Witness Testimony Deemed Prejudicial to Defence

Trial disrupted by new information from prosecution witness linking the two accused to Bogoro.

Judges in the Germain Katanga and Mathieu Ngudjolo trial agreed this week that new claims from a prosecution witness, indicating that both of the accused had been present during the Bogoro attack in February 2003, was prejudicial to the defence's case. Judges in the Germain Katanga and Mathieu Ngudjolo trial agreed this week that new claims from a prosecution witness, indicating that both of the accused had been present during the Bogoro attack in February 2003, was prejudicial to the defence's case.

The witness, who testified anonymously but without voice or face distortion, made these claims on February 26, but it wasn't until March 4 that the judges reached a decision on how to proceed.

Katanga and Ngudjolo are charged with ten counts of war crimes and crimes against humanity. Their charges relate to the destruction of the Ituri village of Bogoro, in which some 200 people were killed.

The witness – known only as Witness 161 – said that he saw Katanga personally take women and children, and heard cries during the battle of “Katanga” and “Ngudjolo”.

This is a new allegation that the witness did not make in previous statements, and prompted the defence to argue that this new information prejudiced the case against the accused.

“[This] totally changes the character of the witness and puts the defence on the back foot,” said Andreas O'Shea, a defence lawyer for Katanga.

Jean-Pierre Fofé, a defence lawyer for Ngudjolo, pointed out that the prosecution had interviewed the witness for more than ten hours in 2006, adding that, if these allegations could be substantiated, he would have made them then.

On March 4, Presiding Judge Bruno Cotte said that he recognised the prejudicial nature to the defence teams of the witness's revelation.

“The fact that this information is new has to be evaluated by the defence teams, not only in relation to statements previously made by this witness but also because of the fact that no other prosecution witness statement mentions this very same information,” Judge Cotte said.

The presiding judge added that the prosecution had confirmed, by email, that no other prosecution witness had made similar claims.

However, the judge dismissed any notion that the prosecution was at fault for not divulging this information in advance of the witness appearing in court.

“The chamber has noted that the defence teams recognise that the prosecutor complied fully with its disclosure obligations,” he said. “Defence teams both recognise having received in due time the witness statement [and] having received from the prosecutor a document which lists the main themes to be dealt with for each witness during the trial.”

Judge Cotte said that the defence teams could proceed with their cross-examination of the witness, but that it was up to them to decide whether to address these new revelations or not.

He added that the defence teams could carry out any investigations they deem necessary, based on the new information, with a view to reporting back to the court by May 3. The chamber would then decide whether to recall the witness, Judge Cotte said.

Once the witness was brought in to resume his testimony, he spoke about a group of Ngiti tribesmen, who were stationed on Waki Hill on the outskirts of the Bogoro village, that were instructed to slaughter anyone who tried to flee the fighting.

“Those on Waka [Hill] didn't go down..,” said the witness. “Those who were on Waka had the aim of staying in place and watching the people who were fleeing [in order] to exterminate them.”

The witness, who was hiding at the time along with his wife, said that he was spotted by the people on Waka Hill.

“The person who was responsible for watching the people who fled saw me and shouted 'there's somebody whose sitting there with a woman',” he said.

Blake Evans-Pritchard is IWPR's Africa Editor.