A defense lawyer questioned how Ugandan intelligence agencies could have given evidence on the Lord’s Resistance Army (LRA) to the International Criminal Court (ICC) months before the court issued an arrest warrant for five LRA commanders.
Krispus Ayena Odongo, the lead lawyer for Dominic Ongwen, challenged witness Lieutenant Colonel Timothy Nabaasa Kanyogonya on how he determined what evidence to give the ICC in 2004 without an arrest warrant. On Tuesday, Kanyogonya said he was a lawyer and was competent to assess what the ICC may need.
Kanyogonya was testifying as the person who liaised between various Ugandan intelligence agencies and the Office of the Prosecutor (OTP), handling requests for information and other matters. Kanyogonya is the director of legal services at the Chieftaincy of Military Intelligence.
In December 2003, Uganda referred the conflict in northern Uganda, where the LRA was fighting a rebellion, to the ICC. The OTP subsequently opened an investigation.
Ongwen is one of five LRA commanders for whom the ICC issued an arrest warrant. The others are LRA leader Joseph Kony; Vincent Otti, who was once deputy leader of the LRA; Raska Lukwiya; and Okot Odiambo. The ICC has declared Lukwiya and Odiambo dead and terminated the cases against them. Otti is widely believed to be deceased, but the ICC has yet to formally declare him dead.
In January 2015, Ongwen surrendered to a rebel group in the Central Africa Republic and eventually ended up in ICC custody. He is currently in detention at the ICC and has been charged with 70 counts of war crimes and crimes against humanity. The charges include his alleged role in attacks on four camps for internally displaced people in northern Uganda between 2003 and 2004.
During Tuesday’s hearing, Odongo asked Kanyogonya about the type of evidence against Ongwen that he provided to the ICC.
“How did you come to know what was incriminatory and what was exculpatory (evidence)?” asked Odongo.
“Your Honors, the way I look at it, it was not that I needed to know what was incriminatory or exculpatory for Dominic Ongwen. There were incidents of attacks…. They [the LRA] would also sometimes order their forces not to kill people. This is the kind of evidence that was given to the ICC,” replied Kanyogonya.
A little later, a discussion followed between Presiding Judge Bertram Schmitt, Odongo, and senior trial lawyer Benjamin Gumpert about the details of Kanyogonya’s first statement to the OTP. Prosecution investigators interviewed Kanyogonya on November 22, 2004; he signed his statement on March 18, 2005.
Since an arrest warrant had not been issued at that time, Odongo asked whether Kanyogonya could say he was, “properly seized to execute your duty to give indications of what was exculpatory and what was incriminatory?”
Kanyogonya replied that he was given the job of liaising between Ugandan intelligence agencies and the ICC because he is a lawyer.
“I do not need the warrants to help me know what a crime is,” said Kanyogonya.
“And we are talking at the time of a lot more suspects on the table, as it were,” added Judge Schmitt, referring to Kanyogonya’s testimony on Monday that Uganda gave the ICC evidence on 15 LRA commanders.
Earlier on Tuesday, Odongo asked Kanyogonya about allegations against the Ugandan military during the conflict in northern Uganda.
“Did it occur to you that it might be necessary, and your duty, to provide exculpatory evidence to indicate other notorious commanders on the other side of the battle?” asked Odongo.
“Your Honors, I am not aware of notorious commanders in the UPDF [Uganda People’s Defence Forces],” replied Kanyogonya.
“Mr. Witness, can you tell or confirm to this court whether there were hues and cries about incidents of indiscipline of UPDF officers in the prosecution of the war against the LRA?” continued Odongo.
“I do not know of any commanders of the UPDF committing atrocities in the war against the LRA,” answered Kanyogonya.
Odongo also questioned Kanyogonya about the documents the UPDF seized from the LRA and why Kanyogonya did not pass on to the OTP everything they seized.
“We used to find textbooks, dictionaries…without anything written on them that would aid the ICC. So those ones, I excluded them because they had no evidential value,” said Kanyogonya.
He also said some of the documents they seized were “indecipherable.”
“Can you assist court to understand what you mean by indecipherable documents?” asked Odongo.
“If you look at the documents that they collected in the battlefield they would come in sacks. Some of them were in boxes. Some of them were wet. We could not even make sense out of them. Some of them, the pages were stuck,” replied Kanyogonya.
Odongo asked Kanyogonya about UPDF and Internal Security Organization intercepts of LRA radio communications. Odongo questioned Kanyogonya on whether he listened to them and whether during his second interview with prosecution investigators in 2015 he confirmed that what they had were the same recordings Uganda had given the OTP.
Kanyogonya said he did not listen to the intercept tapes because they were in Acholi and he does not speak Acholi. He also said that, during his 2015 interview, all he did was confirm that registers of the evidence given to the OTP were the same ones he was shown during that interview.
When Odongo finished questioning Kanyogonya, Judge Schmitt adjourned the proceedings to Wednesday. He said a new witness, P-081, would testify.