Earlier this month, International Justice Monitor interviewed Krispus Ayena Odongo, the lead defense lawyer for Dominic Ongwen, in Gulu, Uganda. Odongo was in the country for an outreach session organized by the International Criminal Court (ICC) outreach office in northern Uganda. In this interview, Odongo shares his perspectives on the trial and his experience as a litigator.
Ongwen is a former commander of the Lord’s Resistance Army (LRA) who is charged with 70 counts of war crimes and crimes against humanity allegedly committed in the former internally displaced person (IDP) camps of Lukodi, Pajule, Odek, and Abok in northern Uganda. Among the 70 counts are charges of sexual and gender-based violence and the use of child soldiers. His trial before the ICC has been ongoing since December 2016.
Below is an abridged version of the interview.
Lino Owor Ogora (LO): How would you describe your experience of defending Ongwen so far?
Krispus Ayena Odongo (KO): Defending Ongwen has been full of anxiety and full of cause for defending myself. As I defended Ongwen, I also had to defend my decision of defending him because one of the crime scenes [Abok] is just in the neighborhood of my home. Those are my relatives, in-laws, and friends who died. You know, I am a politician. I was a member of parliament, and I represented the constituency in which Abok is. The biggest question I have had to answer is: how does a man who comes from this area go to defend a man who [allegedly] killed our people here? I lost my constituency on account of that. My opponent capitalized on that saying he is trustworthy and a hero. My experience as a lawyer defending Ongwen has therefore been full of anxious moments and having to explain why I got involved. Many people ask how a man in his sane mind would defend Ongwen.
LO: How have you dealt with the hostility?
KO: Oftentimes I have had to engage many people, especially my political assistants and elders who know me. The good thing is that I live a life of a very friendly man and people know me as clean-hearted and kind-hearted. It was not too hard to explain to them because each time I had an opportunity, I would challenge them and say, ‘OK, Ongwen could have been your kid, and if he was captured at the age of nine, and you did not see him after 26 years, and you considered him dead, but he finally escaped and surrendered, would you want me to go and save that son of yours in court?’ Except in a few incidences, most of them agree with me. Even prosecution witnesses are singing praises for Ongwen’s character. So by and by people seem to be understanding me.
LO: Despite the hostility, would you describe your experience of defending Ongwen as something you are enjoying in your career as a litigator?
KO: As a litigator, I couldn’t have had a better opportunity. You know we are dealing with a very intricate, metaphysical background of the case. We are dealing with not only a child soldier, who was a victim, but a victim who is trying to make people understand his experience. This includes the metaphysical atmosphere that he went through coupled with physical punishments and the experiences of gruesome killings.
We are pleading the defense of mental defect and duress. Unlike other army structures, Kony did not call to discuss with his commanders on strategies or to decide and agree on which place to attack. He [Kony] also said those were not his orders because he was directed by the spirits. This is a very serious case, and that is why we even took the ‘ajwaka’ [spirit mediums] to tell court that these spirits in Acholi and Lango are real. We took experts and we asked them to explain to court what effects the spirit would have on their victims. Therefore, my experience in this case as a litigator has been good. We are contributing to a jurisprudence in international criminal justice, and we are pleading the case of a child soldier very emphatically because the Geneva Convention and all the other conventions call for protection of children in armed conflict.
LO: Some people argue thatOngwen is both a victim and a perpetrator. What in your opinion needs to be done to ensure that victims of the alleged crimes also get justice?
KO: When Ongwen was captured at the age of nine, where was the international community? Where was the government of Uganda? Was Ongwen a perpetrator or a victim? All seem to agree that Ongwen was a victim, but the argument is that by-and-by he became a perpetrator. Now, we want them to give us a timeline of when Ongwen started to become a perpetrator. That is the point of concern. Once a victim, always a victim. If you are captured at the age of five and kept in captivity, under surveillance, under spiritualism, under a threat of being killed when you escape, how would you say that person became a perpetrator? Because, as far as I am concerned, the 26 years Ongwen spent in the bush, he was a captive under special consideration that he was a good fighter and therefore had security around him to prevent him from escaping. All this should be taken under consideration when arriving at the question on whether Ongwen transcended into a perpetrator.
The argument on the other side is that as a child before the age of 15 he was a victim, but at 16 he became an adult and thus responsible for his actions. My question is: what informs adulthood? As far as I am concerned, what informs adulthood is that you live with your peers, you learn about the do’s and don’ts of society at a fire place when your elders are talking to you, and they are guiding you on how to handle peoples’ daughters, properties, elders, and … you begin to develop these things internally. At the age of 18 in Uganda, people assume you have internalized all these in mind, and you are now an adult. In the case of the ICC, at the age of 15 you are now an adult. But tell me, where do you expect a child like Ongwen who was captured at the age of nine and taken to the bush to have learned these things from? I hope the court will look at this argument very carefully.
LO: What do you think needs to be done to handle people who were abducted as youths, like Ongwen, who are many in northern Uganda?
KO: You see, once a victim, always a victim. When as a child you are captured and kept under the atmosphere of Joseph Kony, there is no way you can become a perpetrator because the acts that you are performing are not your own. Those are the acts of the LRA, the acts of Joseph Kony. To be a perpetrator, you must have the power to decide what to do or not to do. So long as you do not have the power, then you cannot be a perpetrator because the things that you are asked to do are not your acts or your mission.
LO: Should Joseph Kony be the only one held to account for all these acts?
KO: We are not saying that offenses were not committed, but that those crimes were committed by the LRA. In fact, the offenses brought against Dominic Ongwen are charges against [the] LRA. So, this LRA is Jospeh Kony
LO: I find your perspectives on spirituality and Ongwen’s mental health very interesting. Do you think these are sufficient grounds for his acquittal?
KO: I totally believe because duress, for instance, is defined such that you must be under imminent danger of being killed or those around you for whom you are responsible being killed. Let’s assume Ongwen committed these crimes he is accused of. I am not saying he committed them. I am saying he had no choice because wherever he went he knew that he was in danger. Somebody will ask that was he under imminent danger? Because, for instance, to be under imminent danger there must be a gun pointed at you. But you are aware and have been told that Joseph Kony has special powers, which enables him to monitor you even if he was not physically there. It was also the case that he would have human intelligence around you. So if you don’t do what you are told to do, either you would be shot there and then or you would come back, and Kony would say I sent you to do this and you didn’t do it and he kills you. The question is did Dominic Ongwen believe that the spirit of Kony was always hovering around him? Once you answer it in the affirmative then you are nearer to a conclusion that in that case the man was under duress for whatever he did
LO: What is the probability of Ongwen’s acquittal in your opinion?
KO: The way we are handling the case, people will be surprised. Ongwen would easily be acquitted if the court really looks at the argument we are stating. First of all, most of the charges were defective for duplication. They were much duplicated in a sense that one charge is repeated many times. For example, there is a case of forced marriage because the man obtained exclusive conjugal rights over certain women, and they performed domestic chores, which are all attributed to wives. But the same offense is sexual slavery. They have also charged sexual slavery and rape separately. All these are acts which are the same in a way.
In the case of forced marriage, we are saying there could never have been forced marriage because there was no marriage according to the Acholi and Lango custom. According to the Acholi and Lango customs, there are ways that we construct marriages. The two must agree to marry one another and after the family gets involved and the groom visits the brides’ family in person and gifts are exchanged. That is what is called marriage. In this case, in the bush, was it possible to marry? Was the girl having a father there? Was the boy having his parent there to visit and construct marriage? We think there was no marriage. So if there was no marriage, you cannot say there was forced marriage. Of course some of our arguments are very interesting … they are first time arguments because we want to create jurisprudence because there are some aspects that have been ignored by the ICC.
LO: Do you haveany final thoughts about Ongwen’s case?
KA: Ongwen’s case is very peculiar. Ongwen could have been anybody’s child. He did not want to go to the bush. On his way to school, he was captured. I want the people of northern Uganda to prepare to receive him in case he is acquitted or in case he is sentenced, and he serves his sentence and comes back because he did not intend to do what he finally did.
Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan since 2006. He is also the Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.