The proceedings of the Charles Taylor trial currently taking place before trial Chamber II of the Special Court for Sierra Leone (SCSL), sitting in The Hague has been marred by frequent allegations of proving improper incentives for witnesses who testify for the Prosecution. If such allegations are true, it may weigh on the Prosecution’s case and may also undermine the public’s confidence and respect for the general legal process, in effect flouting the primary purpose for creating international tribunals. Allegations of improper witness incentives must therefore be subjected to close examination by judges of both Trial and Appeals Chambers in international tribunals. Taylor’s Defence counsel has alleged during cross-examination of prosecution witnesses that some of the prosecution’s witnesses only agreed to testify after being persuaded by the prosecution with either exorbitant amounts of money or other facilities. This piece seeks to evaluate the defence’s allegation by examining evidence elicited from prosecution witnesses during cross examination with regards to payment made by the Office of the prosecutor (OTP) during its investigations and gives analyses of such alleged impropriety.

General Practice

The general practice of the SCSL with regards identification and selection of witnesses is that investigators of both prosecution and defence are allowed to investigate and select potential witnesses. In the case of the prosecution, Rule 39(ii) of The Rules of Procedure and Evidence (The Rules) of the SCSL provides that the Prosecutor if so requires may take measures to provide assistance and support for potential witnesses. To this end, the OTP established a unit known as the Witness Management Unit (WMU) to assist with any support needed by investigators during their search for witnesses. Once a potential witness has been identified, responsibility for him/her is transferred to the Witness and Victims Support Unit (VWSU) – a branch created by the Registry to administer support to witnesses who wait to testify. Up until the stated transfer of responsibility, the WMU administers every arrangement regarding the safety and support of potential witnesses and their sources. They in turn produce a receipt of every payment/or reimbursement made to every potential witness. The Defence in the trial of Charles Taylor has alleged during cross-examination that the WMU and OTP investigators have been making extra payments or reimbursements to potential witnesses during the course of their investigations.      

Defence Strategy

The claim of impropriety by both prosecution and defence is not a new phenomenon. However, it is incumbent on both parties in the trial of Charles Taylor to acknowledge the need to set a high standard of justice, one of the primary objectives of the court. The Defence in the Charles Taylor case has sought to discredit the credibility of prosecution witnesses by questioning the relevance of certain payments made by the OTP and implying that such payments should be perceived as improper inducements. While these attempts to undermine prosecution witnesses, it also call into question the integrity of the proceedings as in the long run they may actually elevate the credibility of the trial by increasing its transparency.

One of the most senior personnel to testify in the Taylor Taylor. He testified from 14^th to 21^st May 2008. During cross-examination, lead defence counsel Courtney Griffiths noted that Blah was given $ 450, which is approximately 27,000 Liberian dollars to collect some documents from his farm in the provinces. Blah stated that the documents were only personal notes which he had to refer to in answering questions from OTP investigators. While the Rule grants the prosecutor the power to use all means necessary to get and protect information from potential witnesses, such means must be reasonable in order to adhere to the standards of fair trials. Furthermore, Blah noted that he was given $5,000 by the OTP to settle his medical expenses related to a cardiac condition. While the payment of witness medical expenses may be reasonable under certain circumstances, it nevertheless raises fundamental questions about the fairness of a trial, and thus should only be done upon good course. In the case of Blah, he testified that he can take care of his medical bills and no mention was made as to why the Prosecution decided to pay for a bill that a potential witness can pay. trial was Moses Blah, former vice president to

The Defence also asserted their allegation of improper witness inducements during the cross-examination of witness TF1-375. Co-defence counsel, Mr. Terry Munyard, noted that the witness was given money on different occasions as transport reimbursements for meeting with OTP investigators, even though the witness was staying in Monrovia, where the investigators resided at that time. Munyard further noted that the witness was given money on other occasions without attending any interview with the investigators. He further maintained that the prosecution considered some payments as “payment for lost wages,” and noted that on some occasions, witnesses only spent small amount of time with investigators yet were still reimbursed for lost wages.

The Defence has also maintained that the OTP is engaged in providing inducement in the form of relocating their witnesses. While the Defence has not questioned the propriety of relocating Prosecution witnesses, they are demanding that this should be done by the WVSU rather than the Prosecution. For instance, the defence questions payments made by OTP to Moses Blah for “family support”.

Prosecution’s perspective

The Prosecution has vehemently denied providing any form of improper incentive for their witnesses; asserting rather that they are taking measures that they deem necessary to obtain information that will assist them in their investigation. The OTP has maintained that they reimburse potential witnesses for transportation and lost wages during interviews with OTP investigators. They also noted that in extreme circumstances, they can provide medical allowances to potential witnesses in a bid to protect their evidence. The Prosecution has maintained that they are obliged to reimburse their potential witnesses upon good course. They have noted that OTP investigators usually enquire about the earnings of their potential witnesses as most of their witnesses have maintained that they are the "bread winners" for their families. To this end the Prosecution is providing what it perceived as reasonable wages a potential witness stand to loose during the course of their interviews.

Furthermore, the Prosecution has also maintained that some of their potential witnesses stand the risk of being intimidated once they have agreed to talk with them. The Prosecution has noted that security measures have to be put in place for such potential witnesses as their safety should be guaranteed. In minimizing the risk or fear of intimidation, the OTP can relocate such people should any threat of intimidation arise.

A Case Before the Special Court

On the 22^nd June 2007, in Trial Chamber I of the SCSL, Justices Bankole Thompson, Pierre Boutet, and Benjamin Mutanga Itoe, unanimously ruled to exclude statements obtained by OTP investigators from the First accused Issa Hassan Sesay in the trial for alleged leaders of the former Revolutionary United Front (RUF). The Chamber found that the statements obtained from Sesay by OTP investigators were not voluntary, in that they were obtained by “fear of prejudice and hope of advantage held out in persons in authority”. The Chamber further ruled that the statements cannot be used for the “sole purpose of cross-examining the first accused” because they were not admissible under Rule 92, which provides that evidence that would bring the administration of justice into disrepute cannot be admitted. It appears that, the trial Chamber excluded the evidence because the accused only decided to grant interviews to OTP investigators in order to get something from them. Likewise, in the case of Charles Taylor, evidence from Prosecution witnesses should be obtained voluntarily without any hope of advantage. The Defence has constantly pursued this line of questioning during cross-examination, noting that high profile Prosecution witnesses agreed to testify for the Prosecution because of the fear of being indicted by the Special Court. While this is just a claim, the Trial Chamber should be mindful of the individual circumstances of some high profile witnesses. This does not suggests that high profile witnesses do not testify voluntarily but wherein such involuntary evidence as ruled by Trial Chamber I is admitted due to impropriety by investigators, it would contravene the Court’s sense of justice.

Conclusion

Both pre-trial and trial proceedings can be animated, but these should be done with minimal misconduct within the rules of the Court. The general provision of Rules of Procedure and Evidence as prescribed in Rule 89 states that the Chamber may admit any relevance evidence, while the Prosecution in the trial of the former president will argue based on this provision, sub rule (B) of same provides that the Chamber can determine admissibility and weight of evidence in relation to best practice. While reimbursing transportation and lost wages might not amount to incentive/or inducement, providing undue reimbursement might send a message to other potential witnesses that the OTP is a ground for profit making. Even if such witnesses may testify voluntarily, the fact that they are doing it with the hope of having their expenses reimbursed (legitimate or otherwise) will discredit the entire judicial process.