{UAH} STATEMENT BY THE GOV'T ON DOMINIC ONGWEN CASE AT THE ICC

                                                                                      

                                                                                     

STATEMENT BY THE GOVERNMENT TO THE PUBLIC

 

ON

 

 

THE DOMINIC ONGWEN CASE AT THE INTERNATIONAL CRIMINAL COURT (ICC)

 

Following the surrender of Dominic Ongwen and his transfer to the ICC, there have been various reports and discussions in the press and other media of the matter; including Ongwen's defence at the ICC, whether Ongwen should be granted amnesty or forgiven and the role of Government in the handling of the case at the ICC.

 

This statement is issued to inform the public on the case and to clarify the role of Government in the case before the ICC.

 

BACKGROUND

 

Dominic Ongwen was abducted by the Lord's Resistance Army (LRA) rebels in 1988 at the age of 14 years.

 

He was trained by the LRA and rose through the ranks due to his courage and ruthlessness. He became part of the Lord's Resistance Army (LRA) core command structure, playing a central role in massive killings, abduction of children and other international crimes committed by the LRA in northern Uganda, the Democratic Republic of the Congo (DRC), the then southern Sudan and the Central African Republic (CAR).

 

After the death of Vincent Otti, Dominic Ongwen became LRA Chief of Operations, a position he held until he was put under house arrest in 2012 by Joseph Kony.

 

On 3^rd January, 2015, Dominic Ongwen surrendered himself to the Seleka rebels in Sam Ouandja, CAR.

 

On 5^th January, 2015 the US forces picked Dominic Ongwen from the Seleka rebels and flew him to their base in Obo, CAR.

 

Following talks between the United States, CAR and Uganda, Ongwen was transferred into the custody of the Ugandan Contingent of the African Union Anti- Lord's Resistance Army Task Force.

 

He was transferred to the International Criminal Court (ICC) in The Hague, Netherlands on 17^th January, 2015.

 

THE INTERNATIONAL CRIMINAL COURT (ICC)

 

The ICC was established by the Rome Statute of the International Criminal Court.

The Rome Statute came into force on 1^st July, 2002. There are currently 110 States Parties.

 

Uganda is a State Party to the Rome Statute, having signed the Statute on 17^th March, 1999, ratified it on 14^th June, 2002 and domesticated it in the Internal Criminal Court Act 2010.

 

The Lord's Resistance Army (LRA)

 

The LRA, operating from its bases in the then southern Sudan, committed widespread and systematic attacks against the civilian population of northern Uganda, including the abduction and forcible conscription of an estimated 5,000 children, who were subject to killings, torture, rape, enslavement, and other serious inhumane treatment.

 

The Government of Uganda endeavoured to put an end to these atrocities. These endeavours include the negotiations between the Government and the LRA led by Hon. Betty Bigombe, the Juba Peace Process and the St. Egidio Community who tried to initiate peace talks between the Government and LRA. Despite multiple offers of peaceful settlement and reconciliation, the LRA instead intensified its massive human rights violations, especially from July 2002 onwards.

 

While both willing and able to prosecute the perpetrators, the Ugandan judicial system was unable to investigate, prosecute or secure the arrest of Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen, and Vincent Otti, principally because they operated from bases in the then southern Sudan, beyond the reach of  the Ugandan law.

 

Additionally, the scale and gravity of the LRA crimes were a matter of concern to the international community as a whole and thus required international cooperation and assistance.

 

Referral to the ICC

 

Having exhausted every means of putting an end to this national scourge, and determined to put an end to impunity for perpetrators of war crimes and crimes against humanity, in order to maintain peace and security as well as the well-being of the people of northern Uganda, the Government of Uganda referred the Northern Uganda Situation to the ICC on 16^th December, 2003.

 

The Government requested that investigations focus on the persons most responsible for such crimes, namely LRA members in positions of command and control.

 

Following the referral, Luis Moreno Ocampo, the then Prosecutor of the International Criminal Court, announced the beginning of an official investigation into the Northern Uganda Situation on 29^th July, 2004.

 

The investigations prompted the Prosecutor, Moreno Ocampo to apply to the Pre-Trial Chamber II of the ICC for warrants of arrest for Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen, and Vincent Otti, on 6^th May, 2005. The warrants for all five men were issued under seal on 8^th July 2005. The warrants were unsealed on 13^th October, 2005.

 

The five men are all indicted in the same case. The indictment lists 33 crimes: 21 counts of war crimes and 12 counts of crimes against humanity.

 

The arrest warrant against Dominic Ongwen is for three counts of crimes against humanity (murder; enslavement; inhumane acts of inflicting serious bodily injury and suffering) and four counts of war crimes (murder; cruel treatment of civilians; intentionally directing an attack against a civilian population; pillaging) allegedly committed in 2004 within the context of the situation in Uganda.

 

The proceedings against Raska Lukwiya were terminated in July 2007 following his death on 12^th August, 2006.

 

 

The initial appearance of Dominic Ongwen at the ICC

 

Situation: Uganda- ICC/-02/04-01/05

Case: The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen

The initial appearance of Dominic Ongwen before a single Judge of Pre-Trial Chamber II of the ICC, Judge Ekaterina Trendafilova, occurred on Monday, 26^th January 2015, at 14:00 (The Hague local time).

 

During the initial appearance hearing, the single Judge verified the identity of the suspect and the language in which he is able to follow the proceedings (Acholi). He was informed of the charges against him.

 

Confirmation of Charges

 

The ICC provisionally set August 24, 2015 as the date for confirmation of charges hearing against the former LRA commander, where the ICC will determine whether or not Dominic Ongwen will be tried.

 

WHETHER UGANDA CAN PROSECUTE ONGWEN

 

The International Crimes Division of the High Court

 

The Government of Uganda established the International Crimes Division (ICD) of the High Court which is mandated to try international crimes. However the cross-border commission of the offences committed by Dominic Ongwen and the fact that Uganda had already referred the situation concerning the LRA to the ICC requires that he be tried by the ICC, rather than the High Court.

 

Cross-border crimes

 

The LRA has been accused of wide spread crimes across the region in a conflict corridor traversing the Great Lakes Region.

 

The atrocities committed by the LRA are not only limited to Uganda, but extend to South Sudan, north-eastern Democratic Republic of Congo and the Central African Republic. The atrocities and human rights violations include murder, abduction, child sex slavery, maiming and child recruitment, sexual enslavement and sex and gender based violence all of which are international crimes. It is for this reason that the warrant of arrest for the five LRA indictees was not only served on Uganda but also on the DRC.

 

The cross-border nature of the crimes warrants the prosecution of Dominic Ongwen at the ICC.

 

Different actors

 

Dominic Ongwen's surrender to the Seleka rebels in Sam Ouandja in the Central African Republic and his subsequent transfer to The Hague involved various actors namely, the CAR, the United States Military, the African Union Regional Taskforce and the Uganda Peoples Defence Forces. The multi-faceted effort to appropriately handle the surrender of Ongwen bestowed on the process international clout that requires that the perpetrator be tried by the ICC, in which all the actors would have confidence.

 

Additionally, a decision to take Ongwen to the ICC had been taken by all the countries in which he had been operating and it had been supported by the African Union and the United States of America.

 

Amnesty

The Amnesty Act of Uganda provides for the grant of amnesty for Ugandans involved in acts of war or rebellion against the Government of Uganda. A person granted amnesty shall not be prosecuted or subjected to any form of punishment for participation in the war or rebellion or for any crime committed in the cause of the war or rebellion.

 

Whereas Dominic Ongwen qualifies for amnesty under the Amnesty Act, the constitutionality of amnesty is still under determination by the Supreme Court in the case of Uganda vs Thomas Kwoyelo.

 

Amnesty, however, would only be available to Ongwen in the Ugandan context, subject to the ruling of the Supreme Court and does not prevent his prosecution at the ICC.

 

 

 

Transitional Justice and Traditional Justice

 

The Government is in advanced stages of preparing a Transitional Justice Policy that will facilitate the use of both judicial and non-judicial processes of addressing past human rights violations, so that Uganda and its people can move forward towards sustainable peace and reconciliation.

 

Traditional justice will be formally recognised when the Transitional Justice Policy is approved. It will serve as the initial point of dispute resolution in some cases.

 

Mato oput

 

Traditional justice mechanisms, such as "Culo Kwor" (compensation paid to the bereaved family),"Mato Oput" (drinking the bitter root of the Oput tree),"Kayo Cuk", "Ailuc" and "Tolu Koka" and others as practiced in the communities affected by the conflict in Northern Uganda, were part of the framework for the Agreement on Accountability and Reconciliation that was signed on 29^th June, 2007 by the Government of Uganda and the rebel Lord's Resistance Army (LRA).

 

Article 2 of the Agreement on Accountability and Reconciliation that was signed on 29^th June, 2007 by the Government of Uganda and the rebel LRA, provided for commitment to accountability and reconciliation, where the parties were to promote national legal arrangements consisting of both formal and informal measures to ensure justice and reconciliation.

 

Mato oput may be used or made available for any LRA member that surrenders, provided they are not one of the indictees of the ICC and are not part of the core command structure of the LRA.

 

The system in its original form was not conceptualized as a method for adjudicating over war crimes and crimes against humanity.

 

Argument that Dominic Ongwen be forgiven

The principle of forgiveness for any crime committed presupposes that a trial of the accused has been conducted and the accused has been found guilty by a competent court. It is only after the pronouncement of guilty that the President exercises his prerogative of mercy under the Constitution. Therefore, even if Dominic Ongwen was to be forgiven, he would first have to be tried by a competent court to determine his innocence or guilt in order to qualify for forgiveness.

 

Dominic Ongwen is before the ICC which will determine whether he will be charged for war crimes and crimes against humanity and whether or not he is innocent or guilty.

 

Bearing in mind that the trial is to be conducted by the ICC, the prerogative of mercy which is available to the President under Uganda's Constitution cannot apply at the ICC.

 

THE RESPONSIBILITY OF GOVERNMENT IN THE PROSECUTION OF DOMINIC ONGWEN

 

Cooperation and Assistance

 

The main role of the Government of Uganda and its obligation as a State Party is to co-operate and assist the ICC in order to facilitate the investigation and prosecution of Dominic Ongwen, under the Rome Statute and the International Criminal Court Act, 2010 in particular to provide assistance that the ICC may request.  

 

The requests for assistance from the ICC shall be made to the Minister of Justice and Constitutional Affairs in writing.

 

In fulfillment of its obligations under the Rome Statute, the ICC Act and the Agreement on Cooperation and Assistance between the Government of the Republic of Uganda and the Office of the Prosecutor of the ICC, the Government pledges its full cooperation to the ICC in the investigation and prosecution of LRA crimes, and in particular, Dominic Ongwen, achievement of which is vital, not only for the future progress of the nation, but also for the suppression of the most serious crimes of concern to the international community as a whole.

  

DOMINIC ONGWEN'S DEFENCE AT THE ICC

 

Government does not have any obligation in relation to Dominic Ongwen's defence at the ICC and has not made any offers for legal representation or support in that regard.

 

As an accused person at the ICC, Dominic Ongwen has a right to a fair trial and to legal representation by a lawyer of his own choice. Where he does not have a lawyer of his own choice, the ICC provides legal assistance assigned by the Court from a list of counsel maintained by the Registrar of the Court.

 

VICTIM PARTICIPATION AND REPARATION

Victims are entitled to participate in the proceedings on application to the Registrar of the Court. They are also entitled to legal representation.

Victims may seek reparations in the form of restitution, compensation and rehabilitation.

Assistance to Victims by the Government of Uganda

 

Government has endeavoured to assist the victims of the armed conflict in Northern Uganda through various efforts.  These include-

 

i.        the Northern Uganda Social Action Fund (NUSAF) that was initiated in February 2003. The project aimed at empowering communities in Northern Uganda;

 

ii.       the Northern Uganda Rehabilitation Programme (NUREP) an EU project implemented by the office of the Prime Minister, initiated in 2007, to support the regions of Karamoja, Acholi, Teso and Lango in Northern Uganda that have suffered many years of conflict;

 

iii.      the Peace, Recovery and Development Plan (PRDP), in 2007. The Programme was launched by the Government of Uganda to address the resulting gaps and challenges arising from the over two decades of war in North and North Eastern Uganda.

  

 

Hon. Peter Nyombi (MP)

ATTORNEY GENERAL

 

 

2^nd February, 2015

--
Disclaimer:Everyone posting to this Forum bears the sole responsibility for any legal consequences of his or her postings, and hence statements and facts must be presented responsibly. Your continued membership signifies that you agree to this disclaimer and pledge to abide by our Rules and Guidelines.To unsubscribe from this group, send email to: ugandans-at-heart+unsubscribe@googlegroups.com or Abbey Semuwemba at: abbeysemuwemba@gmail.com.