Defense Psychiatrist Says Ongwen Did Not Fake Mental Illness

A psychiatrist told the International Criminal Court (ICC) that Dominic Ongwen had two types of mental illness, and he did not pretend to have a mental illness during multiple interviews with defense psychiatrists.

Dickens Akena told the court on Monday last week that he and Emilio Ovuga concluded Ongwen had post-traumatic stress disorder and dissociative disorders during the 15 to 18 interviews they had with him. Akena said during those interviews they did test to see whether Ongwen was “malingering,” the term psychiatrists use for someone who is pretending to have a mental illness.

Akena is a senior lecturer in psychiatry at Makerere University. He was the first of two defense psychiatrists who testified last week in the trial of Ongwen, a former Lord’s Resistance Army (LRA) commander. The testimony of the two defense psychiatrists is meant to be evidence in support of a mental disease or defect defense that Ongwen’s legal team is presenting. This defense is provided for in Article 31 of the ICC’s founding law, the Rome Statute.

Ongwen’s lawyers are arguing he cannot be held responsible for the crimes he has been charged with because he had a mental disease or defect during the period he is alleged to have committed the crimes. Ongwen has been charged with 70 counts of war crimes and crimes against humanity. He is alleged to have committed these crimes in northern Uganda as an LRA commander between July 2002 and December 2005. During Akena’s testimony, this time was usually referred to as the charged period. Ongwen has pleaded not guilty to all counts.

Akena was the first witness to testify since the last hearing, which was held on October 31. Beth Lyons, one of Ongwen’s lawyers, questioned Akena. One issue she asked him about was malingering. Lyons asked him about the issue because a prosecution psychiatrist, Gillian Clare Mezey, had stated in her report on Ongwen’s mental health that in her opinion, Ongwen was malingering.

In her on March 20, 2018 testimony Mezey said it was her conclusion that Ongwen did not have a mental illness during the period he is alleged to have committed war crimes and crimes against humanity.

Akena told the court on November 18 that one of the reasons people on trial would pretend to have a mental illness is if it would lead to them staying out of prison.

“Somewhere in our interaction with the client [Ongwen] the client was so disturbed and told us something like, “I also want to be normal like you people. I don’t understand why these things are disturbing me.” Most people who are malingering would not say that. They would insist they are about to die or something like that,” said Akena.

He said people who were pretending to have a mental illness would, “want to have the symptoms. This client [Ongwen] does not want to have the symptoms.”

“Did you consider the possibility of malingering?” asked Lyons.

“Absolutely. And usually we must ask this question to everybody you see, ‘What do you think this interaction [session with a psychiatrist] is going to help? What do you want?’ People who are malingering do not want to get better. People who are not malingering want to get better,” answered Akena.

“Again, malingering is dangerous. It is actually extremely dangerous … for you the professional who is looking for this information … The onus is on the mental health expert to ensure that the client is not malingering. It’s instinctive to ensure that the person actually has a mental illness,” said Akena.

He said it would be unethical for a psychiatrist not to determine whether the person consulting them had a mental illness.

Akena told the court he and Ovuga talked to Ongwen face-to-face between 15 and 18 times. He said each session lasted between two to three hours. He said at one time they saw Ongwen four times a week. Akena said they had to first establish a rapport with Ongwen before Ongwen began talking about his mental health. He said the sessions were usually conducted in Acholi, which he and Ongwen speak, but Akena said at some point Ongwen got comfortable enough to even speak in English.

Lyons asked Akena what he thought of the fact that none of three prosecution mental health experts talked to Ongwen before testifying about what Ongwen’s mental health was between 2002 and 2005. The prosecution mental health experts requested to interview Ongwen, but Ongwen declined to see them.

Before they testified between March and April 2018, the prosecution mental health experts were provided with excerpts of testimony prosecution witnesses gave about Ongwen. They were also given reports Akena and Ovuga had written, as well as a report a court-appointed psychiatrist wrote about Ongwen’s mental health in late 2016 to early 2017.

“I feel sorry for my colleagues because the practice of mental health is that you need to interact with the patient,” said Akena. He said the material they were given was useful, but he would find it difficult to make any conclusions on Ongwen’s mental health.

“I think it is difficult to work backwards from a text that you have and find out whether that was correct or not,” said Akena, referring to the conclusions they reached that Ongwen did not have a mental disease or defect during the period he has been charged with committing crimes.

“The ideal thing for them would have been to have simply observed our interaction with him,” said Akena, referring to the possibility of the prosecution mental health experts watching videos of the interviews he and Ovuga conducted.

“I think it was a difficult spot them. I wouldn’t have liked to have been in such a situation,” said Akena.

Another line of questioning Lyons followed dealt with how Akena and Ovuga were able to determine that Ongwen had post-traumatic stress disorder and dissociative disorders during the charge period of 2002 and 2005. Akena said it was based on what Ongwen told them about past incidents and past symptoms in response to questions they asked.

“‘Have you ever felt sad in life?’ … Then the person says, ‘Yes.’ ‘Did this take so much time? Was it there every day?’ They say, ‘Yes.’ Then you go back, you say, ‘In the course of your life or over your lifetime, how many times have you distinctly felt like this?’ And then the person starts to tell you, ‘Oh in 1990 I had this. In 2001, I had this.’ Sometimes the memory is quite fuzzy, and the information that you get is difficult to allocate to a point of time,” said Akena to illustrate the kinds of questions they asked and answers they got from Ongwen.

Lyons also asked Akena about Ongwen’s attempts to escape the LRA some time after he was abducted. Akena said Ongwen told him and Ovuga he attempted to escape four or five times some time after he was abducted. Akena told the court about one attempt Ongwen made following which he had what Akena described as a “gruesome” experience.

He said about one month after Ongwen had been abducted Ongwen and three other newly abducted children escaped. Akena said Ongwen told him the four of them walked from morning to evening and they found themselves back at the camp they had escaped. Akena said Ongwen told them they found the people they had escaped from waiting for them because “the spirit had told them that they had escaped.” Akena said these LRA members had put machetes to fire as they waited for Ongwen and the other three escapees to return.

“And he [Ongwen] was actually forced to skin one of those guys alive, the person was tied up, and they skinned this person, removed his gut, and put it up on trees … and they [the LRA members] said those were electricity wires. And he [Ongwen] said he wouldn’t eat meat for two to three months,” said Akena.

Senior trial lawyer Benjamin Gumpert cross-examined Akena on behalf of the prosecution on November 19.

A transcript of the November 18 hearing can be found here.

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