpt of the interview in which Romeo Tchali is mentioned by the witness.

"So this is another one of your lies?" insists Mr. Sachdeva.  "Yes.  I have never been in the army," says the witness.

But in his interview on the 1^st of October 2005, the witness provides a "very specific example" of punishments handed out in the UPC Mandro camp.  "Do you remember having said that to the investigators?" asks Mr. Sachdeva.  "I do remember," says the witness.  Witness 16 also provided some other specific names.

Mr. Sachdeva moves on.  "When you were back in Bunia, you were given two telephone numbers in case of emergency or protection concerns," he says.  "You called the emergency number to say you had been threatened and you wanted to be relocated... [and] you not only called the emergency number on that occasion but you called routinely  in the middle of the night when you were drunk demanding money."  "I don't remember," says the witness.

His final meeting with Lubanga´s lawyers was in August 2009.  "I heard the defence lawyers were around.  I was in my village, there were certain people saying I was still carrying on with the lies against Thomas Lubanga.  I felt I had to talk to the lawyers," says the witness.  The rumours about his cooperation with the ICC had caused him problems within his community.  Witness 16 is a Hema Nord or Gegere, which is Lubanga´s ethnic group.

"Did you tell the defence you lied to the OTP?" asks Mr. Sachdeva.  "I told them the truth about what we did, Mr. X and I," says the witness.  "I explained everything in detail, about the lies we fabricated."  However, Witness 16 never mentioned such a thing during his encounters with the investigators in 2005 and 2007.  "I didn´t have the time to tell them so," says the witness, immediately asking for a break.  "I have a headache."

After the break, Mr. Sachdeva comes back with a firm assertion: "You have lied to the OTP for the last four years, so you cannot be believed now.  What I suggest is that you are lying now," says the lawyer.  "No, I am not lying."

"I have no further questions, your honour."