Two members of Dominic Ongwen’s defense team – his lead lawyer Krispus Ayena Odongo and Thomas Obhof – sat down with the International Justice Monitor on March 28 to talk about the defense case. This was about two weeks before the prosecution, on April 13, formally closed their case against Ongwen at the International Criminal Court. In this third installment of a four-part interview Odongo and Obhof talk about LRA leader Joseph Kony’s control over the group and how they intend to defend Ongwen against the charges of sexual and gender-based crimes he faces.
International Justice Monitor (IJM): In fact, duress was one of the notices you gave in terms of the defense points, issues that you are going to raise, exculpatory…
Krispus Odongo: Hmm.
IJM: I think the same date, August 9th , there was the alibi, duress, and the third was mental illness.
Odongo: Mental illness or defect.
Thomas Obhof: The big crux too with the duress, which I think Krispus was leading to… is the concept, the real-life actions we have called collective punishment. So, when one person escaped and successfully escaped there were repercussions towards your home village. And that several of the original people who were abducted before they [the LRA] moved to the Sudan discuss about a little black book which [LRA leader] Joseph Kony would hold. And this is something that they would write down and note where people were abducted from. So, if you escaped, [the LRA] go back to your home and destroy everything and kill everybody in sight. And it was, P-205 put it rather well when we put it to him about one of his interviews with the prosecution where he was told by a village elder, “If you get abducted don’t come back. It’s like you will bring death and destruction to our people. So, if you’re abducted you stay in until you die.”
…And there are several witnesses, of course it’s confidential, so we can’t say who but there really were, who had execution orders and that’s when they escaped. So, it tends to be this concept of the collective punishment. You know we mentioned the other day at Atiang in 1995. There were couple of places in Palabek in ‘96, ’97, and ’98. You had Mucwini Center in 2002, you had Omot in 2002. So, there are more places like Ober Abic in 1990. There are a lot of these small villages that were attacked only because somebody escaped.
IJM: And in terms of the defense of mental defect and illness is there more beyond what we’ve already seen?
Odongo: More beyond where?
IJM: We have two defense experts who filed reports. We have the court-appointed expert who’s filed a report and now we have prosecution experts who are testifying, one is left to testify.
Odongo: I think those are all four for them. But we are going to get our own experts…
IJM: Those are the experts who met with Ongwen last year?
Obhof: And there was a discussion I think you might, you might not have been here yet, but in court about doing another Rule 135, having a full examination with court-appointed psychiatrist. So, essentially do the same thing as [our experts]*, but they’d be doctors who are controlled solely by the judges and have no contact with the parties. All contact with the parties would be directly through the judges. So, there would be a term of reference. It would be drafted, requested by the judges, and the judges would take that and write their own term of reference. They would call the experts. The experts would do their own investigations and report back to the judges. And, of course, they would also come in and testify and be questioned by both parties. But it’s something that we briefly touched upon, and we mentioned it in court the other day that we’ll be looking into it.
IJM: Okay. And I know you’ve touched on this in terms of the issue of duress but maybe there might be areas you’d want to say some more about it because during the questioning of prosecution witnesses an issue that you’ve kept returning to is LRA leader Joseph Kony and the spirits that he has claimed to speak to. Why is this important in your defense of the client against the charges that he faces?
Odongo: The LRA war is basically about spirit control. Control of the forces through the spirit mechanism and that spirit dwelled only in one person who was the alpha and the omega, that was Joseph Kony. And it was the case that Joseph Kony did not have to consult anybody. And if he didn’t consult you, however wrong he was, it was not open to you to even oppose it. So that’s why most of the time you want to make sure that the judges get to know that everything that was done was done on behalf of Kony, and either on behalf of Kony. Not either, all the time. On the strict directives of Kony. He said for this time there will be no killing at all, just go and abduct people or just go and look for food even if you find people don’t abduct anybody. It would be so. If he said, yeah, this time the question of not letting blood does not arise, go and do your worst. Bring food, but most particularly go and bring food. Whatever you find on the way, well, is up to you. Do the abduction and so on and so on.
That’s why all the time … and you know we are saying that, you see the charges against Dominic Ongwen are not really charges against him. It’s charges against LRA per se, the entire LRA. And what was LRA? LRA was actually Kony, mainly Kony, because Kony would make or unmake. That’s why I always kept on referring to him.
IJM: There’s also, I think, there are about maybe 18 counts related to sexual and gender-based violence, both him [Ongwen] directly and indirectly. I know in relation to the direct charges against him that was dealt with by the pre-trial chamber and that testimony and the transcript of those hearings have been adopted by the trial chamber. Is there any more defense you are going to present in relation to those charges?
Odongo: You know, that’s why we were very penchant about the trans-cultural study of this lady [psychiatrist Catherine Abbo, who testified between March 26 and 28, 2018]… First of all, we’re going to argue very forcefully that there was no such a thing like marriage. That was cohabitation. But, in any event, how is marriage constituted in the context of an African, and more particularly in the context of Acholi? Or the extreme example is the Karamajong. Courtship among the Karamajong. In fact, the question of rape does not even arise because if you must pick on a Karamajong girl might is power. A girl might even like you and everything is okay, but she wants you to prove that you’re stronger than her, you’re a man. So, you get her and chase her and then you wrestle and if you throw her down and then those things happen, then you can marry her. Now, in the Acholi culture there were such things like courtship. The other day somebody was bringing up something very important, very, very strange. You know, in the Acholi culture they put on beads. You know, those things which you can wake and they call it ocoo lamero.
Obhof: I just call them beads. I don’t know the Acholi phrase.
Odongo: Ocoo lamero means “the beads worn around the waist wake up even a drunkard to perform his conjugal duties.” And it’s so dear and central in courtship in the Acholi. That’s why I asked that lady the other day.
Obhof: That’s as far as we’re allowed to go, that’s as far we’re allowed to go. Everything else was said in confidential setting.
Odongo: No, no, of course. You remember that she was very sensitive about it because she knew what I was saying. So, what am I saying in this context? You know in the Acholi culture, first of all, this question of consent, organized proposals, engagements, and things like that does not actually arise. Not only Acholi, even in my own tribe. I’m a Lango. We’re the same with Acholi more or less, but we differ in some minute details. Parents sit sometimes even without your knowledge and they say… [Eds note: The interview is interrupted briefly.]
Arguing that because, first of all, the boy and the girl, who of them, for instance, raped the other? Because in a situation where a woman was older than the man you’re put in a condition and both of you are actually used as tools of war. And there was the bigger picture of Joseph Kony saying he wants to create a completely new tribe because Acholi tribe has let him down. So, he wanted to use his fighters as tools for procreation to create his own tribe. So, was it open to anybody, if you are given a girl, to refuse? No. That’s a duty, part of your duties. So, we want to canvass some of these dimensions. And when you come to think about it, I am not responsible for my abduction, but I find a girl of the opposite sex, and we’re put in a situation where we are going to live together anyway, perhaps for the rest of our lives. The dictates of nature, will you argue that, you know, something less would have happened even if it was not him but you for this girl? It would still have happened.
So, it’s a fairly complex thing, but we are trying to say, especially in the case of Dominic Ongwen, there are instances where people say he was a bit reserved. Actually, he resisted having a woman for a long time until he was prevailed upon by Joseph Kony. So, a child like that how can you say that … And what happened in the bedrooms although one or two people gave evidence to point to the fact that there was forceful first encounters and so on and so forth. Anyway, those are the things we want to look at.
*Since the original interview took place, the court has reclassified the names of the defense expert witnesses as confidential.