1 May 2018

Central African Republic: Why Bemba and His Lawyers Will Receive New Sentences for Witness Tampering

analysis

Congolese politician Jean-Pierre Bemba and his two former lawyers with whom he was convicted at the International Criminal Court (ICC) will receive new sentences for tampering with witnesses. The two other individuals, who were also convicted in the same trial, had their sentences confirmed by appeals judges.

According to the Appeals Chamber, it became necessary to issue new sentences for Bemba and his former lawyers, Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo, once it was established that the trial chamber committed errors in the criteria used to determine their initial sentences.

In March 2017, judges handed down sentences to the trio, who had been convicted in October 2016 for corruptly influencing 14 witnesses and presenting their false evidence before the court. Bemba was handed a one-year prison term and a fine of €300,000; Kilolo received a two-and-a-half year suspended sentence plus a fine of €30,000; while Mangenda was sentenced to 11 months in jail, suspended for two years.

Trial Chamber VII convicted the five individuals of offenses against the administration of justice, which is provided for under Article 70 of the Rome Statute. The provision also states that in the event of a conviction, judges may impose a term of imprisonment not exceeding five years, a fine, or both. All five guilty verdicts were upheld on appeal. The Appeals Chamber confirmed the sentences for Fidèle Babala Wandu and Narcisse Arido (six months and 11 months, respectively), which at sentencing last year the trial chamber considered served due to the time they had spent in pre-trial detention.

Appeals judges cited Article 83(2)(a) and Article 83(2)(b) of the Rome Statute, which states that should the appeals chamber find factual, legal, or procedural errors materially affecting the sentence, or unfairness affecting its reliability, it may reverse or amend the sentence, or order a new trial before a different trial chamber. Furthermore, they cited Article 83(3), which stipulates that if the Appeals Chamber finds the sentence to be disproportionate to the crime, it may change the sentence.

Appeals judges determined that the trial chamber committed a series of errors with respect to the sentences pronounced against Bemba, Mangenda, and Kilolo. They found that trial judges determined the gravity of the offenses using "an irrelevant consideration" and "improperly considered that the form of responsibility for the convictions under article 70(1)(a) of the Statute warranted per se a reduction of the corresponding sentences."

They stated that trial judges erred when, in assessing the gravity of the offenses, they gave "some weight" to the consideration that the false testimony of witnesses did not relate to merits of the main case against Bemba. The Appeal Chamber said the court's truth-seeking functions are not necessarily less damaged by false testimony on matters informing the credibility of witnesses than they are by false testimony on matters concerning the merits of a case.

Secondly, appeals judges agreed with the prosecution that the trial chamber erred in giving a lower sentence for convictions against Bemba and Kilolo for inducing or soliciting the commission of offenses, compared to offenses they committed as co-perpetrators, exclusively on the basis of the different mode of liability.

The Appeals Chamber recognized that the difference between committing a crime and contributing to the crime of others would normally reflect itself in a different degree of participation or intent. However, they added, this did not mean that the principal perpetrator of a crime or offense necessarily deserved a higher sentence than the accessory to that crime or offense.

Thirdly, the trial chamber was also found to have acted beyond its legal powers by suspending the remaining terms of imprisonment imposed on Mangenda and Kilolo. Appeals judges considered that the sentences pronounced against the three individuals were materially affected by each of these errors, which necessitated the reversal of the sentences.

In its submissions, the prosecution argued that the Appeals Chamber could impose new sentences and suggested that the convicted individuals should each be sentenced to five years of imprisonment.

However, Mangenda suggested that, if the Appeals Chamber found any error in the sentencing decision, it should remand the issue to the original trial chamber to issue a new sentence. Mangenda's lawyers considered that this would be an efficient and expeditious approach. Meanwhile, Bemba's defense suggested that, if appeals judges agreed with the prosecution that the sentences were too lenient, they could clarify the appropriate range of sentence, without actually imposing it in the present case.

Noting arguments by Mangenda and Bemba that, the Appeals Chamber considered that, taking into account the nature of the offenses and the errors identified, remanding the matter to the chamber that originally sentenced them was the most appropriate remedy.

Last month, Judge Bertram Schmitt, the Single Judge of Trial Chamber VII, directed parties to the case to file fresh submissions on the appropriate sentences. He also directed the court's Registry to file updated reports on the solvency of each of the convicted persons. These reports, which are accessible to the prosecution and corresponding person concerned, have been filed confidentially.

Judge Schmitt noted that, whereas Trial Chamber VII considers that the hearing held prior to the sentencing decision to be sufficient, parties to the trial may make submissions to justify any need for a further hearing.

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