By Tom Maliti, IJ Monitor
Two members of Dominic Ongwen’s defense team – his lead lawyer Krispus Ayena Odongo and Thomas Obhof – sat down with the International Justice Monitor on March 28 to talk about the defense case. This was about two weeks before the prosecution, on April 13, formally closed their case against Ongwen at the International Criminal Court. In this second installment of a four-part interview Odongo and Obhof talk about the day Ongwen disrupted court proceedings in March and the alibi defense they intend to present. The first part is available here.
International Justice Monitor (IJM): On Monday, March 19, Dominic Ongwen disrupted the court hearing and since then several times your team has raised the issue of his health. How is he faring?
Krispus Odongo: I think there was a, what I would call, a slight mental diversion. So to speak, I think he was caught off guard by the style of presentation of one witness who I would say, may, to some extent had been rather insensitive about the feelings of Dominic Ongwen. Although, I mean you have no duty to be overzealous in cultural sensitivities, but there are certain assertions that are rather intriguing, and I think that’s exactly what happened on that day. But he has pulled through. We talked to him. He has calmed down, and I think he’s now okay. Because I think his problem was that somebody, according to him, not according to us, but according to him, he thought this was somebody who was culturally least qualified to make certain presumptions about his conditions. And as a lay man he did not know that, you know, experts are asked for their opinion as they see.
So, we’ve talked to him over it, and we told him that you see … court proceedings is like a battlefront where there is an attacking force and then there is, in his case, he has now got to prepare his forces. If they come with missiles and air attack, he should prepare those anti-missiles and the anti-missiles are those of us who are in his team, and we are going to handle the situations as they come. And we told him it would be a very sad thing if he kept on doing that because the presumption in our mind is that he wants to take over and do his own thing. If he trusts that we can do it, we should do it, and he has cooled down. I think I can speak for my team that to a greater extent he has cooled down. And remember this is an incident which has reoccurred only after about, is it two years?
Thomas Obhof: Well, about a year.
Odongo: About a year, yeah. So, it’s not something that we are likely to experience very often. Perhaps we have put it behind us already.
IJM: In terms of the disruption, what happened because for the public all we heard was the judges making their decision? But we don’t know whether he shouted in court or something else happened.
Obhof: For my part…I believe it’s not in public.
Odongo: There are parts which were not public. He erupted like, you know, a volcano, you know … he stood up and he was expressing his displeasure with the way the witness was handling the question put to [her]. Like I said, [s]he was being culturally insensitive, and she was delving in an area, according to her witness, she was least qualified to delve into. Like my colleague [Obhof] has said, I mean, you are asked to put certain things within the context of cultures, and the case is predicated on a specific culture. You have neither experienced the culture, studied the culture nor even sought expert opinion from those who may know it. Then how do you come and (a) in brazen [manner] and talk about it. So, like my colleague said, it was vexing, and it brought our client to a boiling point and before we knew it, because you know he sits behind [us], we heard an eruption. So, we intervened, so that’s it.
And you see one thing that some people, I talk about insensitivity again. Whatever people may want to say, this is not a very normal situation we’re dealing with. This is a boy who is actually detached from the ordinary world we live in. Because [he was] abducted at the age of nine. He spent about 26 years in the bush. In the bush that was actually virtual imprisonment. He was actually in prison because he did not to have the freedom to do as he willed. And then he surrenders and then he is again straight into the atmosphere of a detention center, courtroom, and so on and so forth. So, this is a person who even from a layman’s point of view must be handled with care, with tender care. So, these are the problems we have to grapple with. But he seems to have reconciled with his problems. But, like I said, the situation is not very normal.
IJM: Going now to defense strategy. Why did you decide not to make an opening statement at the start of the trial?
Odongo: That was part of our strategy. I think our position is that we had to spread our net as wide as possible before we pull it out of the sea to see whether there’s fish. Now we know, for instance, where the case is going. We have now heard and known the strong points of the prosecution. We now understand their case strategy and theory. We can now talk about our own. Because, you know, for us we don’t have to, in the ordinary common law position, our client, I think even in this court, our client is entitled to even just keep quiet. So rather than keep quiet since we’re here, and we’ve heard from them we allow them to talk as much as they would want to. And then you come out and say, “By the way, this is how we are going to proceed.”
Because that opening statement is a clarion call about how, about the areas you are going to emphasize, about the parameters of the case and the way you’re going to handle them. How you’re going to counter certain positions or propositions that have been put by the prosecution. And we considered that it would be to rash to, immediately after they’ve made their statement and they’ve not led any evidence, to make your statement because you do not know where they’re going. So to speak, it was to avoid surprises emerging out of the prosecution leading their evidence.
Obhof: I would say even a perfect example was on August 9th, 2016, we gave noticeto the prosecution telling them we have evidence to show that Dominic did not participate in Pajule. We told them where Dominic was at, we told them the witness who stated that, and what Dominic was doing. Now if on December 8th and 9th we would have given an opening statement it wouldn’t have had as much emphasis.
Odongo: That’s right.
Obhof: But now we’re giving our opening statement, and we’ll say we’ll bring a witness. We’ll talk about what Dominic really was doing at Pajule. And the fact that three prosecution witnesses, two of whom fought there [in Pajule], agreed with him. And that’s, when you look at other things, witness, I think it was [prosecution witness] 249 said that he saw Dominic waving a stick and then a few witnesses later I believe it was [prosecution witness] 269 said no that was Raska Lukwiya. And 249 had admitted to being intoxicated. So, you have a drunk person saying he saw somebody waving a stick that looked like Dominic and the guy said the person walked perfectly. And then a sober person who said I know who Raska Lukwiya is, I stayed with him later, and he was a person waving a stick at the trading center. So, it’s a lot, where during the entire examinations of the witness we’ve drawn a lot more things out that will actually support our case and make Krispus’s opening statement even much better.
IJM: It’s interesting you talked about the alibi for the attack on Pajule because that was one of the questions I was going to ask, and I was even going to ask whether you could give some details.
Obhof: The person who gave Dominic the alibi were [prosecution witness] 144, P-45. And P-85 said that he saw Dominic before leaving because he wasn’t involved in Pajule but saw him right before that and he was in no physical condition to do anything. P-85 said that when people were in sick bay the one thing they want to do was get out of sick bay. It’s very depressing, you didn’t get to see many people, and he said Dominic would have left sick bay soon as possible. Which P-231 said Dominic left towards the end of September 2003 even though he wasn’t able to walk properly. You’ve seen Dominic walk. He still can’t walk correctly. He still walks with a severe limp. He has a hole in his leg the size of a full bulb of garlic, you could take … go to the store and buy a bulb of garlic and put it in his thigh, that’s how massive the hole is. I put my finger in there and I, really honest to God, think I touched his femur.
So, there are with Pajule, it came out to be, we would joke around, it’s kind of like a running joke, we told you prosecution, you didn’t listen. One of their key witnesses, Rwot Oywak, gave conflicting stories in 2005 in the statement and then 2015 when he did another statement. If I’m not mistaken I think every person who has come in to testify has stated that Rwot Oywak was not treated the way that he states he was treated while he was taken or, actually, I should say not even taken but walked to see [the then LRA deputy leader] Otti Vincent. And defense witnesses on Pajule say the same, say he [Rwot Oywak] was not injured … he was wearing clothes. He was being talked to when people were talking to him until they actually brought him to…
Odongo: He [Rwot Oywak] was even allowed to sit at the high table. More or less sit with the rest of the abductees when he went to the bush and so many other little details that we’ve now discovered. So, you know you want to point out that that’s not a reliable witness if you were to, and you talked about our defense strategy, we may as well just give you the tip of the iceberg. You see our defense, and that is why we were, you could see that I was struggling so hard to get something out of this witness. Our defense is gravitating around the question of duress. We are talking about the influence of indoctrination. Duress is about imminence, of course. You must be apprehending an imminent danger to your own life or to the lives of those you are responsible for. And the danger, the imminent danger is equal or even bigger than the harm that your conduct might create.
This article was first published on the International Justice Monitor.