Odongo: We Have Not Taken a Definitive Position on Filing a ‘No Case to Answer’ Motion

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 fourth installment of a four-part interview Odongo and Obhof discuss ways they view Ongwen’s fair trial rights were not respected.

International Justice Monitor (IJM): …[G]oing back to the issue of fair trial rights, there are several filings you’ve made to raise this issue, but at the same, time it seems they’re being raised now…they’re being raised in the last few months with the trial chamber. I’m not talking about the pre-trial phase. Are these the sort of things that you could have raised earlier with the trial chamber?

Thomas Obhof: Some of them, most of them, no. Especially with some of them, they arise when they happen. And the other ones, I would say are issues that have been a constant thorn in our side and that we always mentioned, we’ve mentioned them every once in a while in court.

Krispus Odongo: They are both technical and administrative ones. The technical ones I can give an example of giving notice of the charges and the right of the accused actually to be read the charges in detail and asked whether he answers. Because, of course, our background is common law background. If you want to look at the charges from the perspective of charge sheets, it is the law that, you know, it should be explained to you the charge one by one and then you enter a plea on each of them.

“Mr. Maliti, you’re charged with this offense. First count, on such and such a day you went to somebody’s house and you are found doing ABCDE and therefore you are charged with the offense of theft. Have you understood?”

“Yes, I’ve understood.”

“Do you plead guilty or not guilty?”

Your answer is supposed to be unequivocal. You must answer without equivocation. In other words, you say, “I understand, and I plead guilty.” But if you say, “I understand but you see although I did it, it was because of this, it was under such and such,” that is unequivocal. That is a plea of not guilty. They should enter a plea of not guilty. This was not the case in the case of Ongwen. They just said, “We are asking you to waive your right.” That should not happen.

Obhof: I don’t think they asked us if it was in order. It wasn’t even an ask. It was, “This is what we’re going to do.”

Odongo: Yeah, I think this is what we’re going to do because you have had this document with you for a long time and so on and so forth, this is it, and they did it. But more particularly the modes of liability, which are pertinent in the case were never notified to him [Ongwen] at all. So, these are fair trial issues that must be addressed I think. And then, the administrative ones…

Obhof: I mean you have dating all the way back from May…of 2016 with the first status conference complaining about statements not being translated, statements taking too long to get to Dominic, and then the judges saying, “Well, three months is good enough.”

Where you look at somebody who has a third-grade education. Whose, essentially his only term of reference of reading is the Bible in Acholi. He needs time. And…there are other issues involved there. The mental disease or defect, which deal with that and the fact that he can’t read. Honorable [Odongo] or myself can sit down, and I can pump through 4- 500 pages in a day. It just won’t happen for him. Issues about his rights, his family rights. That was one of the biggest things that we consistently fought for, his family to come up, just for basic fundamental human rights. Luckily, the registrar happened to make a few phone calls, found money for everybody because the same thing was going on with other indigent persons who are at the detention center. They’ve been up here for three, four years, never had family visits from their family. Bosco Ntaganda was one of them. Never had a family visit until eight months ago or so.

There are a lot of those ones that you don’t see that are going behind the scene because it might not come in the course for trial, but there are issues that you file [under] Regulation 125 or Regulation whatever and it remains confidential.

Odongo: Of course, following on what, about translation, the right to be given translation and in good time. You know part of the justification was that merely because his counsel speaks his language therefore he was in a position to explain everything to him. But that’s not right. Even if I was an Acholi, I am an upscale person, you know, and you’re talking about person with… So, my communication skill must be a trained one in order for me to let him know. So how can they say that I’m in a position to translate and explain to my client some of those intricate things that would need specialized personnel to go through and make that person understand.

IJM: In a November [submission to the court] you said you may potentially file a notice for a no case to answer motion saying it was theoretically appropriate to raise that possibility. Now that the prosecution case is at its end, are you going to request a chamber to allow such a motion?

Odongo: We are preparing for that. I don’t think we have taken a definitive position on it. But that’s one of the issues that we preserved to raise…at an appropriate moment. Of course…we are going to make an in-depth analysis of the charges and see whether, first of all, they were properly drawn. Secondly, whether they really constitute the offenses that are being alleged. And then we shall also draw out from, I mean at the right time we shall draw out from the evidence of the prosecution and see whether they’ve made out a case. If we think they’ve not made out a case, then we return a proposition that there is no case to answer. We request [the] court to come to a finding that there is no case to answer. At least on some, if not all the charges.

IJM: Because you have mirror counts?

Odongo: Yes.

IJM: War crimes and crimes against humanity and the two require different defense approaches?

Odongo: Yes.

Obhof: I think, especially in terms of Pajule, the approach is the same. He just wasn’t there.

Odongo: Pleading alibi is different from …

Obhof: From everything else.

Odongo: From no case to answer.

IJM: And from your perspective, how would you compare appearing and arguing a case before the International Criminal Court with litigating a case in a Ugandan court?

Odongo: It’s more intense in a Ugandan court. But I think this [the ICC] is more organized than the Ugandan courts because there is no element of surprise. You know everything beforehand…The question of ambush does not work here [at the ICC]. But apart from that, it’s more or less nothing different.

IJM: When you say it’s more intense in Ugandan court, could you elaborate a bit more what you mean by that?

Odongo: Intensive. Well, you see in the Ugandan court the elaboration with which preparations are made does not meet the standard of this place [the ICC]. And the amount of materials that are presented does not meet the standard of this place. Because like I say you go and get your witnesses. You collect all the materials and present them well in advance for the other party to study and act on. But in Uganda, you know, a charge sheet is drawn, a person is brought to court and then he takes the plea. The next morning they’ve started already questioning him. Something like that. So, I think that’s my comment.

IJM: That’s the end of my questions.

Odongo: Thank you.

IJM: Thank you very much.

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