Africa-Press – Uganda. The defence team of former Lord’s Resistance Army (LRA) commander Dominic Ongwen has filed an appeal challenging his conviction by the International Criminal Court.
On February 4, Ongwen was convicted of 61 crimes, including murder, rape, torture, and forced marriage, committed in northern Uganda in 2003 and 2004.
Subsequently, the Hague-based court on May 6 sentenced the former child soldier to 25 years in jail for war crimes, and crimes against humanity committed in northern Uganda.
Ongwen, 45, is the first Ugandan and former LRA commander to be tried, convicted and sentenced by the court.Mr Chrispus Ayena Odongo, the lead defence counsel, told Daily Monitor this week that the team is set for the appeal’s briefing next month.
“We already filed the conviction appeal, and we are now going to file our brief and arguments on July 21, we are also appealing against his sentencing. So, the appeal is now cascaded into two, one is against his conviction and second against his sentencing,” Mr Ayena said.
Why appeal?
He said they were able to raise some critical and technical legal components of the trial, which they think were messed up.“Perhaps the case will collapse, altogether if the court of appeal agrees with us, meaning the conviction collapses too and the sentencing becomes mute and inconsequential,” Mr Ayena said.
Upon filing the brief by the defence team, the court is expected to fix a date for oral argument by the former.Mr Ayena said they were also preparing grounds to appeal against the sentencing through the same procedures.
“We are preparing to file an appeal for sentencing in the next two weeks for which we already filed a notice of appeal on the 4th last month,” he said.
Judges Bertram Schmitt and Péter Kovács gave the 25-year sentence while their counterpart Raul Cano Pangalangan gave a dissenting opinion that would have sentenced Mr Ongwen to 30 years imprisonment.
The Chamber imposed individual sentences for each crime, taking the mitigating circumstance of Ongwen’s childhood and abduction by the LRA into due account.
The Trial Chamber analysed one-by-one the gravity of each of the 61 crimes for which Ongwen was convicted, finding several aggravating circumstances applicable to some or even most crimes, the Court said.
Aggravating circumstances included particular cruelty, the multiplicity of victims, the victims being particularly defenceless, and discrimination on political grounds and discrimination against women, a press release from the ICC said.
Although the 1,077-paged court judgment is now being seen by victims as pivotal in the region’s healing process from the physical and psychological wounds inflicted by the war, Ongwen’s lawyers claim the ruling is ‘utterly embarrassing’ and worth an appeal.
Mr Ayena said the court did not only fail to evaluate evidence of the defence — including proof that Ongwen was “a prisoner” in an LRA camp during the attacks, but reluctantly declined to admit that there were no forced marriage in captivity but cohabitation.
“The judges should have admitted that what happened in the bush was not marriage but cohabitation. Court didn’t prove that there were ceremonies through which two people went during which their parents exchanged gifts, to validate a marriage traditionally,” he said.
Mr Ayena said much as Ongwen was entitled to a translation of all the documents into the Acholi language, especially those of all the charges against him as well as those of procedures of confirmation of charges, the court ignored it.
“Ongwen can only fully and meaningfully participate in his appeal with an Acholi translation of the judgment because he is a special needs person with mental disabilities, and requires adequate time and resources to communicate with and instruct his counsel,” he said.
Mr Ayena said he was shocked that at some point the judges argued that since his counsel was a Luo speaker, he would translate for him “Am I a translator? I am not. In any case, I would be influencing him if I translated for him, this violated his right to a fair trial.”
Mr Ayena argues that the evaluation of the evidence was badly handled and that several witnesses openly lied to the court and the judges deliberately ignored the defence over that.
Faulted
The defence team also faults the court for failing to admit Ongwen’s defence of alibi when the accused in many instances claimed he was absent from the scene of the alleged crimes.
Defence of alibi loosely translated to ‘I was not there, I was not at the scene of the crime at the time you allege that I participated in the crime.’
The law on defence of alibi is that once an accused raises it, the burden of proof shifts to the prosecution to bring the accused and fix him at the scene of the crime, meaning it is the prosecution to disprove the accused.
“In criminal law world over, even in the Rome Statute under Article 67, 1(i), the burden applies. The prosecution must prove each element of the crime beyond a reasonable doubt, which is the same for an affirmative defence for mental disease or duress,” Mr Ayena said.
He said the LRA was not a formal army but was predicated on crude African spiritualism, which affected Ongwen’s mental state so severely.
But the judges, during the ruling, rejected the defence’s arguments that Ongwen was a victim, as he had been abducted by the LRA at the age of about nine and suffered psychological damage as a result.
“The chamber did not find evidence for the claim by the defence that he suffered from any mental disease or that he committed the crimes under duress,” Judge Bertram Schmitt said.
Sentence procedure
During the sentencing procedure, presiding judge Bertram Schmitt said while handing down the sentence, the court gave weight to certain mitigating circumstances of Ongwen’s childhood, his abduction by the LRA at a very young age and early stay with the rebel group. “The Chamber was confronted in the present case with a unique situation. It is confronted with a perpetrator who willfully and lucidly brought tremendous suffering upon his victims. However, it is also confronted with a perpetrator who had previously endured extreme suffering himself at the hands of the group of which he later became a prominent member and leader,” he said.
