The Kwoyelo Case at the ICD: The Realities of Complementarity in Practice

The term “complementarity” often features in conversations around international justice. The preamble to the Rome Statute emphasizes the complementary role of the International Criminal Court (ICC) to national criminal jurisdictions. Article 17 anchors ICC interventions on among others, the “inability” or “unwillingness” of a State to investigate and prosecute.

Uganda has been under an ICC investigation since July 2004 for alleged crimes related to the Lord’s Resistance Army (LRA) in Northern Uganda. However, since then it has also moved forward in establishing an International Crimes Division (ICD) within the High Court of Uganda, which is set to try its first case this summer. The trial of Thomas Kwoyelo, a former LRA mid-level commander charged with crimes under Uganda’s Geneva Conventions Act and Penal Code Act, will be a test of the country’s willingness and ability to prosecute. (To read the amended indictment against Kwoyelo, click here.)

Special Rules of Procedure to guide proceedings in cases before the ICD were passed in March 2016 by the Rules Committee that was established under Uganda’s Judicature Act.  Although the next formal steps have not been undertaken, that is, the signing of the rules by the  by the Chief Justice and gazetting, they were applied during Kwoyelo’s first appearance before the High Court, which took place following the Supreme Court decision that held he was not entitled to benefit from Uganda’s amnesty law.

The reality, however, is that such milestones, as grandiose as they may be, are not enough for one to determine a successful complementarity process. In my meeting with the ICD Registrar in charge of Special Projects, Her Worship Harriet Ssali, it is quite evident that there are challenges that the division has to contend with as it tries this important case.

Unlike the ICC, which has elaborate and fully functional internal structures, such as a Victims and Witness Unit and an outreach program, the ICD, owing to serious budgetary challenges, has to make do with ad hoc structures to fulfil these mandates. The Registrar explained to me that one of the reasons why Kwoyelo’s trial start date had to be postponed from May 3 to July 18 is because the court is still struggling to mobilize funding to carry out outreach with victim communities prior to restarting the trial.

It is the court’s belief that leaving victims isolated from a process that is ultimately intended to benefit them turns complementarity into a mere cosmetic term. Part of what makes the ICC process understandable to victim communities is its outreach function; the ability to move into communities and explain otherwise complex judicial processes. While fundraising is ongoing, the ICD has already contacted and received approval to use Government-owned radio stations in Northern Uganda to relay information on the Kwoyelo case. It is, however, still important for the court to physically reach communities in different parts of Northern Uganda. This cannot be done without adequate resources.

Even with its good intentions, the ICD faces the challenge of serious human resource constraints. The court is not in a position to recruit staffers to carry out some functions that are pivotal for a holistic and successful trial of serious crimes. This is partly because the units mentioned earlier, although recognized as important, do not exist within the court’s structure. Needless to say, such recruitments would also require extra financial resources. The court has therefore opted to creatively think around this issue by sending out a call for volunteers and interns.

While infrastructure may not rank highly in the list of priorities, one cannot help but notice the clear distinction between the ICC and ICD courtrooms. Located in its new state of the art premises, the ICC courtrooms are fitted with all manner of sophisticated technology and above all, space.

It is difficult for one to understand the relevance of the latter unless they have attended a fully packed hearing in one of Uganda’s courtrooms. The Registrar mentioned that during Kwoyelo’s first appearance, the courtroom was fully packed and therefore proved to be too small. Some people had to be turned away while others had to crane their necks to get a glimpse of the man in the dock and catch bits of the proceedings.

The ICD is already exploring ways of addressing this challenge. They have written to the ICC requesting assistance to televise the proceedings for the overflow crowds at the court premises. It is important to note that during Dominic Ongwen’s confirmation of charges hearing, which took place in The Hague this past January, the ICC field office televised the proceedings from The Hague to different parts of Uganda, particularly the Northern region where the LRA committed grave atrocities. Whether the ICD request for assistance from the ICC to enable it do the same in the Kwoyelo case will be considered is something that remains to be seen.

Strictly looking at the Rome Statute, there is no place for the ICC to support national criminal jurisdictions to carry out their complementarity functions. However, within the wider scope of the global fight against impunity and building sustainable institutions in this regard, it would be beneficial for the ICC to provide such support to national actors who are often not in a position to implement best practices due to numerous challenges.

Turning to victim participation, the Registrar mentioned that the process that will be applied at the ICD will differ from the one at the ICC. It is noteworthy that the new ICD Rules of Procedure provide for participation of victims in the judicial process, and the victims in the Kwoyelo case are currently represented by three Ugandan lawyers.

The Registrar noted that unlike the ICC, which has elaborate victim participation procedures, the ICD will adopt simpler processes. Although the ICD Rules of Procedure provide for victim participation, there is very limited information on the modalities that will be followed. What is known is that the victims’ lawyers have been tasked by the ICD registry to develop a comprehensive victims’ index, which will then be shared with the Uganda Office of the Prime Minister and local governments that have in the past been involved in compensating sections of communities in Northern Uganda. This process is intended to minimise incidences of double compensation at the reparations stage of the case.

Regarding witness protection, she pointed out that it will be the role of the prosecution to refer such matters to the relevant government authorities or departments. The latter have assisted with witness protection in other cases. The Registry has provided a witness risk assessment form, which will be used by the prosecution. It is important to note that even with the Kwoyelo case proceeding through the judicial system, Uganda has yet to formally establish a witness protection agency.

The Thomas Kwoyelo case, as a colleague closely following the trial mentioned, is itself “a trial within a trial.” Uganda is testing out a number of things. It is clear that this trial will demonstrate both the truths and fallacies in the principle of complementarity as envisaged in the Rome Statute.

The author would like to extend her gratitude to Her Worship Harriet Ssali for speaking to International Justice Monitor.