Judge Orders Prosecution Experts to Testify on Ongwen’s Mental Health

The issue of Dominic Ongwen’s mental health while he was a commander of the Lord’s Resistance Army (LRA) has become a matter Trial Chamber IX will have to assess when the judges weigh the evidence presented during Ongwen’s trial.

This follows the order Single Judge of Trial Chamber IX, Bertram Schmitt, issued allowing three prosecution mental health experts to testify at the end of the prosecution case. Judge Schmitt made his November 16 decision after ICC Prosecutor Fatou Bensouda requested Witnesses P-445, P-446, and P-447 be allowed to testify.

Bensouda made her October 24 request after the issue of Ongwen’s mental fitness to stand trial was addressed in December last year, and related matters arose earlier this year. She also made the request in anticipation of Ongwen’s lawyers following through on their notice in August 2016 that they may raise as a defense his mental state during the time crimes he is alleged to have committed occurred.

Ongwen has been charged with 70 counts of war crimes and crimes against humanity that he allegedly committed in northern Uganda between July 2002 and December 2005. He has pleaded not guilty to all counts.

Responding to Bensouda’s request to call mental health experts, Krispus Ayena Odongo, Ongwen’s lead lawyer, asked Judge Schmitt to decline it. Odongo presented two key arguments in his November 6 submission against the request.

He said it was time-barred because the deadline for the prosecution to disclose their evidence, including their list of witnesses and evidence – September 6, 2016 – had already passed. Odongo said the prosecution had not given compelling reasons why they should be allowed to add more witnesses more than a year after the deadline.

Odongo’s other main argument against the request was that the prosecution was asking the chamber to hold a joint session to hear evidence from both prosecution and defense experts on the issue of Ongwen’s mental health. Odongo said even though the defense had given notice that they may use Ongwen’s mental health as a defense to against the charges he is facing, it did not mean the issue had to be addressed in a joint session.

“The Defence avers that this motion is just another attempt by the Prosecution to arm twist Mr Ongwen to testify against himself in the Prosecution case against him by pitting potential Defence witnesses with the Prosecution’s retained medical practitioners,” said Odongo.

In his November 16 decision, Judge Schmitt agreed that there is no need to have a joint session of experts from the prosecution and defense testifying, but he did not agree that having the prosecution experts testify would affected Ongwen’s fair trial rights.

“Contrary to the arguments of the Defence, the Single Judge also does not consider that permitting the addition of the Prosecution Experts and their associated documents constitutes any sort of compulsion for Mr Ongwen to testify or a reversal of the burden of proof,” said Judge Schmitt in his decision.

In their response to Bensouda’s request to call mental health experts, lawyers representing two groups of victims said they fully supported it in an October 26 email, but they did not file any submissions on the matter. A copy of their email is not available on the court’s website, but Judge Schmitt referred to it in his decision.

In that November 16 decision, Judge Schmitt said the prosecution will not need to lead the experts to present their evidence in detail. He said the experts can testify under Rule 68(3) of the ICC Rules of Procedure and Evidence. This means the prosecution will call the experts to court and ask if they object to their reports being used as evidence in the trial. If the experts do not object, the prosecution may choose to ask some clarifying questions before the witnesses are cross-examined by Ongwen’s lawyers.

Judge Schmitt also gave his reasoning why there was no need for the chamber to hold a joint session to hear evidence from prosecution and defense mental health experts.

“The Single Judge is not persuaded that the issue of Mr Ongwen’s mental health is so extraordinary that the Prosecution Experts need to be heard in a joint session outside the standard trial framework,” said Judge Schmitt.

“The Chamber is capable of assessing the testimony of competing witnesses testifying at different points in time. Such assessments are routine over the course of a long trial, including on technical or complex matters,” he explained further.

After raising the possibility of using Ongwen’s mental health as a defense against the charges he faces in August 2016, his lawyers then raised the issue of whether he was mentally fit to stand trial. This happened the day before his trial started on December 6, 2016. The chamber determined he was fit to take a plea and asked the defense to make available to the chamber the report of experts they had hired to examine Ongwen.

In a December 16, 2016 decision, the chamber found the defense experts concluded Ongwen was fit to stand trial, but they were also concerned about his mental state while in detention. The chamber appointed an expert, Joop T. V. M. de Jong, to look into the issue. De Jong’s report is not publicly available but has been given to the prosecution and defense.

Judge Schmitt’s decision that the three prosecution mental health experts testify at the end of the prosecution case means they are likely to do so in the first half of next year. This is because there are up to 12 prosecution witnesses remaining to testify.

On November 30, when the trial adjourned for the year, 53 prosecution witnesses had testified. In his July 13, 2016 order of the conduct of proceedings, Judge Schmitt said the prosecution would call a total of 65 witnesses out of a pool of 115 witnesses. Based on this number, only 12 prosecution witnesses remain to testify.

However, the number is likely to change. Time has passed since that initial direction, and the prosecution will have been constantly assessing the needs of their case, including which witnesses to call.