Senior Prosecutor Comes Under Criticism for Calling Defense Witness’s Testimony “Nonsense”

A defense lawyer and a senior psychiatrist strongly criticized a senior prosecutor after he described some of the psychiatrist’s testimony as “nonsense” during the trial of Dominic Ongwen at the International Criminal Court (ICC).

This happened when Benjamin Gumpert, the lead prosecutor in the trial of Ongwen, was cross-examining Emilio Ovuga, a defense psychiatrist, on November 22, 2019.

Gumpert questioned whether Ongwen could easily hide one of two personalities he had described to defense psychiatrists. When Ovuga responded it was possible, that is when Gumpert suggested that was “nonsense.” Presiding Judge Bertram Schmitt called a break after which he, Ongwen’s defense lawyer Beth Lyons, and Ovuga spoke about Gumpert’s comment. Gumpert then apologized for what he had said.

Ovuga was the second defense psychiatrist to testify in the trial of Ongwen. He testified about reports he and Dickens Akena, the other defense psychiatrist, wrote based on their interviews with Ongwen. Ovuga’s testimony on November 21 and 22 was part of the defense’s case that Ongwen had a mental disease or defect during the period he is alleged to have committed crimes in northern Uganda.

Ongwen has been charged with 70 counts of war crimes and crimes against humanity he is alleged to have committed between July 2002 and December 2005. He is alleged to have committed these crimes while he was a commander with the Lord’s Resistance Army (LRA). Ongwen has pleaded not guilty to all counts.

On November 22, Gumpert questioned Ovuga about his testimony the previous day during which he told the court Ongwen had described to him and Akena two personalities he had. Gumpert read to Ovuga excerpts of the testimony of two defense witnesses. Gumpert said these witnesses did not notice anything wrong with Ongwen.

Gumpert said these witnesses said this, yet Ongwen had told the defense psychiatrists that sometimes a different personality took over his body as many as three times a week. Ovuga said the excerpts Gumpert read did not specify the time the witnesses interacted with Ongwen.

“The problem though is multiple identity, or any form of dissociation, does not occur all the time, every day. You might wish to know or note that particularly during period when Mr. Ongwen either was asked to go to the battlefield or he was under stress, that was when he would dissociate,” said Ovuga.

Gumpert then read excerpts of the testimony of some prosecution witnesses who described nothing strange about Ongwen or said he was nice and caring.

“These are the people who were fighting with him. These are the people who were in combat situation. They would notice if he was dissociating when they are going into battle, wouldn’t they?” asked Gumpert.

“Let us remember that these witnesses were lay people who under normal circumstances or domestic life would not notice what was wrong with their colleague … Even amongst doctors those who have not had the opportunity … would not readily recognise that someone is dissociating. So, let us interpret these passages read to me with caution,” said Ovuga.

Gumpert persisted with this line of questioning.

“If you have two distinct personalities … and you are alternating between those personalities, ordinary people, even lawyers, people who work in other fields, are going to notice?” asked Gumpert.

“It is not common sense, and common sense does not apply to everybody. I maintain that people who do not suffer from psychotic disorders cope with their disability to the extent that those around will not notice that there is something wrong. In most cases they will not notice,” replied Ovuga.

“Dominic A will be able to disguise Dominic B?” asked Gumpert.

“Yes,” answered Ovuga.

“Professor, I suggest that is nonsense,” said Gumpert.

At this point Judge Schmitt said the court would take a coffee break. After the break, Lyons stood to speak on behalf of the defense.

She said Gumpert’s characterization of Ovuga’s answer was “disrespectful and patronizing.”

“The prosecution was simply out of line to make this characterization,” said Lyons.

Judge Schmitt said that because the issues the court was dealing with were “serious” there was bound to be tensions.

“It is absolutely normal that you get a little bit carried away,” said Judge Schmitt.

Ovuga spoke after the judge and said he came to court as a witness and not as a suspect.

“We should discuss as adults. Adults have different views. Adults have to learn to respect each other views … I am willing to cooperate, but I am not willing to have my answers to be rubbished as nonsense,” said Ovuga.

After Ovuga spoke, Gumpert also addressed the court.

“I apologize. I was out of order,” said Gumpert.

When Ovuga began his testimony on November 21, one of the subjects Lyons asked him about was complex post-traumatic stress disorder (PTSD). This is what he and Akena had diagnosed Ongwen with.

Ovuga explained complex PSTD included someone having psychosis, personality derangement, dissociations, and alcohol and drug addictions. He said it was different from “straightforward PTSD,” and it was not part of standard diagnosis most psychiatrists used. He said he agreed with Gillian Clare Mezey, one of the prosecution psychiatrists who testified on March  19, 2018  and on March 20, 2018, that complex PTSD was not formally recognized as a standard diagnosis.

“Psychiatry is one of the disciplines of medicine which is full of controversy. Theories are coming up every now and then. Every theorist presents their idea as the ideal idea to replace idea B,” Ovuga said.

Lyons also asked him about his diagnosis that Ongwen had a dissociative identity disorder with Ongwen experiencing two personalities.

“Can you talk about whether the existence of these two personalities? Did they have any effect on his ability to tell right or wrong, or did they have any effect on his ability to control his conduct?” asked Lyons.

“The two personalities existed way before 2002, and they were active during the period 2002 to 2005. What he described to us was that one personality was the cheerful, happy, friendly, sociable Mr. Dominic. The other one was the hostile, combative, aggressive, Mr. B,” replied Ovuga.

“He asked us, of course we didn’t have any answer, ‘Why do I have two people living side by side? I don’t like Mr. B because when time for battle comes, he is at my back always pushing me forward, no retreating.’ So, whether he liked it or not this Dominic B was the one ruling his life in the battlefield,” said Ovuga.

He said Ongwen told them that when Dominic B took over, he would lose consciousness “until I wake up, and I find myself weak, without energy.”

“So, if we assume that Dominic A is the one being charged or he is being tried, then we are trying the wrong person. The Dominic B is the one who we should be trying. But the reality is the two Dominics are in that body seated there [pointing towards Ongwen],” said Ovuga.

Lyons also asked Ovuga about other mental illnesses he diagnosed Ongwen with. These included dissociative amnesia and symptoms of obsessive-compulsive disorder. Lyons asked Ovuga these questioned based on two reports he co-authored with the other defense psychiatrist, Dickens Akena. These reports were based on interviews Ovuga and Akena conducted with Ongwen between April 2016 and April 2018.

Ovuga and Akena also wrote two other reports, but these focused on Ongwen’s mental healthcare needs at the ICC detention center. All four reports were admitted as evidence under Rule 68(3) of the ICC Rules of Procedure and Evidence. This rule requires the author of the report identify it and not object to the report becoming part of the evidence in a trial. The rule also requires the author of the report be present in court to answer questions from lawyers and judges. Ovuga fulfilled all these requirements, as did his colleague Akena when he testified on November 18 and 19, 2019.

At the beginning of his testimony on November 21 Ovuga told the court that when the defense approached him and asked him to be their mental health expert, he declined. He said he did not see how he could be an effective psychiatrist when he could not speak Acholi, the language that Ongwen understood. He said he also declined to be a mental health expert for the defense because of what the LRA had done to his family.

Ovuga told the court he suggested a number of Acholi-speaking psychiatrists to the defense lawyers who had approached him, and they approved of Akena. He said later during that discussion he was able to set aside what the LRA did to his family and accept to be a defense mental health expert.

“We are all human beings. We all have hard times, hard feelings and I, as a medical practitioner, swore to help even my enemies when I can and here I would like the chamber to accept my underlining the fact, even one’s enemies or even my enemies, I have to attend to them without prejudice, without hard feelings in order to give relief to them, in order to prevent them from dying. Otherwise I wasn’t going to accept,” being a defense psychiatrist, said Ovuga.

Ovuga practiced and taught psychiatry for 36 years. He taught at Makerere University and then Gulu University from where he retired in August 2017. He said he also stopped practicing as psychiatrist in August 2017.  Ovuga told the court he obtained his first degree in 1981 and later earned a master’s degree and PhD from Karolinska Institute in Sweden.

He concluded his testimony on November 22. Roland Weierstall-Pust, the prosecution rebuttal witness, testified next on November 25.

Transcripts of Ovuga’s testimony are available here for the November 21 hearing and here for the November 22 hearing.

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