Lawyer lists reasons why Ongwen should walk out of ICC a free man 

Sunday April 04 2021
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Dominic Ongwen, former child soldier-turned-Lord’s Resistance Army commander.

By Tobbias Jolly Owiny

In a February 4 ruling at The Hague-based International Criminal Court, judges at approximately 1:45pm local time convicted Dominic Ongwen, a former child soldier-turned-Lord’s Resistance Army (LRA) commander, of war crimes and crimes against humanity. 
Out of the 71 charges initially slapped against him, the court found that Ongwen, 45, was guilty of 61 charges over a reign of terror in the early 2000s, including the first conviction by the ICC for the crime of forced pregnancy. 
As the commander of Kony’s infamous Sinia Brigade, it was found that Ongwen was responsible for the abduction of girls to serve as domestic workers and sex slaves, and boys to serve as soldiers, the judges said. He had denied all the charges.   

At the opening of the trial, prosecutors played gruesome videos of the scene after an LRA attack on Lukodi refugee camp, showing disembowelled children and the charred bodies of babies in shallow graves. 
Kony promoted Ongwen to colonel at about the time of the attack, the judges said.  

Soldiers under Ongwen’s command forced some mothers abducted by the group to abandon their crying babies in the bush so they could carry supplies. One two-month-old was dumped in a rubbish pit. 
The court said Ongwen ordered attacks on refugee camps as a senior commander in the LRA, which under its fugitive chief Joseph Kony waged a bloody campaign in four African nations to set up a state based on the Bible’s Ten Commandments. 
The LRA was founded three decades ago by former Catholic altar boy and self-styled prophet Kony, who launched a bloody rebellion in northern Uganda against President Museveni. 

The judges said Ongwen ordered his soldiers to carry out massacres of civilians at the Lukodi, Pajule, Odek, and Abok refugee camps.
The United Nations says the LRA killed more than 100,000 people and abducted 60,000 children in a campaign of violence that spread to three other African nations -- Sudan, the Democratic Republic of Congo and the Central African Republic.
 
Imminent appeal

Although the 1,077-paged court judgment is now being seen by victims as pivotal in the region’s healing process from the physical and psychological wounds inflicted by the war, Ongwen’s lawyers claim the ruling is ‘utterly embarrassing’ and worth an appeal. 

The lawyers say the court did not evaluate evidence of the defence — including proof that Ongwen was “a prisoner” in an LRA camp during the attack at Pajule; that forced marriage did not occur since there was no “traditional or any other type of marriage in the bush.”
Speaking recently to Sunday Monitor from Gulu City, Ongwen’s lead defence counsel Krispus Ayena Odongo said Ongwen is appealing the February 4 verdict.

“It was a bad judgment, we are appealing,” Mr Ayena says, adding that there are several grounds on which to challenge his client’s conviction, which could see him jailed for up to 30 years. 
While Ongwen, among other things, is charged with forced marriage, Mr Ayena says his client never married any woman while in captivity and that the claim by the court was misguided. 

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“The judges should have admitted that what happened in the bush was not marriage but cohabitation. Court did not prove that there was a ceremony (ceremonies) through which the two went during which their parents exchanged gifts, to validate a marriage traditionally or otherwise,” he said. 
Besides an argument that he (Ongwen) is only barely literate in his mother-tongue Acholi and that the entire judgment should have been translated into the language he understood, Mr Odongo argues that they intend to challenge the evidence given by Ongwen’s wives in the appeal. 
 
Mr Ayena explains that much as Ongwen was entitled to a translation of all the documents into the Acholi language, especially those of all the charges against him as well as those of procedures of confirmation of charges, the court ignored it. 
“I was shocked when at some point the judges argued that since his counsel was a Luo speaker, he would translate for him. Am I a translator? I am not. In any case, I would be influencing him if I translated for him, this violated his right to a fair trial,” Ayena says. 

On February 8, days after the ruling, the defence team filed an application with the court’s Appeals Chamber to appeal the verdict. 
“Ongwen can only fully and meaningfully participate in his appeal with an Acholi translation of the judgment because he is a special needs person with mental disabilities, and requires adequate time and resources to communicate with and instruct his counsel,” the application filed on February 8 reads.

The ICC confirmed on February 10 that Ongwen’s defence had requested the Appeals Chamber to suspend the date of its notification of appeal until a full Acholi translation of the judgment was provided, instead of 30 days after the notification of the judgment. 
“The decision on whether or not to grant this request is entirely up to the ICC judges and we can’t comment at this stage. We will publish the decision from the judges as soon as it is issued,” said Fadi El Abdallah, ICC spokesperson, in an e-mail according to Daily Nation.

This week, the ICC allocated three hours to Ongwen and his lawyers to mitigate his would-be sentence.
“For the foregoing reasons, the chamber hereby schedules the hearing on sentence for Wednesday, April 14, and April 15 at 9.30 hours,” reads in part a communication from The Hague-based court. 
“The parties and participants shall be allocated time for their oral submissions as follows:-prosecution: three hours;-legal representatives of victims: 1.5 hours to divide between them; and-defence, including Dominic Ongwen himself: three hours.”

Embarrassed
Mr Ayena says they “feel terribly embarrassed by the way the Trial Chamber handled the case of my client, to a great extent we are not surprised because we had already anticipated the incapacity of the court to appreciate quite a lot of things”.
One of the key reasons Mr Ayena advances for the appeal is that the evaluation of the evidence was badly handled and that several witnesses openly lied to the court and the judges deliberately ignored the defence over that.

“If the witness is talking about 10 things and he lies about eight of them, can you treat that witness as very credible? I would say no. But in the case of Dominic Ongwen, the judges were fighting tooth and nail to find any justification to convict Ongwen,” he says.
Among several claims of lies before the court, Mr Ayena gives an example of a female witness – abducted in 2000 but she escaped in February 2003 – who perjured that while at Sinia Brigade, she met Ms Agnes Aber, a pregnant wife of Ongwen in 2003.

According to Mr Ayena, Ms Aber, who she claimed to have met in 2003, the same court has documents proving that she gave birth to Ongwen’s children in 2005 and 2007, all beyond the time she reportedly escaped. 
The same woman, Mr Ayena says, testified to the court that she participated in the Pajule attack on October 10, 2003, contrary to official court documents stating that she escaped from captivity in February 2003. 
“We challenged the court on this but the judge said it could have been a matter of lapse of memory because it happened a long time ago. She even claimed that she found in Ongwen’s home, a wife named Acen but nowhere in court evidence did Ongwen have a wife called Acen,” Mr Ayena says.

The defence team also faults the court for failing to admit Ongwen’s defence of alibi when the accused in many instances claimed he was absent from the scene of the alleged crimes. Defence of alibi loosely translated to ‘I was not there, I was not at the scene of the crime at the time you allege that I participated in the crime.’ 

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Lord’s Resistance Army leader Joseph Kony (right, seated) and his commanders in Garamba National Park, DR Congo, in 2006. PHOTOS/ FILE


 
The law on defence of alibi is that once an accused raises it, the burden of proof shifts to the prosecution to bring the accused and fix him at the scene of the crime, meaning it is the prosecution to disprove the accused. 
In criminal law world over, even in the Rome Statute under Article 67, 1(i), the burden applies. It is the duty of the prosecution to prove each element of the crime beyond a reasonable doubt, which is the same for an affirmative defence for mental disease or duress. 

“The court did not even make efforts to prove these findings, they did not take up the challenge of proof of alibi, and they simply refused to understand it. We said in the LRA, there were standing orders and then situational orders and how do you, therefore, blame Ongwen when he was just an implementer?” Mr Ayena asks.
In the LRA command, standing orders are those that were either written or unwritten, for example, the punishment for an escapee was death.  

There was also a standing order for the abduction of women since Kony wanted many women to be captured so that they could produce many children to sustain the army. 
Besides the failure to translate court documents for Ongwen, Mr Ayena claims the ICC wrongfully convicted Ongwen over the attack on Pajule and Abok in Pader and Oyam districts respectively. 
He said the attack on Pajule stood out as very peculiar in the sense that it was organised under the direct command of Vincent Otti and several commanders, including Abudema, Rascal Lukwiya, Tabule, etc.

 “Somehow, the court still found some scintilla of evidence (credible information from witnesses) and ignored everything the defence said. We, therefore, as defence, strongly assert that Ongwen shouldn’t have been convicted on the attack of Pajule.” 
He notes that at that time of the attack (on Pajule), Mr Ongwen was in prison when Kony reprimanded him for striking a deal with Gen Salim Saleh to defect with his troops.  
“It is more less the same with Abok in Ngai Sub-County where many witnesses said the person who commanded the attack on Abok IDP camp was a commander named Okelo Kalang and not Ongwen,” he says. 

The most credible reason that could have caused a stoppage of the proceeding was the defence of mental disease or defects, on one hand, and the defence of duress on the other, according to Ongwen’s defence team. 
“We are saying the war, the army, the organisation called the LRA was not a formal army. It was basically predicated on crude African spiritualism which affected Ongwen’s mental state so severely,” Mr Ayena says. 

He gives an example of his client’s account in which one of his (Ongwen) peers with whom they were arrested, escaped and he was made to skin and disembowel the boy once recaptured and made to eat under a tree on which his body was hung while blood dripped in their food. 
But the judges, during the ruling, rejected the defence’s arguments that Ongwen was himself a victim, as he had been abducted by the LRA at the age of around nine and suffered psychological damage as a result. 
“The chamber did not find evidence for the claim by the defence that he suffered from any mental disease or that he committed the crimes under duress,” Presiding Judge Bertram Schmitt said.

While reading out the verdict, Schmitt said “his guilt has been established beyond any reasonable doubt. Civilians were shot, burned, and beaten to death. Children were thrown into burning houses, some were put in a polythene bag and beaten to death.”  
However, Mr Ayena says they want to prove to a higher court that the person who was convicted was not Dominic Ongwen but the entire LRA, he was just a proxy. 

“We are saying the use of the evidence of the seven wives of Dominic Ongwen in the prosecution was wrong. Under international law, if they are wives, wives are not allowed to testify against their husbands just as husbands cannot be allowed to testify against their wives,” Ayena says, adding that the accounts of Ongwen’s wives remained valid only during the pre-trial and confirmation of charges but could not be presented during the trial. 

What others say
Mr Ongwen’s conviction by the ICC has, however, drawn mixed reactions from his family, leaders and victims in Acholi Sub-region, the epicentre of the LRA insurgency. 
Shortly after the ruling, Human Rights Watch (HRW) said the case was a landmark in achieving justice for victims of the LRA. 

“This case is a milestone as the first and only LRA case to reach a verdict anywhere in the world,” Elise Keppler, an associate director of the International Justice Programme at HRW, according to AFP. 
The retired Kitgum Bishop Macleord Baker Ochola II says the decision was unfair since Ongwen was abducted while a child.
The prelate and his peers at Acholi Religious Leaders Peace Initiative have been pushing for a non-punitive, but restorative justice system that seeks to rehabilitate offenders. 

“There is nothing like fairness in this [judgment], he (Ongwen) was just being used by the LRA top commanders at the time. He would not have been punished twice [because] he was forced to kill,” the retired bishop says. 
Mr Ambrose Olaa, the prime minister of the Acholi cultural institution, says: “ICC has done what was expected, looking at the atrocities that befell us in the north, but we also feel that the traditional justice system can also do the same  since we have seen it work in  some countries.’’

Many of the former LRA fighters who surrendered and admitted their crimes were forgiven through a traditional cleansing process called Mato Oput. 
Rwot Yusuf Okwonga Adek, Pageya clan chief, also a former personal advisor to Joseph Kony during the juba talks, believes that the indictment and conviction was inhumane and disastrous to the Acholi people. 
“The conviction hurts his family the most because the burden of responsibility shifts to them. Traditionally, when someone surrenders from war, he or she surrenders to be pardoned but not to be punished, why did they have to do that? People are divided over this,” he says. 

Rwot Adek also disagrees with Mr Ayena’s argument that Mr Ongwen was psychologically derailed, adding that the conviction serves a huge advantage to the LRA war victims.  
“It is wrong to say he had a mental condition, that should not be an excuse but what we need to admit is that he consciously executed such orders and knew so well the implication. His conviction also means that the victims will be compensated through the ICC Trust Fund.” 

Mr Henry Komakech Kilama, the victims’ lawyer in the Thomas Kwoyelo case, says the verdict is unfair because only Ongwen was facing the court. “Many people, including commanders, committed serious atrocities during the war but it is unfortunate that only one man is being charged,” he says.
 

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