Kony Defence Lawyer Urges ICC to Reconsider In-Absentia Hearing

The defense lawyer for Joseph Kony, the elusive leader of the Lord’s Resistance Army (LRA), has formally requested the International Criminal Court (ICC) to reconsider its decision to hold a confirmation of charges hearing against Kony in his absence.

In a filling submitted on April 3 this year to the ICC Pre-Trail Chamber III that contains new materials never before presented in court, the defence argued that the proceeding without Kony’s physical presence will have a detrimental impact on ongoing repatriation and reconciliation efforts in Uganda.

Peter Haynes KC, Kony’s defence lawyer presented diverse views from political, cultural and religious leaders in northern Uganda, as well as from members of civil society who each raised concerns about the impacts of the confirmation of charges hearing.

Kony who faces 36 counts of war crimes and crimes against humanity including murder, enslavement and the use of child soldiers has been a fugitive since the ICC issued a warrant for his arrest in 2005. Despite years of international efforts, he remains at large with his whereabouts currently unknown.

The ICC Pre-Trial Chamber III has scheduled the confirmation of charges hearing in the case of Kony on September 9 this year at The Hague, Netherlands. According to the Prosecutor, holding the confirmation of charges hearing in the absence of Kony could help advance efforts to locate and apprehend him.

However, Kony defence lawyer argued that the confirmation process will not renew or sustain efforts to bring Kony before the Court.

He noted that religious, political and cultural leaders in northern Uganda believe that the ICC confirmation of charges process will have the opposite effect and will risk undoing years of work centered around a complex and inter-state program of the LRA repatriation.

“These leaders, many of whom are personally involved in repatriations, are of the united view that the ICC’s attempt to hold in absentia proceedings disrupts these reconciliation efforts and that now “Joseph Kony will never emerge” he argued.

The defence also highlighted concerns that the confirmation process risks destabilizing the affected community in northern Uganda and jeopardizing a sustainable peace.

Drawing from statements of the civil society, he noted that the narrow focus of the ICC’s charges against Joseph Kony risks fracturing and dividing a society that has made unprecedented strides towards peace, by elevating certain groups of victims above others who are cut out of this process.

“These community leaders explain that Joseph Kony’s absence separates his victims from those of Dominic Ongwen, or Thomas Kwoyelo, for example, who were able to see the defendant in the courtroom, and who are now entitled to reparations,” the statement read.

The defence team also argued that whereas the Pre-trial Chamber III scheduled the confirmation of charges hearing on the basis that Kony is not someone who “cannot be found”, approximate whereabouts of Kony are known and have been publicly reported in recent months.

For instance, the defence argued that many former LRA fighters and Kony family members who have been repatriated in February and March this year to Gulu know Kony’s approximate whereabouts.

Kony’s lawyer has now asked the Pre-Trial Chamber based on its filing to reconsider its Decision on the criteria for holding confirmation of charges proceedings in absentia, or, in the alternative on September 9. He also requested the court to issue an order inviting observations from interested parties within Uganda on the question of whether there is cause to hold a confirmation of charges hearing in the absence of Kony.

According to the ICC, the Rome Statute allows for the confirmation of charges proceedings at the Pre-Trial stage in the absence of the suspect, under specific conditions.  However, if the charges are confirmed, the case can only proceed to trial stage if the accused is present before the Trial Chamber.

Maria Mabinty Kamara, the ICC Outreach Officer and Spokesperson for Uganda told journalists in Gulu City on Tuesday via zoom that the Judges at the Pre-Trial Chamber will make final decisions after receiving observations from the prosecution.

“Given the factors that they highlighted in their filing, the judges will invite the prosecution to provide their observations… and the judges will assess all of these filings and make the final determination,” she said.

In February this year, Kony Defence also filed for an appeal against Pre-Trial Chamber III’s decision on the criteria for holding confirmation of charges proceedings in absentia and requested the Appeals Chamber to reverse the questioned the decision for further deliberation.

Kony, who led a brutal two-decade insurgency in Northern Uganda and the surrounding countries remains one of the ICC’s most notorious indictees and despite diminished LRA activities in recent years, efforts to apprehend him continues.