This post was written by Lino Owor Ogora, Director, Foundation for Justice and Development Initiatives, an NGO based in Gulu District, Uganda, that works with children, youth, women, and communities to promote justice, development, and economic recovery in Northern Uganda. The views expressed here do not necessarily represent the views of the Open Society Justice Initiative.
Colonel Thomas Kwoyelo is a former Lord’s Resistance Army (LRA) commander who is currently facing charges of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court of Uganda. Although authorities arrested Kwoyelo in 2008, the start of his trial has been postponed numerous times. In April 2016, a pre-trial hearing was held in Kampala, and the main trial that was scheduled to begin on May 2, was postponed to July 18, 2016, only to be postponed again to August 2016. This commentary focuses on the causes and possible ramifications of this latest postponement.
What is causing the delay?
The delay of Kwoyelo’s trial has been caused by various factors. One of these factors has to do with the delay in establishing and operationalizing the ICD, the court that has the jurisdiction to try war crimes and crimes against humanity in Uganda.
The ICD derives its origin from the Juba peace talks, which took place from June 2006 to November 2008 in Juba, South Sudan. While several agreements were signed during this peace process, the Agreement on Accountability and Reconciliation and its annex set the stage for the formation of the ICD. This agreement called for the establishment of a Special Division of the High Court to try individuals who were alleged to have committed serious crimes during the conflict in Northern Uganda. Consequently, the ICD first became operational as the Special Division of the High Court. It was later renamed the War Crimes Division in 2008.
After Uganda passed the International Criminal Court Act in 2010, the court was again renamed the International Crimes Division as it is known today. The ICD was established under legal notice No. 10 of 2011, issued by the Chief Justice Benjamin Odoki on May 17, 2011 under Article 133(1)(a) and (b) of Uganda’s Constitution. The ICD has jurisdiction to try offenses relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy, and any other international crime as it may be provided for under Uganda’s Penal Code Act, the Geneva Conventions Act, the International Criminal Court Act of 2010, or any other penal enactment.
Kwoyelo was captured at the tail end of the Juba peace talks, following LRA leader Joseph Kony’s refusal to sign the final peace agreement and the launch of Operation Lightening Thunder by the Ugandan People’s Defense Forces (UPDF). The ICD was still in the process of being established at the time of his capture, and Uganda had not yet domesticated the Rome Statute. As a result of the delay in establishing the ICD, it was close to three years after Kwoyelo’s capture that the trial was ready to commence.
On July 11, 2011, Kwoyelo appeared before the ICD and was charged with 12 substantive counts and 53 alternative counts of war crimes and crimes against humanity, to which he pleaded not guilty. However, his trial was stalled because his defense lawyers raised a preliminary objection arguing that Kwoyelo had applied to, and was entitled to, pardon under the Amnesty Act, which was still a valid law in Uganda at the time.
What followed was a long court battle between Kwoyelo’s lawyers and the Ugandan Director of Public Prosecutions (DPP) on the question of amnesty, leading to further delays in the start of Kwoyelo’s trial.
On September 22, 2011, Uganda’s Constitutional Court ruled that Kwoyelo was entitled to amnesty and directed the ICD to cease his trial. His trial was halted, but the ICD deferred his release to the DPP and the Amnesty Commission.
The DPP wrote to the Amnesty Commission on November 17, 2011, stating that Kwoyelo could not be released from detention because he had pending charges against him that rendered him ineligible for amnesty. In response, Kwoyelo’s defense team filed an application in the High Court of Uganda seeking orders to compel the DPP and Amnesty Commission to grant him amnesty, issue him with an amnesty certificate, and release him from custody. The High Court granted the defense requests on January 25, 2012.
Uganda’s Attorney General appealed this decision to the Supreme Court of Uganda requesting the court to again stay the release of Kwoyelo. This appeal, however, could not be heard because at that time the Supreme Court lacked quorum. The Chief Justice, Benjamin Odoki, had retired and Uganda’s President was yet to appoint a substantive replacement. This caused further delay in the start of Kwoyelo’s trial,
It was not until April 8, 2015, that the Supreme Court ruled that Kwoyelo’s trial was constitutional and did not violate the provisions of the Amnesty Act. With this ruling in hand, the ICD was cleared to proceed with the trial. However, between his first appearance in 2011 and the Supreme Court Ruling in 2015, the ICD had experienced personnel changes with new judges and a registrar being brought on board. New Special Rules of Procedure were also in the process of being developed. These Rules of Procedure were meant to guide the proceedings before the ICD and made provision for issues such as legal representation, victim participation, witness protection, and community outreach. It was therefore to be one year later before Kwoyelo’s trial could begin in earnest.
A pre-trial hearing was finally held on April 4, 2016, where the full trial was scheduled to start on May 2. When this date came round, the trial was postponed to July 18, 2016. On July 18, the trial was again postponed. The ICD has not been specific as to a new date but have hinted that another pre-trial hearing may be held in August 2016 with the full trial scheduled for October 2016. All these new dates remain to be confirmed though.
Representatives of the judiciary have given a variety of explanations for this latest round of postponements, one of them being that there were no funds to commence the trial and activities surrounding it, such as community outreach. The ICD claims it needs around 260 million Uganda shillings (approximately US$125,000) to facilitate trial proceedings for three months (the estimated duration of the trial). Another reason is that the court system is still clogged with petitions resulting from the presidential and parliamentary elections held in February 2016. Furthermore, the new Rules of Procedure that were completed and adopted in March 2016 need to be reviewed to correct existing flaws. The result is that the start of Kwoyelo’s trial has now been delayed for close to eight years.
Ramifications of the delay
The delay in the start of Kwoyelo’s trial is justice delayed and denied to both Kwoyelo himself and his alleged victims who have waited so long for justice. As an accused person, Kwoyelo has a right to a speedy and fair trial that will determine if he is guilty or not and if he has to serve a sentence or get his freedom. The delay by the ICD in sorting out administrative and legal requirements for the start of the trial has resulted in Kwoyelo’s pre-trial incarceration for eight years without a proper hearing for the crimes he allegedly committed.
On the part of his victims, the delay has not only denied them justice and reparations for the harm they suffered, but it may also have entrenched the long-held suspicion and distrust that many ordinary poor citizens have in Uganda’s judiciary, which is currently suffering a backlog of thousands of cases that have not been settled. It often takes many years for cases to be disposed in Uganda, and the loss of court files and records is a common scenario.
As a result, the efficiency and integrity of the ICD has been put on the line with this delay. Kwoyelo’s victims are entitled to reparations in the event that he is found guilty of having committed crimes against them. One of the reparative mechanisms frequently cited by victims is the need to compensate conflict survivors for the loss of lives, property, and livelihoods suffered during the conflict. A further delay in the trial means they will have to wait longer for the day when they finally get compensated. In the meantime, some of the victims who are entitled to reparations are dying, and many others are getting disillusioned.
I spoke with a resident of the northern Ugandan town of Pabo (where Kwoyelo hails from and is alleged to have committed most of the crimes he is accused of), who said the following:
We feel the postponement of Kwoyelo’s trial is a delaying tactic because we have not been given any reason why the trial has been postponed again. I thought this time the trial would begin. It is not correct to keep postponing it because this is not a new case that started in 2016. Kwoyelo needs to be tried quickly.
Another resident said:
Since they have postponed the trial they should tell us why they have done so. Is it because Kwoyelo has no lawyer, or is it because the Government is still conducting more investigations? The postponement affects those who want the trial to be concluded.
Victims have also been divided on the issue of whether Kwoyelo deserves Amnesty or not, so the delay only serves to re-enforce calls by certain sections of the population for Kwoyelo to be forgiven, while demoralizing those who believe he should be tried.