The trial groups three suspects linked to media that incited Hutus to kill Tutsis during the 1994 genocide in Rwanda. They are: Ferdinand Nahimana, founder member and alleged former director of Radio-Télévision Libre des Mille Collines (RTLM); Jean-Bosco-Barayagwiza, former politician and RTLM board member; and Ngeze, who was editor of the newspaper Kangura. Floyd argued that protected witness ABH should not be allowed to testify because prosecution had not only changed their minds over what evidence he would give, but had failed to provide defence with a new witness statement in sufficient time. Prosecutors Steven Rapp and Simone Monasebian, also of the US, told the court that ABH would testify againstNgeze only, on the basis of a new statement made in August this year. Two previous statements by the witness in 1996 and 2000 brought accusations against RTLM and its journalists, but did not mention Ngeze. Prosecutors say the witness will now testify on Ngeze's "activities regarding list-making of Tutsis and his involvement with militias in Gisenyi (northwest Rwanda) and Nyamirambo (Kigali)". The court asked why prosecution had only taken a new witness statement in August when they had told the court in February of their intention to call ABH on the basis of "new information". Monasebian told the court this was because the witness had refused to board a 'plane to Arusha in February, citing security reasons (he had originally been due totestify then), that prosecution had had difficulties contacting him afterwards and that the witness was at one point uncooperative because he was annoyed at the changes in scheduling. Dissenting opinionAfter deliberation, the court ruled against the defence motion, by a majority of two to one. "By a majority, we will allow witness ABH to be heard as a witness," said presiding judge Navanethem Pillay of South Africa, "but only in respect of his statement of 3rd August, 2001. "Judge Pillay said the court accepted prosecution's explanations as to why the new witness statement was only taken, and provided to defence, in August. It found that defence had had notice as early as February 2001 of the nature of ABH's testimony, had not been caught by surprise and had not "suffered prejudice thereby". The majority decision was by Judge Pillay and Judge Erik Mose of Norway. However, Judge Gunawardana of Sri Lanka said he regretted he could not back his colleagues' decision. He said the August statement "leads us in adifferent direction" and that this should not be encouraged because the defence had a right to know in advance the nature of the witness's testimony. Also, argued Judge Gunawardana, the witness was to "abandon evidence as in the two previous statements", concentrating only on the last one. He said this was an "unsatisfactory situation" and "prejudicial to the defence". "Further," continued the judge, "the statement was recorded after the witness was recorded as a witness", whereas ABH had been admitted on thebasis of his two previous statements. This was also prejudicial to the defence, he said. Under the circumstances, Judge Gunawardana said, he would not call the witness. Conflict of interest and protection issuesFloyd then told the court that its decision had given him a serious problem. He said there were contradictions between the August statement and the two previous ones. "In cross-questioning, I can't stay away from the earlier statements," he told the court. "Since I can't stay away, Mr. Biju Duval and Ms Ellis (counsel for Nahimana) will object. "A clear conflict of interest now exists between Mr. Nahimana and Mr. Ngeze," Floyd continued, "and I move that their cases be separated at this point. "The court said, however, that it refused to consider separation at this point. It said Floyd had the right to use any pertinent document for the purposes of cross-questioning, but that it could not anticipate responses from other lawyers. The issue would be dealt with as and when it arose, the Chamber decided. Then ensued a heated debate about the witness's protected status. Prosecutor Rapp said that the witness was requesting hearings behind closed doors, because of his security concerns, or at least that his voice bescrambled to avoid identification. Floyd said, however, that the witness was a public figure, that he should not have been accorded protected status and that he only wanted his voice scrambled because "he doesn't want anyone to know he's coming in hereto tell a pack of lies". The court finally agreed to a short closed session to discuss the issue of the witness's protected status. Just before the court went behind closed doors, the accused Ngeze tried several times to speak, appealing to Judge Pillay in English. "Madame President, hear me," he said at one point, and then again: "It is today or never!" Judge Pillay told him to consult his counsel. Ngeze is in conflict with his assigned lawyers. However, he was earlier seen consulting Floyd during Tuesday's hearing. JC/DO/FH (ME1113e)NOVEMBER 12, 2001