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Defense and Prosecution Spar over Witnesses, then Compromise

Journalists For Justice / 30 January 2018

 By Tom Maliti

The lead prosecutor in the trial of a former Ugandan rebel commander, Dominic Ongwen, has agreed not to contest the right of the defense to object in future submissions to the testimony of prosecution witnesses who do not fall strictly within the parameters of the charges against Ongwen.

Senior trial lawyer Benjamin Gumpert told the court on Thursday he made the commitment so that the defense did not have to argue the issue each time the prosecution brought a witness whose testimony included evidence outside the scope of the charges against Ongwen.

Gumpert made the commitment after Ongwen’s lead lawyer, Krispus Ayena Odongo, argued against Witness P-372 testifying. Thursday was the second time last week the defense objected to the testimony of a prosecution witness. The first time was on Monday, January 22, when Witness P-200 began testifying.

Each time the defense argued that the witnesses were going to testify about events outside the geographical area or temporal scope of the charges. And each time the prosecution responded by arguing that the testimony of witnesses would address the context of the charges.

Ongwen, a former commander of the Lord’s Resistance Army (LRA), has been charged for his alleged role in attacks on four camps for internally displaced people (IDPs) in northern Uganda between July 2002 and December 2005. The camps are Abok, Lukodi, Odek, and Pajule.

He has also been charged for his alleged role in sex crimes and conscripting child soldiers between July 2002 and December 2005. In all, Ongwen is facing 70 counts of war crimes and crimes against humanity. He has pleaded not guilty to all counts.

During his testimony on Thursday and Friday, Witness P-372 said he was abducted in 1995, when he was eight or nine years-old, by a group under the command of Raska Lukwiya. He said that for most of his time in the LRA he was part of a group under the command of Lukwiya, and later a group under the command of then-deputy leader of the LRA, Vincent Otti. He said he spent a few months with a group under the command of Ongwen.

Witness P-372 testified about the attack on Pajule and Odek and also attacks on Labuor Omor, also in northern Uganda, and in Teso, a region in eastern Uganda. He also told the court about the eight years he spent in Sudan between 1995 and 2003.

Before Witness P-372 began his testimony on Thursday, Odongo rose to object to his testifying. Odongo said he was rising to make the defense’s “standing objection.”

“The witness coming next was only abducted in 1995. He spent most of his time in the Sudan and only came back in 2003. He talks about having been abducted with his sister. It is our objection that this should be taken into account,” argued Odongo.

Prosecutor Colin Black argued that part of the testimony of Witness P-372 would address the context of the charges against Ongwen but he would also be testifying about the attacks on Pajule and Odek, which fell within the charges against Ongwen.

Presiding Judge Bertram Schmitt said Trial Chamber IX would allow the testimony of Witness P-372 because it has other witnesses whose testimony did not fall strictly within the charges against Ongwen.

“We have ruled we can also go beyond the confirmed charges for contextual elements, modes of liability and, for example, conscripting child soldiers,” ruled Judge Schmitt. He assured the defense that the chamber was aware of the need to assess all evidence while keeping in the mind the charges.

Once Judge Schmitt made the chamber’s ruling, Gumpert rose to make a proposal. He said he understood the reason the defense felt compelled to make an objection each time a witness was set to testify on areas beyond the charges. He said he knew they were doing this to avoid being “at a disadvantage at some later stage.”

“I wonder if I can put that to bed. The prosecution will not seek to argue that the defense is foreclosed from making such an argument. We won’t make some cute argument that the defense did not make the argument at the appropriate time,” said Gumpert.

He said, however, when the time came the prosecution would strongly argue the merits of the evidence of these witnesses.

“We appreciate the undertaking of my colleague. He himself knows why every time (the defense raises the issue),” responded Charles Taku, one of Ongwen’s lawyers. “This undertaking we take in good faith and appreciate the comment made by colleague,” said Taku.

Judge Schmitt said what Gumpert proposed would make things easier. “We appreciate that Mr. Gumpert has tried to put himself in the position of the defense counsel,” said Judge Schmitt.

During his testimony on Thursday and Friday, Witness P-372 described himself as a foot soldier in the LRA. He said he did not hold any rank during his time with the group. He said his role in the Pajule and Odek attacks was looting food.

He also said that as LRA fighters retreated from Pajule, his role was to guard the rear in case any government soldiers pursued them. He said it was during this retreat that he became separated from his group and ended up following Ongwen’s group.

Witness P-372 said he saw Ongwen before the Pajule attack. He said he later saw Ongwen with the group of fighters who went to attack the barracks in Pajule but he did not see Ongwen at the Pajule IDP camp as he looted. The witness said that around 40 LRA fighters attacked the barracks and about another 40 attacked the camp.

“Do you remember how it (the Pajule attack) was planned? Who sat in the meeting and who finally ordered it?” asked Odongo, who questioned the witness on Friday.

“In regard to the planning I do not know because for me I was selected from the position and we were told we are going to loot in Pajule,” answered Witness P-372. He said where the foot soldiers sat was far away from the commanders so he could not hear anything that was said during that meeting.

“You are just told, ‘Come, we are going to this place,’” said the witness.

Prosecutor Colin Black was first to question Witness P-372 on Thursday. After Black concluded his questioning, Caroline Walter asked Witness P-372 some questions about the harm he suffered while with the LRA. Walter is a lawyer representing one group of victims in the trial.

Witness P-372 said while he was in the LRA he was shot in the leg and also got injured in the chest.

“Could you tell us if you are still suffering from these injuries nowadays?” asked Walter.

“Yes. For instance, the pain on my chest, if I don’t work hard then I don’t feel pain. The injury on my eyes, the injury is still there. The gunshot, I got healed kind of,” replied Witness P-372.

“While you were in the bush (with the LRA) could you benefit from treatment?” asked Walter.

“They (the LRA) don’t have medicine. They don’t have drugs. Apart from dressing your wound, there is nothing else they did,” Witness P-372 answered.

He concluded his testimony on Friday. Witness P-374 is scheduled to testify on Tuesday.

 

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