Odongo: Ongwen’s Defense Has Suffered Several Constraints

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 first installment of a four-part interview, Odongo and Obhof talk about the challenges the defense has faced in preparing their case.

International Justice Monitor (IJM): How is the trial going so far for you?

Krispus Ayena Odongo: Well, we have suffered quite a number of constraints, especially in regard to resources. When we talk about equality of arms that is not exactly what is practiced. First of all, we are scattered all over the world, but basically in The Hague and as well as in Uganda. So, it’s not as if we are under the same roof like the prosecutor. Prosecution is under the same roof, so they can consult each other very easily. And the sheer number of personnel in the prosecution over the same, forget about the others who are dealing with other cases, but on the average, and you’ve witnessed this in the courtroom, there are over 10 people. These are people who are dealing in the same case. But in our case, we are scarcely five at any given time. Actually, three at any given time.

And remember that the prosecution has been at it since 2005 when the case was referred. They started their investigations. They’ve been at it, although it went into limbo for some time until the surrender of Dominic Ongwen. But it’s not as if they were starting from zero. As for us we started from when I was appointed on the 23rd of February 2015, and it takes a while to assess the situation and find who you can work with. The first person I landed my hand on was, by grace of God, this American guy [Odongo gestures to Thomas Obhof] who was hanging around. He had just fallen off from heaven, so to speak, handling the Kenyatta case. So, by and by we built ourselves into a team and the circle was not completed until about one year ago when we brought in Beth Lyons.

IJM: So, you have spoken about the issue of equality of arms, which is something I’d wanted to address in this interview. And it seems that the first time you’re raising this issue with the chamber is in your December 11 filing. And my question is why are you raising this issue now as opposed to raising it earlier? Or rather why did you raise it just in December as opposed to raising it before?

Thomas Obhof: It was raised in May of 2016 as well. In May of 2016 we complained right before our status conference, and during our status conference, that we were not receiving the funds necessary for the case. That the Registry, the Registrar was taking longer than required to make a very simple decision. There have been e-mails back and forth as well. So, the equality of arms issue, and it’s ever present when, as Krispus said, you walk inside [the courtroom] and you look at 10 to 13 people sit on the prosecution side and that’s not even half their team because they have other people down in the field, other people uploading evidence. And then you see our side and when we’re all in the courtroom there’s nobody [outside the courtroom], so it’s …

Odongo: It’s the entire team.

Obhof: Yeah. It started off a discussion about the inequality of arms and it’s always being thrown around especially in emails. It’s something that the court, especially I should say the ASP [Assembly of State Parties], does not like to hear. They think that 73,000 euros is a perfect amount of money for a normal case with 30 counts to investigate …

Odongo: 10 counts…

Obhof: No … the way they add extra money. It’s the way they add extra money.

Odongo: Okay.

Obhof: So, the way they add extra money. It really doesn’t, it makes no sense. The initial budget for investigations is meant for 90 days for two persons.

IJM: So, the 73,000 euros you’re talking about is to investigate 30 counts? So, there’s a sort of…

Odongo: That’s the premise on which…

IJM: So, there’s a scale that the registry uses to assess what your needs are?

Obhof: Yes, it’s in the document ICC-ASP/12/3 [pdf]. That’s from June of 2013, and it actually has a formula inside of there talking about full time employment, how much money you can receive or your legal team. Now when it comes to the actual investigations, it’s essentially based upon how many prosecution witnesses there are. And that’s why I say 30 because you can receive extra money say if there’s a few extra, but essentially one full time employment equals 30 witnesses or 30,000 pages of evidence disclosed. And that really is where the problem comes in.

When I’ve worked on both publicly funded and privately funded cases, and there is a serious inequity when it comes to the legal aid scheme [at the ICC] which there have been at least attempts to try to revamp, but it still needs to be looked at. I mean, the purest form of the inequalities of arms is that defense team members do not receive the same remuneration as their cohorts in the office of the prosecutor. So, I’m supposed to get paid at a P3 grade five and my salary is actually commensurate with a P2 grade one. And then when we put in money for expenses, for professional fees it sometimes can take up to a year to get repaid. Even though that money is supposed to be kept aside inside of an escrow account or some kind of interest-bearing account where the money gets moved over to the Trust Fund for Victims, but I had it in a document and request for refund of approximately 580 euros on January 11th, 2016… I received it the following January, one year later. And these are the kind of things that we always have to put up with, a lot of times footing your own billing and waiting to get paid back. I don’t mind as a lawyer being paid back 30 days, but after 30 days we’re giving an interest free loan.

Odongo: In effect, we’re talking about being forced to pre-finance the ICC and that happens all the time. You come here [the ICC] and you’re supposed to be paid DSA [daily subsistence allowance]. You’ve finished your mission, you put in your claim, and it takes three months before you’re paid. But that aside, you know there must be a sense of relativity in the amount granted on a case to case basis to the defense team because never before has there been a case of this magnitude in the ICC. If they work on the assumption of 30 …

IJM: One full time person for 30 counts.

Odongo: Yes for 30 counts. Then it would make sense that in a case where there are 70 counts they should use that formula to double, to more than double the amount they give, but they don’t go by that.

Obhof: It really is pulling teeth to try to get any extra money from the Registrar.

IJM: So, despite the fact that there is a formula, even that formula is not being adhered to?

Obhof: They have a stipulation I believe it’s paragraph five. They’re allowed to assess the situation as a whole and say, “Well we don’t think you need these many men.” According to the calculations, we should have, in addition to the four guaranteed spots, we should have an additional 12 persons to be receiving full time remuneration, which we don’t. And when you figure it out anyway it’s supposed to be we’re receiving approximately four and a half extra persons. And that tends to be the biggest problem because they assess it in the whole and they essentially give you a little bit, just enough to what they think they can do to keep you quiet for a little while.

I don’t blame CSS [Counsel Support Section] or even the people who have to write it. It’s a major flaw in the system itself. And one which I know everybody, from victims and defense, thinks that the Registrar needs to tackle head on. We’re hoping with the new Registrar coming in maybe that will be a…

Odongo: …will be more proactive, I mean pro-people.

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