ICC prosecutor nominee Okalany’s journey to the international scene

Sunday July 5 2020

High Court Judge Susan Okalany.

High Court Judge Susan Okalany. 

By Derrick Kiyonga

In 2014, during the trial of Jacqueline Uwera Nsenga, who was accused of fatally overrunning her husband, Juvenal Nsenga, in 2013, the ridiculous happened: a high ranking police officer stepped into the witness dock and testified in favour of the accused.

Geoffrey Musana, then deputy director of the Criminal Investigations and Intelligence Directorate (CIID), was presented by defence lawyers led by Nsubuga Mubiru before trial judge Duncan Gaswaga.

Musana insisted that the police, which investigates criminal cases, had advised that the Director of Public Prosecutions (DPP) charge Uwera, a relative of then-police boss Gen Kale Kayihura, with a mere traffic-related offence. He said that advice was unheeded to by then DPP Richard Buteera, who invoked his constitutional powers and charged Uwera with murder.

By the time Uwera’s trial kicked off in 2014, Buteera had long left office having been appointed as a Court of Appeal judge and later promoted to the Supreme Court. Buteera’s replacement, Justice Mike Chibita, dispatched a team of two female prosecutors and its leader was then Principal State Attorney Susan Okalany casting her into the limelight for the first time to prosecute Uwera.
It was Okalany who grilled Musana during an intense afternoon session. Although police didn’t corporate with Okalany’s team, she managed to convince Justice Gaswaga who sentenced Uwera to 20 years in prison for murdering Nsenga.

As Uwera was being welcomed to prison, Okalany’s stature, professionally, was being elevated: She was promoted to the rank of Senior Principal State Attorney. Before this, Okalany between 2003 and 2010 had been posted to serve as a Resident State Attorney in Masaka, Iganga and Mbarara and supervising criminal cases such as of Tororo, Pallisa, Busia, Iganga, Bugiri, Mayuge, Masaka, Sembabule, Rakai, Mbarara, Isingiro, Kiruhura and Ibanda.

Okalany is no longer a prosecutor. She was appointed a High Court judge in 2016 and was consequently deployed to the eastern town of Mbale before being redeployed to the Family Division of the High Court earlier this year.


It seems, however, that she wants to go back to her a job of prosecuting uncompromising criminals, but this time at an international level: The International Criminal Court (ICC).
This week, Justice Okalany, after a rigorous process, was listed together with three others by the Committee on the Election of the Prosecutor for the job of the prosecutor at the court headquartered in The Hague in The Netherlands.

Others on the list are Morris A. Anyah from Nigeria, a trial attorney in the Law Office of M, LLC in Chicago, Illinois, USA, Fergal Gaynor from Ireland, currently the Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia; and Richard Roy from Canada, a Senior General Counsel with the Public Prosecution Service of Canada.

According to a document released by the ICC, one of the key aptitudes required of the prosecutor, as reflected in the Rome Statute itself, is that he or she be “of high moral character”. This requirement, which is the first among several competencies listed in Article 42(3) of the Rome Statute, was reflected in the vacancy announcement.

“Efforts were made to address key aspects that would reflect high moral character and integrity,” the document says. “Thus, the vacancy announcement, in a language approved by the Bureau of the Assembly of States Parties, provided that the next ICC prosecutor must not only possess high moral character, but also a high commitment to the values and guiding principles of the ICC as well as impeccable personal and professional integrity.”

Other qualities needed for anybody to compete for this job include high competence and extensive practical experience in the prosecution or trial of criminal cases; and (excellent knowledge of and fluency in at least one of the working languages of the court – English and French).

Though integrity is an overriding factor for the ICC when considering its prosecutor, Justice Okalany wrote her name in the annuls of Uganda’s criminal justice system in 2016, but under peculiar circumstances.

In March of 2015, Justice Alfonse Owiny-Dollo was presiding over the trial of 13 men accused of being the masterminds of the July 11, 2010, Kampala twin bombing. But on March 30, hours before she could reappear before Justice Owiny-Dollo, Joan Kagezi, the assistant Director of Public Prosecutions who was leading the DPP’s team in the novel case, was gunned down in Kiwatule trading centre in Kampala by two assailants who had been trailing her on a boda boda at about 7pm.

Some of the 2010 bomb suspects at High Court in
Some of the 2010 bomb suspects at High Court in Kampala in 2015. Following the killing of Joan Kagezi in 2015, Okalany was tasked with completing Kagezi’s job of prosecuting the suspects. PHOTO | FILE

No person has ever been prosecuted for the murder. By the time Kagezi was killed, she had presented two key witnesses. Her death threw the DPP’s office into pandemonium.

But after days of reflection, Chibita threw Okalany into the deep end. She had to complete Kagezi’s task. In the case that saw Okalany present 81 witnesses, who included detectives from Kenya, Tanzania and Americans in form of FBI agents, she came up against seasoned criminal defence lawyers in Caleb Alaka, Evans Ochieng, Julius Galisonga and Yunus Kasiriivu.

After a protracted trial, eight out of 13 accused persons were convicted and sentenced by Justice Owiny-Dollo to various jail terms, including life imprisonment, 50 years and community service.

This cemented Okalany’s record and she went on to bag the award of prosecutor of the year by the International Association of Prosecutors in Beijing, China, in September 2017.

Resuscitating cases, it could be contended, is Okalany’s niche. In 2009, the country was in for a shock when the now-retired High Court judge Moses Mukiibi acquitted businessman Kato Kajubi who was being accused of sponsoring the ritual murder of Joseph Kasirye, a 12-year-old pupil of Kayugi Primary School in Makungwe sub-county, Masaka District, on October 27, 2008.

The State appealed and the Court of Appeal ordered a retrial in Masaka under a new judge who happened to be Justice Chibita. On the second time of asking, Okalany was part of the team that swayed Justice Chibita that Kajubi was guilty as charged and he deserved to spend the rest of his life in prison.

The Court of Appeal has since upheld that finding.

In 1993, having graduated from Makerere University with Bachelor of Laws degree, Okalany started out as a pupil State Attorney in the office of the DPP but is an indication of how far she has come, the document released the ICC says she has forged an impressive career under challenging circumstances, steered by a clear vision of the rule of law and justice for victims and a strong streak of independence in the face of political pressure and traditional gender roles.

“Although her prosecutorial and judicial experience is limited to the domestic arena, her experience in prosecuting atrocity crimes and addressing sexual and gender-based violence are highly germane to the substance of the court’s work,” the committee said upon interviewing and assessing her record.

When she was applying for the job last year, we understand that affable Justice Okalany got that backing of Deputy Chief Justice Owiny-Dollo and High Court judge Margret Mutonyi who penned recommendation letters in support of her bid for the Job.

On June 7, 2019, the committee on the election of the prosecutor was instituted and it included, Marcin Czepelak (Poland); Lamin Faati (Gambia); Andreas Mavroyiannis (Cyprus); Sabine Nölke (Canada); and Mario Oyarzábal (Argentina).

Initially, the five-member committee had made preparations for the interviews to take place in person in The Hague between April 28 and 30, but such plans were folded once the coronavirus contagion spread all over the world shutting down airports.

With that, the committee resorted to plan B: They carried out interviews between May 12 and June 5 via the court’s secure video-conferencing platform and Cisco WebEx.

According to various sources, Justice Okalany was interested in the job of DPP but President Museveni, for myriad reasons, decided to appoint Justice Jane Frances Abodo. But being shortlisted for the prosecutor’s job at the ICC, in its self, is a reminder of Justice Okalany’s skills and how far she has come having studied both her primary and high school in rural eastern Uganda in the late 80s and early 90s.