In their response to the Prosecution, the Issa Sesay defence team has said that “the Prosecution fails to appreciate the public concerns which have arisen from the payments of large sums of money to insiders and ex-combatants.”
The Sesay defence team said that in the Prosecution’s response they claimed that they have “an unfettered discretion” to take all measures deemed necessary for the purpose of the investigation.
To this the defence argued that the prosecution exposes the lack of principle at the heart of the payments to witnesses.
They said that the “notion that a Prosecution has an unfettered discretion to channel huge sums of money to witnesses is devoid of merit and ultra vires the Prosecution’s obligations under the Statute, the Rules, and the Practice Direction.”
They argued that at a minimum the Prosecution has a duty, in accordance with Article 17, which is to ensure that the exercise of any discretion is guided by the right of the Accused inter alia to a fair trial and the right to “obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her and the Prosecution’s disregard for this duty lies at the heart of the Motion.”
The prosecution had submitted that they are guided by Article 39 (ii) which they interpret – but this the defence argues is limited by Article 16 (4) which they said was willfully ignored by the prosecution and that the Rules and Procedures are subordinate to the Statute and therefore must be interpreted so that it gives effect on the rights and duties conferred upon the prosecution.
And these rights and duties are circumscribed by the statutory duties of the Registry which shall set up a Victims and Witnesses Unit and this unit shall provide in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. They further submitted that the Prosecutor’s claim that do bring forth “witnesses who are willing to relive their ordeals in testimony before the Special Court is a challenging responsibility, which would be impossible to fulfill if witnesses had to suffer financially because of their decision to testify” must be approached with a degree of circumspection.
They argued “this claim would not be so offensive if the Prosecution were paying victims to ensure that they were able to testify but it is clear that all excessive, unwarranted, or impermissible payments relate to ex-combatants or insider witnesses.”
The Prosecution, the defence added is not assisting victims or those who are coming to relive their ordeals as this is wholly in the hands of the WVS.
Arguing further that they [Defence] had no budget and did not require one to ‘investigate’ they noted that “The Defence was not attempting to purchase testimony if a Defence witness required money for ‘wasted time’, school fees, meals, etc., they would refer it to WVS who could make an assessment of the necessity of the payment. Naturally if the Defence witness requested money to repair a generator, money for school uniforms or as a ‘gesture’ of good will, the Sesay Defence and the WVS would refuse to entertain the request.”
“Right-thinking members of the Sierra Leone public would conclude that an honest prosecutor would do the same” they said.
The defence therefore urged the Trial Chamber to call on the Witness Management Unit to provide this explanation and demonstrate the propriety of its payments. This evidence, along with the other evidence requested, will provide the judges with information which will assist the truth-finding process, absent this explanation, any convictions which flow from the RUF trial will be indelibly stained by the public perception that the Prosecution undermined the rule of law by purchasing testimony from disreputable insiders and ex-combatants.”