The 30 Lawyers can still defend the Ongwen's case as individuals

By Judi Ajalo Erongot

Many people are asking whether the 30 lawyers that have applied to the Government to defend Dominic Ongwen are eligible to manage expectations. 

The ICC established an office of public counsel for the defence in charge of defence issues. For administrative purpose, the office falls under the registry otherwise the office is independent. Its creation pursuant to Regulations of the Court, Regulation 77 is a major novelty of the ICC. Its uniqueness is represented in the functions among others, to represent and protect the rights of the Defence to uphold the principle of equality of arms thus flagging the right to a fair trial as of right.

The office is not perse a public defenders, because suspects have a right of choice of a Counsel by the Rome Statute if the accused cannot afford. Regulation 69 has provided criteria to be met by an aspiring counsel/lawyer, to be included in the list of the counsel, a lawyer is expected to complete the forms provided by the registry for purpose of being on the defence counsel.

Where by the candidate has to tender in a detailed curriculum vitae, a certificate issued by each bar association the person is registered with in this, and each relevant controlling administrative authority confirming that lawyer’s qualifications, the right to practice and the existence, if any, of disciplinary sanctions or ongoing disciplinary proceedings, and a certificate issued by the relevant authority of each State of which the person is a national or where the person lives stating the existence, if any of criminal convictions. Article 70 states on receipts of an application by the person seeking to be included in the list of the counsel, the Registrar of the ICC establishes whether the person has provided the information required.

The decision whether the person shall be included in the list is notified to the person, if the application is rejected the reason are provided and or information for the person to apply for review, if reject is given and the person is free to apply for review.

In Uganda, I am aware of about five or six lawyers that have been admitted to the defence team. These are MacDosman Kabega, Peter Kabatsi, Justice Eva Luswata and Francis Onyango a former colleague at the ICC.  Victims have a right to participate before the ICC however due process must be followed forms is filled through intermediaries. Upon reviewing the forms the judges to determine whether the person qualifies to be a victim of the ICC and the judges give directions of when to participate. In most cases the participation will be through the victim’s lawyers not necessarily having all the victims go to The Hague.

To qualify to fill the forms the victim must be a person or an institution who suffered harm from July 1, 2002 when the ICC started its work and the crimes must be; crimes against humanity, war crimes and or genocide.

Sharing my experience was the first ever review conference of the ICC, hosted in Uganda 2010, popularising these the idea of filling forms, few lawyers seemed interested, many of them asked when will Kony be arrested, will the LRA commanders ever be got and other told me the form were so comprehensive they did not think time will be available to fill them I have pending cases. Such was the language we got though we registered a few lawyers apply. One of the commanders is in ICC custody, the 10 virgin girl’s story continues in the bible, who is to blame.

The writer is a lawyer specializing in International Law and Settlement of Disputes working with Human Rights Network-Uganda formerly with the ICC