The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • Good morning, Mr Witness.

  • Can I just say this to you that, if I ask you a question that you don't understand, please say so and I'll try to ask it in another way to make it clearer. Going back to where we left off yesterday, you said that the reason that you had told the Prosecution originally that you were present at the explosion which led to SAJ Musa's death was because:

    "Where the thing happened was not too far away from where I was standing ...", that is where the bomb exploded, "... and we were standing just outside the gates and it was just a roundabout that separated where the ammunition dump was and where we were standing".

    Do you recall saying that to the Court yesterday?

  • Yes.

  • Can you recall, Mr Witness, telling the Prosecutors in 2004, that's the second interview that you had with them, that you were in - sorry, that Kabila told you that SAJ Musa was dead and had been killed by bomb fragments because of a fire in the house where ammunitions were being kept?

  • May it please, your Honour, I'd be grateful if my learned friend could provide us with the reference. I realise that he's putting to the witness a statement which the witness made to the Prosecution.

  • It's the interview of 9 December 2004 and I believe the page numbers of some of these interviews have changed, but I am going from 00034643:

  • Let me just put that again to you, Mr Witness, so that you fully understand what I'm asking. Can you remember in the second interview you had - and I appreciate it's a long time ago, but can you remember telling the Prosecution that Kabila had told you that SAJ Musa was dead and that he'd been killed by bomb fragments because of a fire in the house where ammunitions were being kept? Can you remember telling the Prosecution that?

  • At that time I had made it clear that when they went and met me they said the things that happened they wish it would not recur again, so at that time I was a little afraid. I did not have confidence. And when they told me that it was a Special Court affair I was a little afraid, but later when they gave me confidence they asked me, they said I should explain the things, then I started explaining. And where we were standing and where the ammunition dump was, it was just a roundabout that separated the gate and the ammunition dump and so it was there that the bomb exploded. Myself, I saw it when the bomb exploded. I saw it live.

  • So it would not be right, would it, to say that you were in the bush when the explosion occurred?

  • If I were there I would have told them if I had incurred casualty, if I incurred wounding on my body, and if I would have said that Shyamala would have asked me where I incurred injury because I was there when the bomb exploded and hit SAJ.

  • Mr Witness, the question was that it would not be right to say that you were in the bush. It's not about whether you were injured. It's about where you were.

  • I was at the gate. I was standing there.

  • Let me just ask that question again, please. If you were at the gate and you were standing there it would not be right to say that you were in the bush when the explosion occurred, do you agree?

  • We were all not in the bush, we had all come now into the town, but they did not allow us to enter the barracks. That was where they stopped us, at the gate. We were not in the bush no longer at that time. We were by the gate of the barracks.

  • Thank you. Had there been a fight the night before between the RUF faction and the SLA faction?

  • Where are you talking about?

  • The night before the explosion, or even the night of the explosion?

  • Your Honour, I believe there's no evidence before this Court that an explosion took place at night. That might be misleading to the witness.

  • First of all, Mr Bangura, counsel for the Defence is entitled to put his case to the witness and, secondly, he didn't actually say the explosion took place at night. He said, "The night before the explosion, or the night that the explosion - or the time the explosion occurred".

  • My understanding is that he put it to the witness in two alternatives, the night before or the night of the explosion, and of the explosion - the night of the explosion to me --

  • To take a completely different example we can talk about the night of the coronation, but that doesn't mean to say that the coronation took place at night. It means the night on the day that the coronation occurred.

  • It might be wise to avoid ambiguity. In fact if you are putting two separate days, the night before and the day it occurred, strictly it should be put as two separate issues, Mr Munyard.

  • Yes. I think, Madam President, you appreciate what I'm working from.

  • And so I'm not entirely clear in my own mind, but I'll clarify it with the witness:

  • Mr Witness, what time of day did the explosion occur?

  • Well I did not know the particular day, but it was at night that we got there.

  • You were at the gates on the roundabout, you told us, when the explosion occurred. What time of day or night was that when you were at the roundabout outside the gates when the explosion occurred?

  • It was almost in the morning hours.

  • Does that mean in fact that it was at night, but close to morning?

  • So although I didn't actually intend to say that it occurred at night when I asked you the original question, you're now saying that it did actually occur at night, are you?

  • It was almost at night. I can say it was in the morning, because it was almost early in the morning. We were there until the morning before we left to go to the bush.

  • Right. Back to the original point of that line of questioning, was there a fight between the SLA faction and the RUF faction around the time of the explosion?

  • The time we got there our elders had already taken over the barracks.

  • Was there a fight between the RUF faction and the SLA faction?

  • Mr Witness, do you understand the question?

  • Yes. Yes, there was fighting, but before we got there the fighting had subsided.

  • I'm not sure which - whether the witness understands. You see, there were soldiers at Benguema barracks I would imagine, I don't know, ECOMOG, SLA, I don't know, but I think the question you're asking, Mr Munyard, is infighting?

  • You're asking about infighting and I think you need to make that distinction.

  • Yes, very well, your Honour, I will. Thank you:

  • When I'm talking about the SLA faction I'm talking about AFRC, do you understand?

  • The question that you asked me, the SLA, the Sierra Leone soldiers, used to train at the Benguema barracks, so when we went before we got there our advanced team had already conquered the barracks. They had already taken over the barracks before we got there.

  • So by SLA are you talking about the government soldiers, or are you talking about AFRC soldiers?

  • I'm talking about the government soldiers.

  • Right, thank you. Your Honour, Justice Sebutinde, you are quite right that I was working perhaps on a false assumption there:

  • All right. Well, let me just ask you this then. Can you remember saying to the Prosecutors the second time that you saw them, that is December 2004, that the RUF defeated the SLA and entered into Benguema? Can you remember saying that to them?

  • And then saying to them that, "We were in a bush where there is a thick forest for the rest of the day"? Do you remember saying that to them?

  • That was at the time we had now left the Benguema barracks. When I said we went to the forest, that was the forest where we were where they buried SAJ.

  • Thank you. Do you remember telling them, "In Benguema we broke into shops and looted"?

  • That was after they had buried SAJ. In the evening, whilst we were coming down towards Benguema again, when we got there we started breaking into shops and when we took the highway we went up to Waterloo we did the same and then we went to Freetown.

  • Mr Witness, don't worry about the explanation. I just want to find out from you if you remember saying these things to the Prosecution, do you understand? Do you remember saying, "We spent the night there and in the morning Kabila told us that SAJ Musa was dead"?

  • I told them that we were there for the whole day and it was in the evening that we left there and went that we headed for Freetown.

  • Well, I'm just asking if you remember these things that I'm reading from interview notes taken when you were interviewed in December 2004. Can you remember telling the Prosecution that, "... in the morning Kabila told us that SAJ Musa was dead"?

  • That was not how it happened.

  • Mr Witness, it is not - counsel is asking about what you told the Prosecutors back in December 2004. He's asking did you say these things, or did you not say these things?

  • Which things? Go over that.

  • All right. Mr Witness, I'm not concerned with the story now, with what actually happened, but I just want to know if you remember saying these things to the Prosecution. Can you remember saying to the Prosecution, "... in the morning Kabila told us that SAJ Musa was dead"?

  • No.

  • Can you remember saying to the Prosecution, "He was killed by bomb fragments because of a fire in the house where ammunitions were being kept"?

  • Thank you. And can you remember saying to them, "I was in the bush when I heard the explosion"?

  • And then saying, "SAJ Musa's body was taken to the forest in a hammock by soldiers"? Can you remember telling them that?

  • I said - no, I did not say so. That was not what I said.

  • You didn't say that to them?

  • No, they were not soldiers. It was those of us that came that took SAJ's body to the forest, not the soldiers who were in the barracks.

  • Madam President, your Honours, I didn't reproduce all of this witness's statements, but I do have a clean copy of most of them, just the one, and I wonder if it would be helpful if it went on to the screen so that the witness can see it? I don't know what the arrangements are in terms of the protective measures here, but I'm in the Court's hands as to how public or otherwise this can be.

  • Is there any indication as to who the witness or the person making that statement is?

  • Well, there is a signature at the bottom.

  • And the witness's name at the top as well.

  • Oh, is there?

  • Oh, yes, absolutely right. Yes.

  • Then we have a problem.

  • Yes. In that case perhaps I can just have it shown to him, while he follows what I'm saying, and then it can be shown to the Court?

  • Your Honours, it has - it was not fully established in examination-in-chief the level of education of this witness in English. Prior to commencing my examination-in-chief I did ask the witness whether he could read and write English and he said "Yes", but it may be that that was only for the limited - to a limited extent. I personally understand his level to be one that is --

  • Well I'm going to stop my learned friend there for various reasons, not least of which I don't want him giving indications to the witness intentionally or by accident. I can establish with questions the capacity of the witness to follow what is written down.

  • Very well, your Honour.

  • Can I also add that I'm told that in the past the AV booth has managed to operate the system whereby what's on the screen isn't broadcast. I mean I'm personally happy to adopt the procedure I've suggested, showing it to him and then showing it to the Court so that you can see that I'm reading accurately from the statement, but if the AV booth is able to use the screen without broadcasting the document then that may be the simplest way of dealing with it.

  • The other matter that I have not had clearly established is what language this record of interview was conducted in and whether it was subsequently interpreted and, if so, by who.

  • It was conducted in Krio and there was an interpreter called Teresa Kargbo. Madam Court Officer is finding out if it can be broadcast on the screen without going beyond the courtroom.

  • Your Honour, the relevant technician is not there right now, but they are trying to contact him.

  • I think we will proceed on without putting it on the screen.

  • Yes, I was just going to say let's go on without that. I'm not proposing spending a great deal of time on this. Thank you, Madam Court Officer:

  • Now, Mr Witness, if you look at that page in front of you can you see your name at the top left-hand corner of the page?

  • Which one? Which number?

  • Madam Court Officer will point to your name at the top of the page.

  • And can you see a sentence at the top of the page that starts, "In another village ..."? It is the very first sentence just underneath your name.

  • And can you just - sorry, I think that was the interpreter. Can you just read that sentence out to us?

  • Can you read it out loud to us?

  • "In another village Kabila said that O-Five had ordered to kill all the people captured from now".

  • Right. Can I ask the interpreter not to interpret at this moment, because I would like - the witness is reading in English and I'd just like him to read the next sentence also in English. Would you carry on from where you left off where you finished "captured from now on"?

  • "One woman, two old men and two child where killed".

  • Yes, two children were killed. Yes, thank you. So you don't have any difficulty reading that English, do you?

  • Thank you. I'm going to take you to the - do you see a big paragraph with a lot of words in it starting, "When we reached Benguema ..."?

  • And I'm going to take you through that paragraph, but I'm going to start halfway down. Five lines from the beginning of that paragraph there is a sentence that starts on the right-hand side with the words, "The RUF ..." Do you see that? Madam Court Officer will show it to you. Do you see that, Mr Witness? Can you just tell us that you've seen it? I'm going to ask you to read it out. Mr Witness, would you read that out to the Court?

  • "The RUF defeated the SLA and entered into Benguema".

  • Thank you. Just carry on until I ask you to stop.

  • "We were in a bush, it's a thick forest, for the morning Kabila told us ..." --

  • No, I think you've gone one line too far. "We were in a bush where is a thick forest ..."?

  • Just carry on after "thick forest".

  • "... in a thick forest of the day in Benguema".

  • No, let's just try that sentence again. Does it read - let me read it to you and you tell me if you agree.

  • "We were in a bush where is a thick forest for the rest of the day." Is that what it says?

  • I had made correction on this page.

  • Mr Witness, we'll come on to that in a moment. I just want you to tell me if what I'm reading out is the same as what is written on that page. Do you understand?

  • Now, I will read it out and would you tell me if I'm reading it correctly. Look at the page, not at the Prosecution:

    "We were in a bush where is a thick forest for the rest of the day. In Benguema we broke into shops, looted."

    Is that correct?

  • Yes.

  • "We spent the night there and in the morning Kabila told us that SAJ Musa was dead", is that correct?

  • Thank you. "He was killed by bomb fragments because of a fire in the house where ammunitions were being kept", is that correct? Have I read that correctly?

  • "I was in the bush when I heard the explosion." Have I read that correctly?

  • "SAJ Musa's body was taken to the forest in a hammock by soldiers." Have I read that correctly?

  • "I did not see SAJ Musa die myself." Have I read that correctly?

  • All right. Now, you've said that you made corrections to this. When did you make the corrections?

  • It was in December 2007 that I made correction regarding this page.

  • All right. Well, we'll look at December 2007. Now you were indeed interviewed in December 2007, on 7 December 2007, and you did say some things about the time that SAJ Musa was killed, but unless I have got it wrong you didn't actually correct the part that we - the passage that we've just been looking at. As far as I can see, the only thing that you said about the time of SAJ Musa's death when you were questioned in December 2007 was that the captured priest did prayers when SAJ Musa died. Now, are you saying that you did some other corrections in December 2007 to the passage that we've been looking at? Mr Witness, did you understand my question? Are you saying that you made some other corrections in December 2007 that don't appear in the written record of what you told the Prosecution in 2007?

  • Yes.

  • All right. Do you understand that I'm reading from the notes of your interviews and that, if I'm saying anything that's wrong, members of the Prosecution will interrupt and point out my mistake? Do you understand that?

  • All right. Now in 2008, about three weeks ago, in the middle of April, you did indeed clarify some of the things that you'd said in your very first statement, that's to say the 7 April 2003 account, and you said - and I'm looking at page 00100482. You said:

    "Witness states he was not present at the scene himself when the explosion that killed SAJ Musa occurred at Benguema barracks. His narration of events was based on information he received from Kabila, who was present."

    Do you think that's maybe what you're thinking of when you say you corrected something closer to the present time?

  • Yes.

  • But what you were correcting close to the present day was your original statement where you had told the Prosecution that you were present when SAJ Musa - when the explosion occurred that eventually led to SAJ Musa's death?

  • Yes.

  • And that was what I first started asking you about yesterday afternoon, because in that very first statement what you're recorded as telling the Prosecution was that:

    "After ammunition was looted at Benguema, fire was set on what remained and that SAJ came upon the scene and peeped and enquired who did it. As he was being given the answer by Junior Lion, a bomb exploded and killed SAJ Musa. Witness said he was present and was standing behind Kabila at the time in a very big store."

    You corrected that later, but you corrected that just three weeks ago. Can you remember the first time you give an account of these events actually telling the Prosecution that you were present standing behind Kabila in a very big store?

  • That was at the gate. The roundabout separated us. My boss stood around the roundabout and I said I just stood behind him. That was where we were.

  • In a very big store? Do you remember saying that to them?

  • Right. Now that's different from saying, "I was in the bush when I heard the explosion", isn't it?

  • Yes, because we were not in the bush. We were by the gate.

  • So why is it that you told them in the second interview, "I was in the bush when I heard the explosion"?

  • Well I had said at that time I did not recall all the events that happened, but whilst I went over them on and again I recalled most of the things that I went through and so I was able to tell them the facts.

  • Do you agree, Mr Witness, that you have told the Prosecution contradictory stories of your being near the explosion that occurred that led to SAJ Musa's death?

  • At that time, yes, I told them that and I later made the correction.

  • So, why did you tell them that you were in the bush when the explosion occurred if you weren't in the bush?

  • Benguema is not a bush. It was a barracks.

  • Let me just ask that question one final time. Why did you tell them that you were in the bush when you heard the explosion if that's not true?

  • At that time I did not have much confidence, because I thought they were hunting those of us who had taken part in the war, or because they had said that the things that we went through we should not recall them in mind again and more or less they were trying to bring peace so that nothing of the sort would reoccur again. It was after they gave me confidence that I was able to tell them exactly what happened.

  • So the first story that you told them was untrue and the second account was true, is that what you're saying?

  • The second one is true, is it?

  • Which second one? At that time I did not recall all the things that happened to me and it was only when I went - when I thought over it over and again that I was able to put things in place.

  • Right. So the first time what you told them wasn't right and then when you gained confidence you then told them the truth, did you?

  • Yes.

  • So the second account, which is that you were in the bush when the explosion occurred, is the correct account, is it?

  • We were not in the bush when the explosion took place. We had all come trying to enter the barracks.

  • Mr Witness, the time when you told the Prosecution that you were in the bush is more than 18 months later than the first time you were interviewed by the Prosecution. It is the time by which you had gained confidence in them, isn't it, and were willing then to tell the truth? Is that not right?

  • I have taken my oath. I will not come here to tell lies. Where I am seated here right now, I am saying the truth.

  • Had you gained confidence in the Prosecution in the 18 months since the first interview? Don't look at the Prosecution. They won't help you. Just look at the judges, please.

  • Mr Witness, remember what I told you yesterday about your looking.

  • Yes, it will not happen again. Yes, I gained confidence to explain everything because they had told us that the things that happened in our lives should not recur, so I also decided to say the truth so that we would have peace reign in our lives.

  • Right. I'm going to ask you about something else now, please. When did you first meet and see Adama Cut Hand?

  • I saw Adama Cut Hand the time I came to Allen Town.

  • So the first time you see her is when you're in Freetown, is that right?

  • Yes.

  • And you didn't see her at Koinadugu?

  • And you didn't see her at Benguema?

  • I did not see her there. I said it was when I got sick and when I went to Allen Town I was seated by a house and it was her boys that took me to their own house where they were.

  • Thank you. Can you remember in the first interview with the Prosecution saying that Adama Cut Hand was your immediate boss at Koinadugu?

  • You said - please, go over the question.

  • Can you remember telling the Prosecution the first time they interviewed you that Adama Cut Hand was your immediate boss at Koinadugu?

  • No, it was Kabila who was my boss since the day I was captured up to the time we went to Freetown.

  • Your Honours, for the purpose of the record I'm going to read something from page 00034646, and again so that the witness is not disadvantaged I will provide a clean copy of that page.

  • This is the interview of when, Mr Munyard?

  • 7 April 2003, your Honour:

  • Now, Mr Witness, I'll do the same as I did before. I will read out various sentences and Madam Court Officer will show you where they are and you tell me if I'm reading correctly what is written on the printed page. We'll start on the very first line, about two-thirds of the way along, with a sentence that reads as follows, "Witness said whilst they were in Koinadugu they had two camps." Have I read that correctly?

  • "They split into two. One group mixed with AFRC and RUF camped in the upper part of Koinadugu and were headed by SAJ Musa ..." Have I read that correctly?

  • "... whilst the group in which the witness was and led by O-Five stayed in the lower section of Koinadugu after climbing the hill into the town." Have I read that correctly?

  • "The next person to O-Five in their own group was Kabila." Have I read that correctly?

  • "And the next to him was one Mohamed, who was a lieutenant and an AFRC." Have I read that correctly?

  • "Witness said Adama Cut Hand was next to Mohamed and that she was in charge of the small boys group that was known as Cut Hand Group ..." Have I read that correctly?

  • And that sentence carries on, "... the group that was known as Cut Hand Group to which witness said he belonged." Have I read that correctly?

  • I had made correction regarding all these ones. You read it correctly.

  • Thank you. And does the next sentence read, "Adama Cut Hand was witness's immediate boss." Have I read that correctly?

  • Yes.

  • And do you then go on in the next sentence to say that, "Witness said their group had communicated to other groups and it was Junior Lion who was in charge of the communication set"?

  • So you're dealing there with events at Koinadugu in what I've read out, aren't you?

  • Well, when we went to Koinadugu and it was - the questions were about Freetown, Allen Town, but the boys with whom we went to Koinadugu, some of them were with Adama. It was those boys who took me and said, "This is Kabila's own boy". And later the next boss who took me up was, like I said, Adama, but from the time I was captured the man who captured me was Kabila and he was my boss up to the time we went to Freetown.

  • So I'm right, aren't I, that in that passage that we've been looking at you're dealing with events at Koinadugu, yes?

  • You know when they interviewed me at a point in time the next time they come they would interview me again, so at that time what I told them was not the correct thing and then when they read it over to me I told them - I said, "No". At that time I did not even know most of these people. The group that O-Five headed was the group that captured us and we went to Koinadugu.

  • Mr Witness, when you told them about Adama being your immediate boss next to Mohamed at Koinadugu were you just mixed up or confused, or were you telling them something that you knew wasn't true?

  • At that time I was not having the peace of mind, because when at any time I recalled the things that I went through I felt it so much, even when as I am speaking now.

  • Let me try that again. When you gave them that account in the first interview were you just mixed up, or were you deliberately telling them something that you knew was not the truth about Adama Cut Hand being at Koinadugu?

  • If I told them deliberately? Go over that.

  • In that first account when you were putting Adama Cut Hand at Koinadugu was that because you were just confused or mixed up, or was it because you were deliberately telling them something that you knew wasn't true?

  • That was the - those were the last things that happened to me that I recalled. Like when we came to Freetown, the things that happened to me there were the last things and so they were the things I recalled very swiftly.

  • Well, I'm going to move on from that. I don't know if the Court wants that pursued? I wasn't planning on pursuing it.

  • Very well, Mr Munyard, please proceed.

  • I'm now going to ask you about another passage in that same interview on page 00045569 - sorry, it's now in its third incarnation in terms of the numbers. It's actually now page 00034647. The page I'm going to hand to the witness has got two totally different numbers on it, but it is the same page and it's actually the very next page of the same interview for the purposes of the record.

    Mr Witness, this is the next page of the record of what you have said to the Prosecution in April of 2003 and I'm going to ask you about a passage just over halfway down the page. On the right-hand side there is a line that has "Lieutenant Mohamed" in it, which I think is an easy name to spot. Immediately below that, on the next line, there's a sentence at the very end of the next line that starts, "Witness said when they got to Waterloo ..." Do you see that.

  • Yes, here.

  • And I am going to ask you about that passage now and tell me if I'm reading correctly, please:

    "Witness said when they got to Waterloo there was a fight, but not a big one as there was little resistance from the Sierra Leone Army."

    Is that correct? I mean, have I read that correctly?

  • "Many people were captured and houses burned and that they went to the Benguema military training centre where they looted arms and ammunition." Have I read that correctly?

  • "At this juncture witness said another group, which included Gullit, Five-Five and Superman, came from Makeni to join them." Have I read that correctly?

  • Yes.

  • "Witness said the group told them they had come all the way from Makeni to join, but does not know whether there was communication with them from his own group." Have I read that correctly?

  • "At that time witness said he saw most of the commanders together ..." Have I read that correctly?

  • And does that sentence carry on, "... including Junior Lion, Gullit, O-Five, Five-Five, Superman, Kabila, Adama Cut Hand, Lieutenant Mohamed and Lieutenant Komba so far as he could remember." Have I read that correctly?

  • And does that page end with a sentence that I've already read to you, "Witness said after ammunition was looted at Benguema, fire was set on what remained and that SAJ came upon the scene"? Well you won't have the next page, but that's the passage we looked at earlier. Is that how that page ends?

  • So when you were telling the Prosecutors in April of 2003 that you saw Adama Cut Hand at Waterloo were you just mixed up, or were you telling them something that you deliberately knew wasn't true?

  • Well, I had put all the command - the names of the commanders on a list and when we went up there now, when we went to Freetown, I was just calling the names of the commanders that I knew. So, these are the names that I called.

  • But when you were being asked questions about these events in 2003 that was much closer to the time that these events had happened than we are at the present time, wasn't it?

  • And when you were being asked questions about who you met at Koinadugu and at Waterloo you were having to go back in your mind to remember who was there and what they were doing, weren't you?

  • And so you weren't just listing all the names of commanders you knew. You were listing the names of people who you claimed to remember being at either Koinadugu or Waterloo, weren't you?

  • Yes.

  • So, why did you include Adama Cut Hand in both Koinadugu and Waterloo when your memory could not have put her there if in fact you didn't meet her until later when you got to Freetown?

  • The place where I joined her was in Freetown, that was the last area where I joined her, and she was my last commander there. That is in fact why the incidents that we passed through with her, those are the ones I recalled.

  • Well again, Madam President, I'm not going to pursue that unless the Court wishes me to? No. Thank you:

  • Did you actually see Superman at Koinadugu?

  • Did you see Superman at Waterloo?

  • No, it was my boss that told me that he was amongst the group that came. That is Kabila.

  • So what you said about him back in April of 2003 wasn't true either, is that right?

  • How?

  • By saying in that list of people who you saw at Waterloo that Superman was amongst them?

  • I said it was a group that came and joined us at Waterloo, when they came from Makeni, and at that time we had now moved from Benguema when the group came. When we came from Benguema, by the time we got there at the junction we saw that shops were now on fire and there were lootings going on.

  • Mr Witness, I'm only asking you about whether or not you saw Superman at Waterloo. You've told us that you didn't, although it appears that you told the Prosecution in April 2003 that you did. I'm not asking you about what was happening, just who was there. Do you understand?

  • Yes.

  • And just help us with this. How was it that when the ECOMOG soldiers captured you from the mosque in Allen Town that you managed to in effect escape?

  • I was in the mosque and the Pa who owned the mosque, when he came and opened the mosque he saw me in there and he locked it again and went and invited the Nigerians.

  • Your Honours, my learned friend makes mention of the fact that the witness escaped. I don't think there is evidence before this Court that the witness did escape.

  • I'll clarify. I accept my learned friend's point. I will clarify it:

  • How was it that after you had been handed over to the ECOMOG forces that you ended up being released?

  • When they brought me they were about to go and kill me and the head of the officers who was at the checkpoint, the Sierra Leone Police, they called him. They said before - he told them that before they could do anything to me let them take me to him so he would conduct some investigation.

  • I see. Would your Honour give me just a moment?

  • Thank you very much. Those are my questions.

  • Thank you. Mr Bangura, re-examination?

  • Yes, your Honour, just a few questions.

  • Mr Witness, in answer to questions put to you by counsel for the Defence you did make reference to corrections that you had made to statements - to your previous statements - that you made in your first and second statement. Do you recall that?

  • In relation to the incident regarding the death of SAJ Musa at Benguema, do you recall making a correction --

  • -- of your previous statement on that point?

  • Incidentally, Mr Bangura, we've just been informed that the technician who can show the documents in the courtroom only is now in place. We've just been given that information, so if you want to display something --

  • Yes, that would be helpful, your Honour.

  • Unfortunately, Mr Munyard, he wasn't in position whilst you were cross-examining.

  • That would be most helpful. Your Honours, I will be seeking to show the witness a statement, or an interview note, but we are trying to get a clean copy of it. We have a difficulty in getting a clean copy. I shall try to read to the witness and I believe my learned friend has got a copy of the last interview notes that we took from this witness.

  • Have you a date?

  • Madam President, I seem to have everything twice, but with a whole series of different numbers, and so if my learned friend can indicate to me a date?

  • Well, I shall be dealing with the additional information provided that covered an interview with the witness on 16, 17 and 18 April 2008. My learned friend referred to it.

  • Which of the three days, or they're all in one piece?

  • All of these are in one document, your Honour.

  • Yes, while I look for that can I also correct one thing. When I was giving the list of occasions on which the witness was interviewed I omitted corrections that he made on 19 March 2008, so that was another occasion on which he was interviewed. I will just look and see if I've got the April --

  • To assist my learned friend, it's - the first page ERN number is 00100481 and it runs for nine pages ending at 00100489.

  • It looks as though that is the only thing that I haven't got twice, I'm afraid. I've got everything else up to the 18 and 19 March 2008.

  • At least, Mr Bangura, if you can read whilst --

  • Well, my learned friend was reading from this very statement this morning.

  • Yes, I'm saying I haven't got that one twice. I've got a marked copy. I thought I was being asked for an unmarked copy.

  • It's a clean copy you're looking for, Mr Bangura, and since we haven't got a clean copy to hand I'm saying read.

  • Mr Witness, first in relation to the death of SAJ Musa, and I'm reading from page 2 of this document, ERN page number 00100482, did you make this correction to the Prosecution and I'm reading the part of this document that makes that correction, "clarification of statement dated 7 April 2003", and the clarification is in respect of page ERN 00034648. Your clarification related to lines 2 to 5 on that page. Did you make this statement, that you were not present - I will read specifically:

    "The witness states that he was not present at the scene himself when the explosion that killed SAJ Musa occurred at Benguema barracks. His narration of events was based on information he received from Kabila, who was present."

    Did you make that correction to your statement?

  • Yes.

  • I have actually read all of that word for word to the witness earlier and he agreed. I don't know if this is going to be developed, but I think we have covered that point.

  • It has been put, Mr Bangura.

  • It has been put, your Honour, but the position where we are left at is one where it is not clear what the witness's final position has been on this point.

  • Very well, ask the question.

  • It needs clarification:

  • With regards to Adama Cut Hand, counsel asked you questions about whether Adama Cut Hand was your immediate boss at Koinadugu. Do you recall that?

  • And you said she was not your immediate boss, do you recall that?

  • Yes, that's what I told him.

  • You agreed with him that the statement - you agreed with him that this fact appeared in a statement which you made before, is that right?

  • Now, I'll read to you what you gave to the Prosecution in your interview running through 16, 17 and 18 April regarding this point.

  • Of which year?

  • Of April 2008, your Honour:

  • Now, you corrected your statement dated 7 April 2003 and the page you corrected is page ERN 00034646. Now, do you recall saying this to the Prosecution and I read, "Witness only met and worked with Adama Cut Hand when the group entered Freetown. Before that time he had only heard her name"? Do you recall saying that to the Prosecution?

  • I'm sorry, I'm following but not following because I'm looking at a correction that says, "Witness only met with Adama Cut Hand for the first time when they entered Freetown. He heard her name, but had never seen or met her before this time." Are we on that one, or are we on another one?

  • I'm reading from the first page and I'll read - I'll be reading from page 00100481.

  • I'm sorry, I was looking at 483 where he corrects another placing of her at Koinadugu cooking for SAJ Musa.

  • Yes, I'll go on to read that as well. Your Honour, that will suffice. That makes the point about his knowledge of Adama Cut Hand.

  • Well my learned friend has said he will read that one as well, so I'd be grateful if we could have that one dealt with as well. It's originally page 34642.

  • Very well, I'll deal with that.

  • And if that can be read out and the correction that's on 10483 can then be read out.

  • You also corrected your statement dated 9 December 2004, Mr Witness, and the page you corrected dealing with Adama Cut Hand is page ERN 00034642. Is that correct?

  • And line 16 to 17 of that page is what was corrected. Do you recall saying this to the Prosecution that:

    "Witness only met with Adama Cut Hand for the first time when they entered Freetown. He heard her name, but had never seen or met her before this time"?

    Do you recall saying that to the Prosecution?

  • And can we have the passage then that is being corrected with what's just been read out; the passage in the middle of page 34642.

  • I believe the reference has been given, the page and the lines, or the statement, the page and the lines that are corrected by this statement which the witness made. I shall go over that if --

  • Mr Munyard, are you directing re-examination, or are you objecting?

  • No, my learned friend said he would deal with the second correction and it doesn't make sense just to read out the correction. What should be read out is the first account and then the correction. Otherwise the correction is pretty pointless, with respect, and my learned friend did say he would deal with it.

  • Your Honours, I propose and I have been dealing with matters to do with the witness's prior contact and knowledge of Adama Cut Hand and the fact that she was - it is stated in a previous statement that she was the witness's boss. The first correction has clearly dealt with the fact that the witness never saw Adama Cut Hand before.

  • It was a reference to a previous statement that Mr Munyard says has not been put.

  • I am not very clear with what my learned friend is getting at, but I have made references to --

  • I can deal with it very shortly indeed. It is just two lines, "It is in Koinadugu that I saw Adama Cut Hand for the first time. She was cooking for SAJ Musa. I saw her again in Benguema. In Freetown she was in charge of cutting hands", and then the correction is the correction that my learned friend has just read out. That's all. I haven't - there are numerous of these points. I have chosen not to go into all of them, but just to present as global a picture as possible. As this one has been raised, I thought it only right to have it dealt with properly.

  • Your Honours, for correct references I have said that the subsequent - the second of these corrections that I read to the witness referred to or deals with a statement which the witness made on the --

  • Mr Bangura, you have the record of interviews. You and counsel for the Defence have the record of interviews in front of you. We do not. From what we are now told what was originally said has not been brought out either in evidence-in-chief, or cross-examination, and there is a correction. Therefore, we now note what was originally said and note it and you put what the revised addition was so that the witness can comment.

  • It has been put already, your Honour.

  • So, the two parts have now been put to the witness?

  • Well, the witness has not commented on the part that Mr Munyard has read out.

  • Your Honour, I have only dealt with the fact that Adama Cut Hand was not the boss of this witness and that the witness never met Adama Cut Hand before. That settles all of the other issues contingent on this.

  • Mr Bangura, I sit here as one of the judges on this Bench utterly confused at this procedure that counsel have chosen to adopt where the Bench has no reference, we're not looking at these statements, neither does the witness and the two of you are not even agreed on the version that you're reading. I just wonder where that leaves the record as far as this witness's credibility is concerned. You are saying that you're trying to re-examine this witness, but honestly speaking this really leaves a lot to be desired with the Bench not having access to these statements that you're reading out to the witness, the witness himself not having access and the two of you not agreeing on the text. I sit here and I'm just keeping quiet wondering what to make of the whole of the last three pages of this record really. An improvement has to be done.

  • Your Honour, a better way we can deal with it is by putting to the witness without reading necessarily text, unless my learned friend disagrees on what --

  • That is precisely my point. The two of you have not agreed. The two of you that do have these records don't agree and you cannot even come up with one clean record that can be put on the overhead for the benefit of the judges and the witness. What are we doing?

  • Your Honour, I have a clean copy of all but that last correction interview and here is the page that I was referring to that was corrected in April of this year. I'm afraid again the number is different from the final ERN number, but it is I believe 00034642. I have got clean copies of everything but that final correction interview.

  • Mr Bangura, what's happening?

  • Your Honours, the best way we would have gone about this is to put the document up so that everyone can see, but the problem is I have a copy which is marked. My learned friend - oh, we've got a clean copy finally.

  • Again, I would remark that we still don't know what language this record of interview was conducted in and whether it was interpreted.

  • Your Honour, this is the one that was interpreted - it was in Krio and it was interpreted by Teresa Kargbo on 9 December 2004 and I have supplied a clean copy. The only question is the number at the top of the page, or numbers, but --

  • Well, as long as you're ad idem that it's the same record of interview.

  • Your Honours, we started off initially with my learned friend putting these questions to the witness and for the best part where those statements that were put to the witness were correct the Prosecution did not take an issue with them. So far what I have been trying to do is to ensure that where the witness corrected those previous statements the corrections --

  • Mr Bangura, I'm clear what you're trying to do. We're wasting a lot of time on trying to get the information before us. As Justice Sebutinde has correctly pointed out, we don't have these records. We need to know what was said. I have already pointed that out also.

  • Mr Witness, in a previous statement which you made and which counsel read to you it is stated in the statement that:

    "It is in Koinadugu that I saw Adama Cut Hand for the first time. She was cooking for SAJ Musa. I saw her again in Benguema. In Freetown she was in charge of cutting hands."

    Now do you recall that being put to you by counsel for defence?

  • Yes, he asked me and I told him that Adama Cut Hand was my last boss in Freetown.

  • You did make the point that you did not see Adama Cut Hand in Koinadugu, you did not meet her in Koinadugu, correct?

  • And that you had corrected your previous statement on this point, correct?

  • Yes, I had made that correction.

  • Can the witness be shown the additional information dated 16, 17 and 18 April 2008, page 00100481, the portion which starts with page ERN 00034646, second point:

  • Mr Witness, in your correction that you made to the Prosecution did you say this:

    "Witness only met and worked with Adama Cut Hand when the group entered Freetown. Before that time he had only heard her name."

    Did you say that to the Prosecution?

  • Yes.

  • Can the witness be shown page 00100483 and I'm reading under page ERN 00034642, the fourth line or fourth point:

  • Did you also say further to the Prosecution the following:

    "Witness only met with Adama Cut Hand for the first time when they entered Freetown. He heard her name but had never seen her before this time."

    Did you also say that again?

  • Now further counsel asked you questions about Superman, whether you had seen Superman at Koinadugu and later at Benguema. Do you recall that?

  • He read to you a statement in which it is stated that you had seen Superman at Benguema and at Koinadugu. Do you recall that?

  • Yes.

  • You denied that you had not met Superman yourself before, neither at Koinadugu or at Benguema. Do you recall?

  • Did you make a correction of this statement to the Prosecution?

  • Yes, I made corrections about them.

  • Can the witness be shown page 00100482.

  • Are you talking about the same statement? It would help if for the record you could say the statement of such and such a date, page such and such.

  • Thank you, your Honour. I'm dealing with statement dated 16, 17 and 18 April 2008, page 00100482, at the top of the page under page ERN 000346447:

  • Mr Witness, did you make the following correction to the Prosecution and I read: "Witness never saw Superman as stated. He had only heard about Superman before but never seen or met him." Did you make that correction to the Prosecution?

  • Thank you. Your Honours, that will be all for the witness in re-examination.

  • Mr Witness, I have one question. Just let me find the record. On more than one occasion in answering questions you said - I'm going to try and find a correct quotation. You were being asked about previous statements that you had made to the Office of the Prosecutor and you said, "They told us, they had said that the things that we went through we should not recall them in mind again." You said that more than once. Who is the "they" that you are referring to in that answer?

  • I said because I hadn't any confidence about the issues that they were asking me. I was afraid. The police officer who interviewed me told me that I should not have any fear, I should just say the truth and explain what had gone on with me and it was - they were fighting for things that had happened to us never to recur in our country, so that was why he was asking me to just explain everything that happened to me without fear.

  • Any questions arising, counsel?

  • No, thank you, your Honour.

  • None, your Honour.

  • Mr Witness, that is the end of your evidence. We thank you for coming to court and giving your evidence and we wish you a safe journey back. The blinds will now be closed in order to allow the witness to move in the courtroom. Please sit where you are until the blinds are in position. The blinds will be opened as soon as the witness leaves the Court.

  • Your Honours, the next witness for the Prosecution will be led by my colleague Ms Julia Baly.

  • Thank you, Mr Bangura. What is the pseudonym for the witness?

  • Your Honours, the next witness will be TF1-215.

  • Thank you. Ms Baly can deal with languages, et cetera.

  • Good morning, your Honours.

  • Good morning, Ms Baly. Please proceed.

  • Your Honours, witness TF1-215 will testify in the Krio language. He has been granted protective measures by Trial Chamber I on 5 July 2004 and that is in the same decision that you were referred to yesterday for the previous witness. The protective measures that he has been granted are the use of a pseudonym as well as a screen during his testimony. Your Honour, he was categorised as a category 1 witness, if I could refer to it as an ordinary fact witness.

  • There appears in the order or in the decision I have at page 3 to be three subcategories within category 1.

  • He's not in one of those subcategories. He's just an ordinary category 1 witness, a witness of fact, not a category within that group. So on page 15 it was ordered that he could be known by a pseudonym at all times during the course of proceedings, whether during the hearing or in documents including the transcript of the proceedings and also at that same paragraph, subsection (e), that he testify using a screening device.

  • Ms Baly, one of the drawbacks of this decision that you have referred us to and your colleague referred us to yesterday, I have been unable to ascertain a list of the witnesses to which it relates and whilst I do not contradict what you say it's not so easy to check these things when you do not have such an annex or list.

  • Yes, your Honour, I agree with the comment that your Honour has made and I have received instructions that this witness fell within a category 1 witness and that's what I'm relying upon.

  • Are you saying you yourself don't have a list, but you've just been told so?

  • Your Honour, I personally do not have a list. I have been instructed that the witness was granted - that this particular decision dealt with all of the witnesses.

  • We realise you're trying to make a point, Mr Anyah. Just allow Justice Sebutinde to complete the clarification she's seeking.

  • Ms Baly, are you saying the Prosecution is not able to provide the Court with a list of the witnesses to which this order applies?

  • Would your Honour excuse me while I just seek some clarification of that point.

    I am further instructed that in April of 2004 a list was filed with the Trial Chamber and there were 260 --

  • No, your Honour, 2004, Trial Chamber I. There were 266 witnesses listed in that particular decision or document and the Trial Chamber apparently requested more detail and a categorisation of the witnesses and so --

  • Ms Baly, when you say in the decision, this decision is dated July. Is there another decision in April or was there an application in April?

  • There was both, your Honour. I don't have that to hand, I can obtain it if necessary.

  • What would assist this Trial Chamber is for the Prosecution in this case to provide us with such a list, because I would imagine these were confidential applications to which we are not privy. But we need, in order to do our work, a copy of this list, a comprehensive list, so that we know what we're dealing with. We cannot just take everybody's word for it. We have a duty to be accurate in what we do.

  • I accept that, your Honour.

  • And how soon can we get this list?

  • Just pardon me for a moment.

    Your Honours, it's a very large document. It can be printed and our case manager is attempting to do that now, to print the document.

  • Mr Anyah, you were trying to make a point.

  • Yes. Good morning, Madam President. Good morning, your Honours. I will be examining this witness for the Defence.

    I don't know if an application is being made by the Prosecution of any nature, I don't think so, I think they're just apprising the Court of the current status vis-a-vis the protective measures. I wish to make an application given the practice the Prosecution has adopted in this case which is to make oral applications to rescind or vary these measures. I wish to make an application that these measures be rescinded and the basis is this:

    We were disclosed a DVD about this witness. I believe it's a public video from the Open Society. I have watched the video during the testimony of the prior witness. The video was disclosed to us in the year 2007. As your Honours noted, this decision dates from 2004. I am not in a position to tell the Chamber whether or not this video was made subsequent to the entry of this decision as in vitiating any protective measures that the witness was granted by virtue of him having appeared in the video, subsequent to the decision that is, but I do know we do have a video disclosed to us by the Prosecution in March 2007. It was one of 32 videos disclosed to us in a three day period and I believe it's a public document.

    I intentionally am being vague in order not to inadvertently disclose the date of publication of the video and the entity from which it originates so that I do not in any way interfere with the Chamber's ruling, but counsel opposite can confirm the disclosure of this video to us. It's referred to in the witness's statement and he does say in his statement that, yes, he is the person shown in the video talking about the events we anticipate him testifying about. The only issue for the Chamber I suspect is was this video done after this decision by Trial Chamber I on 5 July 2004.

    So I do make an application on that grounds and I would just add this, your Honours, if it please the Chamber, that in particular respect to this decision, and I listened carefully to the arguments made by counsel opposite, I'm referring to the decision of 5 July 2004, so much time has transpired between now and then. We're speaking of four years and when you consider that the events in question - most of the factual events actually occurred in the late 1990s we're now talking about 10 years hence and a question arises for measures such as voice distortion, which is not relevant to this discussion, and even face distortion and the like, people's appearances change over the course of 10 years, some of these witnesses were relatively young in the late 1990s and appearances have changed, people have moved from one locale to another and the continuing viability of these requests and measures should be revisited.

    There should be some obligation on the part of the Prosecution to revisit these issues and show the necessity for continuing these measures, albeit that Rule 75 does say that the measures remain in force until an application is made and a new order is made by the second Trial Chamber. Thank you.

  • Ms Baly, you've heard the application.

  • I have, your Honour. I have three points to make in response to the application.

    The first point is that this is not a timely application by the Defence. It is quite a different thing for the Prosecution to ask that protective measures be rescinded, but it is a different matter entirely for the Defence to come along at the last moment and ask that protective measures be rescinded, particularly as they have had ample notice of the fact that these protective measures do exist.

    The second point, your Honour, is that there is a video in existence. It is a video that does not disclose in any way that the person shown on the video is to be a witness in proceedings and so it's not relevant in our submission to make an application based on the fact that this particular man has shown himself in a video. It doesn't indicate that he is going to be a witness at all in the video.

    The third issue that I wish to address is the current security situation and the interplay of Rule 75. It has to be shown - the measures continue except if it can be shown that there has been a change. Your Honours as recently as January this year made a finding in a decision of - I'm sorry, 10 January 2008 your Honours made a decision and a finding that you were satisfied that the potential threats to the security of witnesses still exist and that is as at January 2008.

    This proposed witness does hold fears. He holds fears for himself and his family and as your Honours have already decided that the security situation that existed at the time still existed as at January this year. Those are my submissions.

  • Can we get this decision, the CMS number? She's referring to a decision from this Chamber.

  • Mr Anyah, please do not refer to counsel as she. She is the cat's mother.

  • I apologise, Madam President. I apologise, learned counsel.

  • However, please give the reference.

  • I'm quite happy for Mr Anyah to --

  • For the record to state what this decision is. You did mention January, but it would help if you gave the decision's title, please.

  • This is a decision of 10 January 2008 of your Honours and it is decision 14365 to 14366. I'm quite happy to allow my learned friend to see the decision.

  • Thank you, Ms Baly. We will consider the application.

    Ms Baly, the Bench requires this list before we fully consider the application and your reply so we intend to take an early break in order to allow the Prosecution to get these documents together. That will also then allow us to consider and deliberate on the application, so we will adjourn early.

    Before I do so I note that we have also been informed through our senior legal officer that WVS have said that the next two witnesses want the support of an officer to accompany them in court. This has not been the usual method of witnesses during this trial and therefore we seek clarification as to why this is required and what exactly is intended to implement this if agreed.

    We will adjourn now until 12 or whatever time - Ms Baly, you're on your feet.

  • Your Honour, apparently 026 did have a support person in court when she testified some months ago.

  • I think I recall that was a lady witness giving evidence and that was to - if it occurred, and I must admit I didn't see it because my line of vision is not clear there, then I wasn't aware of it, but this is the first time we've been formally asked. I'm just seeking to clarify if you can get that clarification.

    We will therefore adjourn until 12 or if we have not deliberated we will inform the parties. You are going to find out about --

  • I can find out.

  • Thank you. There has not been any application, Ms Baly.

  • No, your Honour. I have not made an application because I did not have those instructions previously. The first I heard of it was when your Honour mentioned it.

  • I see. We will adjourn until 12 unless we don't have the information in which case we will inform counsel.

  • [Break taken at 11.25 a.m.]

  • [Upon resuming at 12.58 p.m.]

  • The Bench has considered the documents that have been supplied to us by the Prosecution in relation to the application. There are points of clarification which we require and my learned colleague Justice Sebutinde will now ask for those points of clarification.

  • Now just before we broke - Ms Baly, you want to say something?

  • You can have a seat because this is quite lengthy. Just before we broke we asked for a list annexed or a list that indicates the witnesses to whom the protective measures in the 5 July 2004 decision related. Now during the break a number of documents were brought to the attention of the Court. The first of course was the decision itself entitled "Decision on Prosecution motion for modification of protective measures for witnesses" dated 5 July 2004.

    In addition, we were given the documents that shed some light on the history of this decision. The first of them was a document entitled "Materials filed pursuant to order to the Prosecution to file disclosure materials and other materials in preparation for the commencement of the trial of 1 April 2004". This document is dated 26 April 2004 and this document contains in its annex a witness list of a total of 266 witnesses apparently.

    Now the other document we were provided with is a document entitled "Order to the Prosecution for renewed motion for protective measures" dated 2 April 2004. The third document that we were provided with was a document entitled "Renewed Prosecution motion for protective measures pursuant to order to the Prosecution for renewed motion for protective measures" dated 2 April 2004. Now this fourth document is dated 4 May 2004 and gives rise to the decision that we are now looking at.

    Now on the face of this decision, reading it in conjunction with the renewed Prosecution motion, it appears to us that the sum total of the witness list is reduced into annexes A and B of the so-called renewed Prosecution motion. Annex A being the annex containing the names of witnesses of fact. These witnesses are in three categories: category A being victims of sexual violence; category B being children; and category C being insider witnesses. Annex B has not been provided to the Bench, but I imagine that is the annex dealing with expert witnesses.

    Now the decision in question was made in light of these two annexes, annex A and annex B, and it appears on the face of it that the orders made by the Court, Trial Chamber I, on 5 July 2004 were made in respect of the witnesses contained in annex A and annex B that I have recited above.

    Now on the face of it we fail to find witness TFI-215, which is the witness in question. Now these are the documents that we have been provided by the Prosecution and we would like, before we finally rule on this matter, to say to the Prosecution can you show cause why we should not ask this witness to testify publicly?

  • Your Honour, your reading of the materials and in particular the renewed Prosecution motion for protective measures dated 4 May 2004 and the judgment that followed the motion of the 5 July 2004 is, with respect, incorrect. In the renewed motion the Prosecution pointed - at paragraph 20 there was an application for all witnesses of fact or lay witnesses and the Prosecution requested various protective measures including that witnesses of fact, that is all witnesses, testify in Court using pseudonyms and from behind a screen that will shield them from the public view. Those two are the measures that are relevant for what is being argued today. Again --

  • Witnesses of fact being what? Being who exactly?

  • Being all witnesses.

  • Where? Defined where?

  • Defined by the witness list that was filed as witnesses of fact and then --

  • Where are you referring? Just point us to that part. Where in this renewed motion do you define your group 1 witnesses? That is really where this matter turns.

  • Your Honour, paragraph 2 of the motion which states this:

    "In compliance with the order to the Prosecution to file disclosure materials and other materials in preparation for the commencement of trial dated 1 April 2004, on 26 April the Prosecution filed a Prosecution witness list of 266 witnesses. This motion provides an overview of the reasons for the protective measures sought for those witnesses."

    That is for all 266 witnesses. The Prosecution then went on to seek for all witnesses of fact in paragraph 20 to which I have already referred, all lay witnesses, the screen and pseudonym together with some other protective measures that are not relevant for today and then later --

  • Ms Baly, just before you go off that point, what does paragraph 4 of the motion mean?

  • They are the pseudonyms of - they are the special categories that were then annexed to the motion; categories A, B and C. A being victims of sexual violence.

  • Well, I can read that, but it then gives a list of pseudonyms which one would presume are the subject matter of this motion.

  • The subject matter refers to all of the witnesses. All of the witnesses, the 266 witnesses, the pseudonyms of which were filed previously, and then the motion goes on to divide the group and to categorise some special groups, but all witnesses - it was sought for all witnesses that certain protective measures be granted.

  • Who are witnesses of fact, if I may ask it that way? If you are looking at the list filed on 26 April 2004, which of these is a witness of fact? In the 266 witnesses, who are witnesses of fact?

  • Your Honour, they are all witnesses of fact, but some of them are special witnesses to which the categories apply and that's made clear by a reading of paragraph 2 and 3 of the motion where the Prosecution said at paragraph 3:

    "The Prosecution notes that in its order the Trial Chamber has found that reference to specific categories of witnesses may facilitate this task. Accordingly the Prosecution has divided the 266 witnesses into two groups: (i) Witnesses of fact; (ii) Experts, those who have waived their right to protection."

  • Where can we find these two groups? Where in the documents do we find these two groups?

  • Your Honour, I can't answer that question.

  • Then I suggest that annex A contains group 1 and annex B contains group 2. Logically that's what it seems to me. Annex A contains group 1, namely witnesses of fact, and annex B is expert witnesses. There isn't a third category, surely?

  • Would your Honour just allow me to confer on that point? Well, your Honour, the Prosecution's position is that annexure A relates to the three categories of group 1 witnesses, that is all of the witnesses that were the special categories.

  • In other words, group 1, witnesses of fact.

  • Yes, some of them, but not all of them, because the three subgroups or subcategories were the ones who required additional protective measures.

  • I am asking you in the context of your renewed motion where is the rest of group 1?

  • The rest of group 1 are all of the fact or lay witnesses to which the Prosecution refers at paragraph 20 and for which the Prosecution refers back to the list that was already filed, the 266 witnesses, and paragraph 20 seeks the protective measures and again at paragraph 35 in the order sought where it is:

    "In order to provide protection for witnesses called by the Prosecution during the trial, the Prosecution requests the Trial Chamber to issue the following orders. All witnesses shall be referred to by pseudonyms at all times during the course of their testimony."

  • Yes, but that has to be read in context, Ms Baly, and right now we are struggling to understand what these categorisations comprise. What is group 1 comprised of? For me I am going by the reading in the motion, paragraph 3, the renewed motion, and the categories are there plainly. Category 1 is stated plainly and I do not see the words, "And the balance of the witnesses in the original witness list". I don't see those words there. I clearly see the following:

    "The Prosecution has divided the 266 witnesses into two groups. Group 1, witnesses of fact. Group 2, experts who have waived their right to protection."

    And then within group 1 the witnesses are further subdivided into three categories A, B and C, that I referred to above earlier and I read that in connection with paragraph 4 which says:

    "Annexed to this motion and marked as annex A are the pseudonyms of group 1 witnesses in their three divided categories and group 2 witnesses are listed in annex B."

    Now when I read or when I count the number of witnesses in both A and B they do not amount to 266 and the question then begs is what happened to the balance? But I see my answer in paragraph 5 which says: "Therefore the actual number of witnesses who will be subject to the protective measures if granted will be less than 266." To me that then accounts for the balance of everyone who I do not see in annex A or B.

  • Well, with respect, your Honour, that's not the way we read this motion. We read the motion as the witnesses, all 266, divided into two groups, group 1 being witnesses of fact which includes the current witness, group 1 further divided into A, B and C, the special categories of witnesses, and group 1 witnesses are all - for all witnesses of fact or lay witnesses. The Prosecution then went on to seek for all those witnesses, all of those group 1 witnesses, the measures of a pseudonym and a screen which were granted. Now this witness, your Honour, did testify with a pseudonym in the previous trial.

  • I really am not concerned, Ms Baly, with what this witness did or didn't do in another Court or by what means. We have the documents in front of us and we are trying to make a decision based on the reading of the documents before us.

  • Ms Baly, you would help my understanding if you could explain to me what is the purpose of annex A that specifies certain witnesses if in fact you are not really dealing with just those witnesses, but with 266 witnesses? Why put that annex in at all?

  • Because that was for the special categories of witnesses, extra measures that were sought. For example, closed session and other measures that were sought for those particular witnesses and some were asking to be testifying in closed session, some were seeking to testify by video link, for those particular witnesses.

  • And of course we mustn't lose sight the order of the Court to the Prosecution for renewed motion was precisely intended to ask the Prosecution to justify their reasons. Instead of lumping witnesses together in a list, a common list, to separate them into categories and justify the measures sought for each category. That would seem to me to make logical sense. There should have been a fourth or a third annex if you like of witnesses that don't fall into either categories A or B or C. There should have been a list annexed. There isn't.

  • No, there isn't.

  • And so I find it difficult to start now assuming or imagining that from the old list that was thrown out by the Court and the Prosecution asked to file a new renewed list I must now go back to that list, the old list, and somehow do the mathematics and glean out the remainder of those witnesses and read them into this protective measures decision.

  • Well, with respect, your Honour, it's not a matter of reading them in. The Court did grant the motion and granted the motion in accordance with the order sought by the Prosecution.

  • That is precisely the crux of this matter. It all turns on the definition of these groups. The order is not in the air. The order is made in relation to the renewed motion and as to the renewed motion, along with these annexes, these measures in our view so far appear to have been directed at the witnesses in the annex, in the annexes to the motion, as they stood on 5 July 2004. But I want to give an opportunity to the Defence.

  • Ms Baly, the motion at paragraph 2 refers to an order for the Prosecution to file a preparation for commencement of trial dated 1 April on 26 April. Now is that the order of 2 April?

  • Yes.

  • It says here dated 1 April, because I have an order dated 2 April.

  • It was ordered - that is the document of 2 April.

  • Because it has got a different title. Because that appears to be another order and the paragraph refers to protective measures for those witnesses. Who are those witnesses?

  • The witnesses in the list to be filed which was subsequently filed on 26 April 2004, the list of witnesses.

  • But is the 26 April 2004 not a disclosure to the Defence of their witnesses?

  • It is a list of witnesses filed pursuant to the order that the Court made on 2 April to file their witness list.

  • Ms Baly, I'm still trying to get my hands around this problem, but that witness list remains what it is labelled, a witness list. You are not seeking protective measures for 266 witnesses and you indicate that in paragraph 5 of your motion. It could be less than 266 witnesses. From my understanding this upcoming witness who will be coming into Court very soon is classified as a witness of fact?

  • Yes.

  • Now you say in paragraph 3 of your motion that witnesses of fact are subdivided into three other categories; that is victims of sexual assault, child witnesses and insider witnesses. Then in paragraph 4 you say that the pseudonyms of group 1 witnesses are listed in annex B. Now the group 1 witnesses are the witnesses that fall into those three categories. You don't say there is a fourth category of witnesses of fact. There are only three categories and the witnesses that fall into those three categories you say are contained in annex A. But what you're saying to the Court is, yes, they are, but there are more witnesses that we didn't mention that fall as witnesses of fact but outside those three categories. Is that what you're saying?

  • No, your Honour. What we say is what the motion says. Within group 1 there are three - a further divider, but that's not exclusive.

  • Well, that's exactly what I just put to you. You are saying that there are three categories plus some other category that falls outside of those three categories.

  • What we are saying is that there are some in group 1 that don't fall into A, B and C. Some in group 1 which were ordinary fact witnesses, not further divided. Within group 1 the witnesses are further divided. We say that doesn't mean there are no other witnesses apart from A, B and C. There are a number of witnesses in group 1, some of which fall into A, B or C, but some of which do not. That's the way we read that motion.

  • Well, you say in paragraph 4 - if I wanted to know who were the witnesses in group 1 there it is in paragraph 4. You say the pseudonyms of group 1 witnesses divided into the three categories mentioned above are in annex A, but now you are saying to me they're not all in annex A, there are some other witnesses that aren't in annex A, but they are still members of group 1.

  • Yes, that is what we are saying. That is the way the Prosecution reads the motion and the order.

  • If I could just follow on from my last question. I note that in the recital of the decision of 5 July there is no reference to this document dated 26 April 2004. I accept that it's referred to in the motion, paragraph 2, but it is not recited as a document that the Court took into account in the recital of their decision. So how do I know that this is the document that is being referred to?

  • On page 3 of the order it says the Prosecution divides its witnesses into two groups based on the witness list filed on 26 April 2004.

  • What does "based" mean? It simply means they come out of that disclosed list, because as you know you cannot have additional witnesses without leave of Court. All it is saying is that out of that list we have not introduced any new witnesses that we have now included in our categories, they all emanate from that one list that the Defence already has. That's what "based" means.

  • But the duty still remained on the Prosecution to actually identify who these witnesses were that they were seeking measures for and to justify the measures sought for each category.

    So this other category, Ms Baly, that you are mentioning, I have been scanning through the motion to even see where you justify the reasons that you seek protective measures for and there isn't a paragraph. All the justifications relate to each one or other of those specific categories outlined, A, B or C or indeed annex B. There isn't a single submission in the motion that deals with these other witnesses of fact that you now allege were intended to be covered.

  • Your Honour, can I take you to page 3 of the renewed motion, paragraph 15, which reads:

    "While consideration specific to each category of witness are presented below, the Prosecution maintains that conditions in Sierra Leone create difficulties for all witnesses and victims", and then they go on.

    They are referring to all witnesses as well as those in the categories, all witnesses, And then specific to each category additional issues.

  • Mr Anyah, I wanted to invite your reply. I am a little concerned about the time. I know the accused for example and others are limited.

  • You have got about 100 seconds, Mr Anyah. Can you deal up your argument in that time, or --

  • Well, I do have obviously some arguments to make and some observations as well. I do see the issue the Court is grappling with and I think in the documents there is perhaps some clarity on some of these issues and I would ask to address the matter when we come back after the break, but before the break I would point the Chamber and counsel opposite to footnote 6 of the decision of 5 July 2004. I think that provides some clarity.

    The Prosecution's motion was not properly drafted, I am referring to the renewed motion in question, and this is the source of the whole dilemma. I think Justice Sebutinde is absolutely right in saying that you cannot read the Trial Chamber's order beyond what was requested in the motion. What was requested in the motion and as defined as category 1 witnesses is limited to these three expressly stated categories and that's the problem with which the Prosecution is faced.

    If I could take the Chamber to the first order in question, because this is what set the whole thing in motion. Trial Chamber I had a status conference where the Prosecution orally suggested that certain witnesses would need additional protections. Trial Chamber I then issues a decision saying, well, with respect to this suggestion you have raised can you put it in writing? That is essentially what this order of 2 April 2004 means.

    There is a paragraph there where the Chamber says:

    "Recalling further the submissions from the Prosecution that certain categories of witnesses including victim witnesses or insider witnesses may require greater levels or forms of protection than other categories of witnesses", and then it goes on in the final paragraph where it issues its order: "Directing the Prosecution to file by 3 May 2004 for each witness which appears in its list what specific protective measures it is seeking."

    What does the Prosecution do? It files its witness list, 266 witnesses, and then it files this renewed motion trying to comply with the Trial Chamber's order and it essentially leaves vague what happens to another category of witnesses beyond the 87 that fall in these three categories. The Chamber notes the fact in its decision, counsel for Morris Kallon points it out, it's in the footnote, that there is confusion in the Prosecution's submission and then we get to the final portion of the Chamber's decision where it says - and this is the decision of 5 July 2004 and the Chamber says, "Disposition" - it's on page 15. It says, "hereby grants the motion and orders for all witnesses in group 1 witnesses of fact." The group 1 there is referring to the group 1 as defined in the Prosecution's renewed motion. It cannot be stretched beyond that. Therefore I propose to you - indeed I submit to the Chamber that witness 215 who is up next is not covered by this order.

  • Thank you, Mr Anyah. That is your reply?

  • Yes.

  • Yes, very well. We will take the lunchtime adjournment. We will obviously have to consider these further submissions and I am not going to say 2.30. I will say when parties are notified.

  • And, Mr Anyah, I was being very lighthearted when I said you only had 100 seconds. I hope you didn't limit your address to finishing before lunch, because I didn't mean that.

  • When I started talking I took the liberty to extend beyond 100 seconds after reading the demeanour of the Bench. Thank you, your Honours.

  • Madam President, in terms of our returning to Court will it be acceptable to the Court that we assemble within the precincts rather than sitting here as we did do because that would actually enable those of us on the Defence to consult with our client if need be.

  • That was my attention in saying that. I don't expect you to be sitting here at 2.30.

  • We will give at least five to ten minutes notice of the intention to resume Court when we reach a decision.

  • Thank you. Please adjourn Court to a time to be fixed.

  • [Lunch break taken at 1.32 p.m.]

  • [Upon resuming at 3.28 p.m.]

  • This is a ruling on an application. The Defence have opposed and applied to rescind the purported protective measures for witness TF1-215. The Prosecution submit that the witness is protected by an order of Trial Chamber I of 5 July 2004, entitled "Decision on Prosecution motion for modification of protective measures for witnesses", which the Prosecution submits applies to 266 witnesses of fact including witness TF1-215.

    The decision of 5 July 2004 ruled on a 5 May motion filed by the Prosecution and entitled "Renewed Prosecution motion for protective measures pursuant to order to the Prosecution for renewed motion for protective measures", dated 2 April 2004. It was filed pursuant to an order of the Trial Chamber on 2 April 2004; the order being entitled "Order to the Prosecution for renewed motion for protective measures".

    After careful consideration of that decision and the submissions of counsel, we find nothing in the decision which would entitle witness TF1-215 to any protective measures. In our view, the decision relates solely to those witnesses listed in annexes A and B of the renewed Prosecution motion for protective measures. Witness TF1-215 is not among those witnesses listed in the annexes. Accordingly, the witness will testify in open court and the Defence application to rescind the protective measures of this witness is now moot.

    Ms Baly?

  • Your Honour, the Prosecution does not intend to call witness TF1-215. The next witness will be witness TF1-028, to be led by my colleague Ms Alagendra.

  • Thank you, Ms Baly. What language will the witness speak?

  • Your Honours, the witness will testify in Krio. Also, your Honour, this witness is again subject to protective measures granted by Trial Chamber I and it's the same decision that your Honours were looking at today. This witness, your Honour, is a group 1, category A witness, and the protective measures afforded to this witness previously were for her to testify using a pseudonym, behind a screen and with voice distortion, your Honour.

  • Thank you, Ms Alagendra. In that case - sorry, I'm just having a look at category A. Yes, I see it in front of me.

  • Your Honours, if I can assist you further, this particular witness is listed as number 16 in the annexure A, under the category A, your Honour.

  • Thank you, Ms Alagendra. It will be necessary to have the screens completely closed in order to allow the witness to be brought into court, so the court will appear to be closed for a few moments while the witness is moving in the courtroom.

  • May it please the Court, your Honour it would require 30 minutes to enable the technical people to set up the voice distortion before the witness can start.

  • If it requires 30 minutes there seems to be little to be gained by us all sitting here looking at each other. I'm sure we can all do something a little more productive in 30 minutes and so we will adjourn for that time and please notify us as soon as the distortion is in place.

  • [Break taken at 3.35 p.m.]

  • [Upon resuming at 4.12 p.m.]

  • Ms Alagendra, I see there is no witness in the box and I understand that the voice distortion is in place. Could you let us know what's happening, please?

  • Your Honours, I'm not sure what's happening at all. I did not go ahead to check about the witness being brought in myself because I thought there were people responsible for that.

  • I see. Is one of our CMS Officers aware of the situation?

  • Good afternoon, your Honour. The witness is experiencing some difficulties and would like some time to be composed before she can come into court. We've been informed by the Witness and Victim Support Section that she's a little upset and needs to calm down before she can come to testify.

  • Have you been given an estimate of how long this will take?

  • Yes, your Honour, approximately - well, it was five minutes then. It should be about three minutes more.

  • Ms Alagendra, if we continue to have a problem with the witness being brought into court in view of her state is there a back-up witness available?

  • Your Honours, it's my understanding that there will be a back-up witness for tomorrow, but not for today, your Honour.

  • I see. Perhaps we can ask if the witness's present condition can be checked.

  • May it please the Court, the witness is now being brought in and she will be supported by a support staff from the Witness and Victims Section. Thank you.

  • In that case, we will have the shutters closed so that she is able to walk around the court. I'm not sure if there are any members of the public present, but for purposes of record I note we are closing the curtains to allow a protected witness to come within the well of the court.

    Mr Anyah?

  • Yes, Madam President. May it please the Court, I will be examining this witness on behalf of the Defence, but as a matter of procedure I don't know if the Prosecution went ahead and made an application for the support staff of the Witnesses and Victims Section to sit next to the witness? Now, I recall this being --

  • Just pause, Mr Anyah, because I haven't heard the words "sit next to the witness" being mentioned and there is a difference between them sitting somewhere in the back of the court and beside the witness and before you proceed I will clarify exactly what is meant.

  • Yes, Madam President.

  • Your Honours, I thought you were going to clarify it with me.

  • Yes, I'm looking to you.

  • Yes. Your Honours, unfortunately I'm not able to comment on the issue of the support staff because it was not the Prosecution that brought it to the attention of the Court. So, I'm in the Court's hands on this issue.

  • Is Court Management aware of what exactly has been asked?

  • Your Honours, my recollection of the discussion surrounding this issue that we had on 28 November during the trial management meeting was that it was agreed that the Witness and Victims Support Section staff members would not sit in the courtroom all the time as is the practice in Freetown, but where a witness is fragile or vulnerable and requires support a member of the Witness and Victims Support Section would sit at the Registry Bench, which is on the left-hand side of the Bench, and support the victim. Thank you. And the parties - your Honour, the Defence and the Prosecution all agreed to this procedure and I haven't received anything contrary to that. Thank you.

  • Mr Anyah, you have heard the clarification. The victims support officer will not be sitting next to the witness.

  • And I was just indicating, at least amongst the Defence Bar, that the Chamber was right in noting no application had been made and to the extent there isn't one then there is no issue before the Court.

  • We'll have the side blinds open, please.

    Good afternoon, Madam Witness. I hope you're feeling better now.

  • I would like to reassure you that your face and your body will not be seen by anyone outside the Court and your voice will not be heard by anyone outside the Court, so I hope that makes you feel a little easier. I will now ask our Court Officer to read the oath to you and I would ask you to take the oath. Please proceed.