On Monday, October 21, representatives from the International Criminal Court (ICC) Office of the Prosecutor (OTP) revealed that Dominic Ongwen’s trial is likely to end next year, with the presentation of evidence to be concluded by December this year. Dahirou Santa-Anna, the international cooperation advisor in the OTP, and Beti Hohler, an associate trial lawyer with the prosecution, made the revelations while speaking at an information session in Gulu, northern Uganda
The ICC Field Outreach Office in Uganda organized the information session in partnership with the OTP. Approximately 45 people attended the meeting, including religious leaders, traditional leaders, civil society representatives, and other members of the public.
Santa-Anna noted that the prosecution had presented testimonies of 116 witnesses. He also said that the defense initially indicated that they would present 72 witnesses, but it has since reduced their witness list to 69 individuals. Hohler told participants to expect the presentation of evidence to close by December 2019 and closing remarks to be made in January or February 2020. After that, the judges will have a period of ten months to evaluate the evidence and write a decision, which she said would be made public.
Santa-Anna and Hohler both emphasized Ongwen’s liability in leading attacks and refuted the defense claim that Ongwen failed to escape the LRA due to duress. Additionally, they questioned the defense claim that Ongwen was mentally ill.
According to Santa-Anna, the defense claimed that most people could not escape from the LRA due to spiritualism, however, two of Kony’s wives were able escape. He also noted that the prosecution had presented evidence to prove Ongwen’s participation in the attacks on the four internally displaced persons (IDP) camps of Lukodi, Pajule, Odek, and Abok, but some defense witnesses had testified to the contrary. He explained the court had received conflicting testimony about the Pajule attack as some defense witnesses said Ongwen was not present in Pajule.
Hohler noted that the defense was claiming that Ongwen was mentally ill during his time in the LRA, but the prosecution’s three mental health experts disagreed. In the prosecution’s opinion, Ongwen did not suffer any mental health defect that could have prevented him from distinguishing right from wrong. She revealed that two of the last defense witnesses would be mental health experts who would testify on Ongwen’s mental health. After the completion of defense phase, the prosecution would get another opportunity to respond by calling a psychiatrist.
“Ongwen was in control of his action and did not suffer any mental defect during the said period. The defense claims of duress have not been proven because it entails that the person in question was under threat of imminent death, which the prosecution have provided evidence to prove that Ongwen was not under such duress. The prosecution thinks he had autonomy at his rank, but he decided not to escape. Ultimately, it is for the judges to decide,” Hohler said.
In the question and answer session that followed, participants interacted with Santa-Anna and Hohler and asked questions relating to the information revealed.
Participants expressed concern about the validity of witness testimonies and questions on spiritualism.
“My major concern is about witness testimonies,” said Sheikh Musa Khelil, a religious leader in Gulu. “Defense witnesses testified that Ongwen was not there [in the case locations] while the prosecution witnesses are saying he was there. This sheds suspicion on the truthfulness of the witnesses. I think judgment should be based on true evidence not suspicion.”
“Witnesses have testified a lot about spiritualism in the trial. What effect do you think it will have on the judges,” asked an unidentified participant.
In response, Santa-Anna noted, “The prosecution has to provide evidence that they believe is true and defense has a role to provide the other side of the story. Prosecution has been gathering evidence from all categories of witnesses. The measure of proof is beyond doubt, and it is for the judges to determine that this evidence is weak or contradictory.”
Participants also asked questions related to the role of the Ugandan government and the Uganda People’s Defense Forces (UPDF)
“How sure are you that the government of Uganda will not concoct evidence? This is because they are the ones who referred the case to the ICC. I am curious to know what kind of testimonies were given by the UPDF,” asked Isaac, a civil society representative in Gulu.
“If the trial uncovers a heavy government role, will the ICC be interested in investigating the government,” asked another unidentified participant.
“Many issues have been linked to the UPDF, but no substantive evidence is available to open investigations,” explained Santa-Anna. “The ICC only prosecutes the most responsible persons but not the whole institution.”
Participants further expressed concern over the criteria for the selection of witnesses.
“How did they [prosecution and defense] select witnesses like Kony’s wives? How did you know they were Kony’s wives? Or were they simply people picked from around here, and they pretended that they were Kony’s women because there were no marriages held in the bush,” said Sheikh Musa.
In response, Santa-Anna noted that most of the women had been forced to become wives:
“I do not know how the defense picked their witnesses. You should ask them. About the wives, we do not consider them wives but forced wives because they didn’t have the will to refuse, which is contrary to what is done in Acholi. One woman told court ‘we didn’t have a choice.’”
Participants also expressed opinions on the mental status of Ongwen.
“When we visited the LRA for peace talks, Ongwen was the first man Kony sent to welcome us, and my eyes never sighted any signs of madness in him during the peace talks in Juba,” said Sheikh Musa.
“Is Ongwen still having a mental defect even now?” asked another participant.
In response, Santa-Anna noted, “The OTP believes Ongwen has never suffered a mental defect big enough to disable him to control his actions, however, we are interested in his mental state between 2002 and 2005. This does not mean he has no post-traumatic stress disorder. The issue is, what is the level?”
During the trial, both the prosecution and the defense called witnesses to testify about the LRA’s actions in Teso. The Teso sub-region is located in northern Uganda, but the alleged crimes there do not make up any of the charges against Ongwen. Participants, therefore, wanted to know why these witnesses were called.
“What do testimonies about Teso have to do in the trial,” asked Andrew Simbo, a civil society representative in Gulu.
“Testimonies about Teso don’t mean anything because there is no charge from there [Teso],” responded Santa-Anna. “However, it is connected to the northern Uganda [conflict].”
Another participant asked about the outstanding arrest warrant against Vincent Otti.
“Has Otti’s death been confirmed and the arrest warrant withdrawn?” asked one participant.
“Otti is presumed dead according to what witnesses said, but the ICC has not confirmed it. Okot Odhiambo’s death was confirmed because DNA tests were conducted, however, the ICC is still looking for information to find the body of Otti,” responded Santa-Anna.
Stella a former LRA abductee asked, “If Ongwen is convicted and the community is compensated, they will continue believing that Ongwen committed the crimes. How then will he reintegrate into the community?What kind of legal framework shall be put in place to guarantee non-reoccurrence?”
“If he is found guilty, he will have to pay, but we all understand he is not able to do that. That is why the ICC created the Trust Fund for Victims. It is an autonomous body, which can still act even if the accused is acquitted,” responded Santa-Anna. “Regarding guarantees of non-reoccurrence, it is the role of local stakeholders to see what solution is appropriate.”
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.