By Susan Kendi
A tug-of-war over whether or not to protect the identity of a witness in the Bosco Ntaganda trial at the International Criminal Court ended in the defence’s favour.
Lawyers for Ntaganda had asked that Witness D-0038 testify under protective measures in court, including face pixilation, voice distortion and the use of a pseudonym because of his concerns about the possible negative repercussions of his testimony. Defence lawyers pointed out that the witness was concerned that because of the nature of his profession, “he travels widely and comes into contact with a large number of people”. He had security concerns and the nature of his testimony which highlight “crimes committed by Lendu combatants and reveal the witness’s role at the time of the charges”, the lawyers added.
Prosecutors opposed the request on September 20, 2017 and requested to file a response in 20 days. On October 10, 2017, the ICC’s Victims and Witnesses Unit provided the protective measures as requested. The chamber granted the defence’s request saying it content that “an objectively justifiable risk with respect to the witness’s security exists, warranting the shielding of his identity from the public.”
Ntaganda, whose trial began in September 2015, has been charged with 18 counts of war crimes and crimes against humanity allegedly committed in Ituri Province of the Democratic Republic of Congo in 2002 and 2003.
Testifying in Kiswahili, with English interpretation, Witness D-0038 told the ICC judges about the training conducted by the Uganda People’s Defence Force (UPDF) in Chakwanzi, the required age for one to be recruited in the military, the massacre in Congo and measures that were put in place to prevent these massacres.
Here are excerpts from the Tuesday, October 21, 2017 proceedings, with lawyer Christopher M. Gosnell leading the witness:
Gosnell: Once you were in Bunya, who was organising the travel tickets to Chakwanzi?
Witness: Our group, which was the second group. What I can say, is the one who organised is Commander Mugabo. He was wearing uniform. When you say insignia, I don’t know what you mean.
Gosnell: Did the uniform indicate affiliation with a particular force?
Witness: I no longer remember.
Gosnell: Who conducted the training at Chakwanzi?
Witness: We were trained by the Uganda People’s Defence Force (UPDF).
Gosnell: How long did the training at Chakwanzi last, approximately?
Witness: I cannot provide a specific answer but I believe it lasted more than eight months.
Gosnell: Can you describe the training? What did the training comprise of? What did you learn in the training?
Witness: They taught us everything that soldiers are taught.
Gosnell: Were you taught on how civilians not participating in combat should be treated? Was that part of your training?
Witness: We were not taught how to deal with civilians but we were taught how to protect civilians, since we were told our job was to protect the civilians.
Gosnell: How were you taught to protect civilians during combat?
Witness: Normally, the purpose of the soldiers is to protect civilians and all their property. The army and its soldiers could not fight against civilians. The main aim of the army was to fight the enemy that had attacked the civilians.
Gosnell: Was there use of the concept, “kupiga na kuchaji”?
Witness: It is a strictly military term in Kiswahili. It means when you attack -- you can take all their weapons to weaken the enemy and this is the term used.
Gosnell: Does the term, “kupiga na kuchaji”, authorise taking goods of the civilians?
Witness: This term was purely military. It was not about taking property of the civilians. No.
Gosnell: How did you come to leave Chakwanzi?
Witness: Our group left there so that we could go to Équateur.
Witness D-0038 told Trial Chamber VI of the ICC how members of the armed group he was in were selected by Unicef in a manner that he did not understand.
Witness: They were preselecting people in a haphazard way. Those that were chosen were sometimes older than me… I don’t know the exact age but among them …there were older than me. I grew up with them… I don’t know the criteria that they (Unicef) used.
Gosnell: What was the youngest age of the member of the group?
Witness: I am not certain of the age of the young ones.
Gosnell: What is your estimation or impression of the youngest member of this group?
Witness: It is not easy to know someone’s age precisely if you have not grown up with them. But in the group, none of them was less than the age of military service. Military service according to Congolese law, you must be 18 years of age. Some might seem to have a small body size but they might be older and vice versa. What I know is that the Unicef selection was done without a precise criteria.
Gosnell: You are saying that the Unicef people were selecting with no criteria. I would suppose you do not know any criteria that they used?
Witness: It is true that I did not know the criteria but I knew one person that I grew up with, older than me but he was selected; that’s why I am saying that I do not know the criteria.
Gosnell: The group that went from Uganda to Équateur. What was the name of the overall commander?
Witness: It was General Amuli.
Gosnell: What was the name of the force that he was member of?
Witness: When we arrived in Équateur, he was the general officer of the staff in the group, NLC
Gosnell: After your time at Équateur, did you return to your home village?
Witness: After my stay in Équateur, I stayed for a few days in town and afterwards I went back to my village.
Gosnell: How did you travel back from Équateur to your home village? [What was your] means of transportation?
Witness: Équateur to town, I went by aeroplane. From the town to village, I went by foot.
Gosnell: Who was the commander of your group after you came back from with aeroplane?
Witness: We were with Commander Kisembo.
Gosnell: Was he the commander of the group?
Witness: Yes. I think that I have to give you some details about that. Before leaving Équateur, all the people from the East gathered together for a briefing and he spoke to us and told us that Nyamwisi had fled with the MLC and that we had to leave. Kisembo was a battalion commander. He was not a general at the time. We went to Kisengo on the border of Central African Republic (CAR) and after discussions we were able to take the plane and leave. We were all ready. We gathered together and left with Commander Kisembo. There were two groups. David came with the second group, which came three or four days later after we had arrived in town.
Witness: When I returned to my village, the massacre was continuing. The situation had not changed.
Gosnell: What kind of massacres were taking place, and who were committing [them]?
Witness: The massacres were committed by the Lendu.
Gosnell: Was your home village directly affected by these massacres? Was there any measures taken in your village to prevent these massacres?
Witness: Each village got organised in order to protect itself. There were structures set for that.
Gosnell: Did your home village have any weapons to defend itself from these massacres?
Gosnell: What weapons were there?
Witness: There were only AK47s.
Gosnell: How many AK47s did your village have at this time in total?
Witness: They were a few.
Gosnell: Where had they been obtained if you know?
Witness: From the information that I have, the weapons were bought from the Ugandans.
Gosnell: Did you participate in the defence of your village?
Witness: We had just deserted the army. One day, people wanted to attack our village but they did not enter. We went to the random villages to prevent them from entering our village.
Gosnell: Was there fighting?
Witness: Yes, there was.
Gosnell: Could you describe the nature of the fighting?
Witness: If I answer I will mention the name and the sessions.
(Court goes into a private session; then resumes.)
Gosnell: Did you later come to learn what role Bosco Ntaganda had in the FPLC?
Gosnell: What age communicated to you, would a fighter be old enough to go to Mandro?
Witness: They were people that had attained the age of undertaking the training.
Gosnell: What age?
Witness: I recruited people who confirmed they were 18 (years old).
Gosnell: Did everyone know their age, or were there people that did not know their age?
Witness: In the group, some people were coming with people who would help to determine the age. There were those that came and knew how old they are. In fact, I was also estimating the age and if I realized that they had not reached the age, I did not induct them.
Gosnell: Why did people need help to determine their age?
Witness: Like me, an example when I was recruited as a soldier, I did not go alone. I went with some friends. Some would help others, especially those who came with colleagues.
Gosnell: Could you explain to us in what circumstance you had to estimate their age?
Witness: It is easy to know if someone is very young or old. If they are very young or old you would know that by asking for the person’s age. The child may say he is old or not. It is for us to check if he is old enough to be inducted or not.
Gosnell: Were you ever disciplined in the context of participating with the FPLC? Were you the object of discipline within the FPLC?
Witness: So many times.
Gosnell: Were you ever put in prison as a discipline?
Witness: Within the FPLC, I have ever been imprisoned.
Gosnell: Why were you put in prison? Under what circumstances?
Witness: Within the FPLC I was in prison, when we were at location under our control and the battle had taken place in Barie. We went to interview at Barie and the enemy killed the chief of collectivity. Chief of collectivity is a figure in the community.I failed my mission to protect and that is why I was arrested. His name was Mbara Risasi.
Gosnell: Where was he killed?
Witness: He was killed in Risasi. The headquarter of the village…The capital of the village.
Gosnell: Was anyone else killed?
Witness: He was the only one killed that day. He was decapitated. We received communication that Chief Kawa had called us. He asked why we made it possible for the chief to be eliminated .We were detained for the first time and had to spend the night in Liguma where our soldiers were staying. That place is currently serving as a petrol station. We were detained for months but I don’t know about specific days.
Gosnell: What position did you assume when you went to Lingo?
Witness: Platoon commander. The troops that I was leading did not go anywhere. The (other) troops were to go to Mongbwalu. From Lingo, I was deployed to Loango. At Loango I spent a few months there, but I left Loango after the battle with the Ugandans.
Gosnell: While you were posted at Loango, did you go to other villages in the area?
Witness: When I was in Loango, it was my battalion commander who went there … I was the battalion commander in Luba then deployed to Blukwa. And these are areas I used to visit as well.
Witness D-0038 continued his testimony on Wednesday, October 18, 2017.
The first defence witness to testify in the Ntaganda trial was Witness D210, Olivier Dekana, who testified via a video link, for failure to obtain relevant documents to assist him to travel to the court. The witness testified with no court-protective mechanisms in place.
By Terry Jeff Odhiambo
Gambia stands as a testament to the glacial progress Africa is making in the sphere of human rights. With the country on the mend and efforts under way to bring former President Yahya Jammeh to justice, the African Commission on Human and People’s Rights could scarcely have found a better host country to hold its 30th anniversary.
The celebrations in Banjul, between November 1 and 4, 2017, come at a time of hope and restoration for the Gambia after the end of Jammeh’s 22-year dictatorial regime. Jammeh’s government was notorious for its disregard of international human rights norms despite ironically hosting the ACHPR. Arbitrary arrests, threats, enforced disappearances and torture were commonplace. There is still plenty of room for improvement. Attorney General Abubacarr Tambadou, who is also Justice Minister, told the opening of the 35th Forum on the Participation of NGOs in the 61st Ordinary Session of the ACHPR that notwithstanding the various strides made by nations in the application of human rights instruments, the full enjoyment of basic rights and freedoms since the adoption of the African Charter, continues to face challenges. The Justice minister reiterated that the new government of Gambia had reaffirmed its commitment to protecting human rights and to living up to its position as the human rights capital of Africa. As recently as September 2017 the Gambia, signed five international treaties on the margins of the United Nations General Assembly, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish abolition the death penalty. In the coming months, Gambia is committed to ratifying more human rights treaties, including the Convention against Torture, and adopting a new republican constitution within the shortest time possible and developing a system of justice that can look into past atrocities and sustain its democracy. The NGOs Forum, which is usually held on the margins of the ACHPR Ordinary Sessions, is a platform for fostering collaboration between civil society organisations on the one hand and the ACHPR on the other, with the aim of promoting and protecting human rights in Africa.
Human rights abuses in Africa are a sad reality. The tableau of human suffering on the continent is scar on humanity’s conscience. From South Sudan, to the Central African Republic to Egypt and Ethiopia, abuses are increasingly being witnessed more than ever before. As one of the bulwarks against this depressing trend, the work of the ACHPR since its inception calls for evaluation. The promise by states and governments to guarantee human dignity and rights – through almost universal endorsement of the Universal Declaration of Human Rights and ever-increasing ratification of international human rights treaties – seems to have had little impact on the daily lives of millions of people in the region.
The sad reality is that the human rights situation in various African countries continues to deteriorate on the ACHPR’s watch. There has been an escalation of threats to the enjoyment of human rights on the continent, ranging from arbitrary arrests, infringement of freedom of association and assembly, police brutality and threats to human rights defenders.
Since the inception of the ACHPR, seven states have never reported on the situation of human rights to the commission. The states -- Comoros, Equatorial Guinea, Eritrea, Guinea Bissau, Sao Tome and Principe, Somalia and South Sudan -- continue to witness some of gravest human rights violations on the continent. Twenty other states have three or more pending state reports -- including Gambia, while 16 other states have one or two pending state reports. Only nine states, namely Kenya, Algeria, Burkina Faso, Cote d’Ivoire, Mali, Mauritius, Namibia, Niger and South Africa are up to date with their state reporting obligations. The Democratic Republic of Congo, Rwanda and Niger are set to report during the 61st Ordinary Session of the ACHPR. State reporting procedure is a stock taking that serves as a forum for constructive dialogue and enables the Commission to monitor implementation of the African Charter and identify challenges impeding the realisation of the objects of the African Charter.
Some of the critiques that the Commission has received over time include the failure to implement its findings, such as decisions on: individual communications, concluding observations on State reports, country and thematic resolutions, and recommendations made in relation to missions to countries.
The 61st Ordinary Session of the ACHPR will see the swearing in of new commissioners and the exit of those whose terms have ended. The ACHPR is composed of 11 Commissioners, who are “chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples’ rights; particular consideration being given to persons having legal experience” (African Charter, Article 31). They are elected by the African Union Assembly from experts nominated by States parties to the Charter. The Commissioners serve in their personal capacity and are elected for a six-year renewable term.
The upcoming 30th Anniversary celebrations are an opportunity to reaffirm the values and enduring principles enshrined in the African Charter mobilize people around the continent, and take stock of human rights today in Africa.
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