Landmark Ruling on Victim Participation in the Case of Thomas Kwoyelo

Colonel Thomas Kwoyelo is a former LRA commander who is currently facing charges of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court in Uganda. Kwoyelo has been in detention since he was captured by the Ugandan Army in 2008. Kwoyelo first appeared before the ICD in 2011, but the start of his trial was delayed as a result of preliminary objections raised by the defense lawyers that he was entitled to amnesty.  Two pre-trial hearings were held in April and August 2016 respectively, in preparation for the main trial, which is scheduled to start later this year.

From September 21 to 23, 2016, the International Crimes Division (ICD) sitting at the High Court in Gulu held a third pre-trial hearing. Among other factors, this hearing was necessitated by the fact that the ICD in June 2016 had developed and approved new rules of procedure (ICD Rules 2016), which called for the holding of a pre-trial conference, and also by the fact that Kwoyelo’s privately appointed lawyers were not present at the previous hearing.

One of the key decisions that emerged out of this hearing was a landmark ruling on victim participation, where the court decided that victims would be allowed to participate in proceedings through their legal representatives. The court, however, ruled that the nature and extent of their participation would be determined at a later date by the trial chamber. This is the first ruling of this nature in Uganda and sets a precedent in Ugandan jurisprudence.

Prior to the above ruling, the court grappled with the question of whether or not the presiding judge, Honorable Justice Susan Okalany, was legally mandated to preside over proceedings before the ICD. According to Rule 6 of the ICD Rules 2016, “The head of the Division [ICD] shall designate a Judge of the Division to preside over the pre-trial proceedings.” In the opinion of the defense, while Justice Okalany is a judge of the High Court, she was not specifically appointed to the ICD, and therefore Rule 6 barred her from presiding over any proceedings of the ICD.

The second objection raised by the defense was in regard to the legality of the current pre-trial hearing. The defense argued that in the pre-trial hearing held on April 4, 2016, the ICD Rules had not yet been developed and approved by the court, and therefore following the approval of these rules, there was need for a court order instructing the ICD proceed de novo. They argued that the absence of a court order in this regard made any pre-trial hearing held after April 4, 2016 illegal.

The defense was overruled in both instances raised above, with the court noting that Article 139 of the Ugandan constitution mandated the High Court to handle all matters civil or criminal. The court also noted that ICD judges were not specifically designated to serve only within the ICD but that there was an established practice within the High Court where judges were assigned to carry out assignments in other court circuits without segregation. She also noted that there were no special qualifications for ICD judges that distinguished them from other judges of the High Court in Uganda. The court also ruled that the adoption of the ICD Rules after April 2016 had no impact on the current proceedings.

Following the above ruling, the defense said they were not satisfied and requested a stay of proceedings to enable them to appeal the court’s decision in a higher court. This request was also denied. The court noted that judges of the High Court were not permanently assigned to the ICD and that within the ICD legal framework any judge of the High Court could handle a pre-trial hearing and issues required for settlement before commencement of the main trial. The court also noted that appeals were a matter of statute, which meant that appealing against interlocutory rulings was not permissible and that for decisions to be appealed against, they had to be final. In the words of the presiding judge, “appealing against every decision of the court during trials would make it impossible to finish trials, undermine procedure, and open the court to an abuse of the process.” The court therefore ordered for proceedings to resume.

On the second day of the hearing, the defense raised more preliminary objections. The first objection was in regard to the status of the victims’ lawyers present in the court. The defense noted that “the victims’ counsels appeared to represent an unknown set of victims because under international law victims would ordinarily have applied for participation in the case, and thereafter the court would determine if they could participate or not, and if they were entitled to reparations.” The defense argued that at the moment it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers. The defense requested the court to come up with guidelines regarding the participation of victims and the role of the victims’ counsel, which they believed was unclear. The prosecution, for their part, stated that they had no objection to the participation of the victims’ lawyers in the trial.

The victims’ lawyers responded to the defense’s objections by informing the court that they had a list of victims that they intended to submit for participation. The victims’ lawyers further argued that victims needed to participate at all stages of the trial. As one victims’ lawyer noted: “If victims do not participate during the process and come at the end, then what would be the purpose of their participation?”

The second preliminary objection was in regard to the accused’s failure to understand the charges against him because all documents being used were in English, and Kwoyelo only understands Acholi. The defense requested that the indictments, the summary of the case, and all written statements against the accused be translated into the Acholi language. As noted by one of the defense lawyers, “It is not the defense lawyers who are on trial but rather the accused. Every statement therefore needs to be translated.”

In reply, the prosecution argued that informing the accused of the indictments against him did not necessarily call for the translation of all the documents into writing and that oral submission was in itself adequate. The prosecution also argued that interpretation of all documents would cause an unnecessary delay and would require a lot of resources. As an alternative, the prosecution suggested that an interpreter be assigned to Kwoyelo.

The third preliminary objection raised by the defense was in regard to the disclosure of evidence by the prosecution. The defense noted that disclosure had not been made in conformity with the law because much of the evidence had been redacted without authorization of the court. The defense also contended that some evidence had not yet been disclosed to them. In response to this, the prosecution promised to disclose all evidence and to apply to the court for redaction and non-disclosure where necessary.

Finally, the defense requested that the court facilitates Kwoyelo’s lawyers with resources to prepare for the trial. They specifically requested financial support, researchers, vehicles, computers, and other facilities that would enable them to prepare for the trial. In reply to this request, the prosecution noted that while the accused was entitled to assistance to enable him to prepare for his trial, any assistance offered had to be within the means of the State.

After listening to arguments from the defense, the prosecution, and the victims’ lawyers, the court made the decisions below.

On victim participation, the court found that there was a consensus in all submissions that victims should participate in proceedings. The court therefore ruled that victims would be allowed to participate in a manner similar to provisions of the International Criminal Court (ICC) Rules of Procedure and Evidence. The court directed that victims apply formally to the ICD Registrar for participation and that each application was to be made individually and considered on its own merit. The court ordered the Registrar to compile a list of all victims for purposes of formal recognition. The court also ruled that the victims’ lawyers would be at liberty to provide evidence to the prosecution and the defense. The court finally ruled that the extent of participation of victims at different stages of the trial would be subject to determination by the trial chamber.

In regard to the defense request for translation of all documents into Acholi and for facilitation with resources, the court ordered that the ICD Registrar provide the defense team with research funds and transport to help Kwoyelo in preparing for his defense. The court also ordered the appointment of an Acholi interpreter to be paid by the ICD Registry throughout the trial. In addition, the court ordered that the summary of the case and indictments be translated into Acholi to enable Kwoyelo to understand the charges against him.

On the disclosure of evidence, the court ruled that the prosecution had not acted in accordance with the law in redacting or withholding evidence without prior permission. The court therefore ordered the prosecution to disclose evidence to the court within 15 days in accordance with Rule 21(4) of the ICD Rules 2016. The court also ruled that the prosecution makes disclosure of unrestricted evidence to the defense and the victims’ counsels within 15 days. The court also directed that the prosecution applies to the court in the event that they wished to redact or withhold evidence.

The next pre-trial hearing is scheduled to take place on October 31, 2016.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in Northern Uganda.