Kwoyelo’s Trial Drags On in Ugandan Court as Defense Counsel Labels the Charges ‘Fatally and Incurably Defective’

Colonel Thomas Kwoyelo, a former commander in the Lord’s Resistance Army (LRA), 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.

The start of Kwoyelo’s trial, however, does not appear imminent. Delays have characterized his case since 2008, the latest being an intense debate on whether or not the ICD has jurisdiction to try Kwoyelo using international criminal law for crimes committed in a domestic setting.

Kwoyelo first appeared before the ICD in 2011, but the start of his trial was delayed as a result of preliminary objections raised by his defense lawyers who argued that he was entitled to amnesty under a law in Uganda that was valid at the time of his capture. This matter was not settled until 2015, when Uganda’s Supreme Court ruled that Kwoyelo’s trial was constitutional. Thereafter, three pre-trial hearings were held in April, August, and September last year.

In 2017, three additional pre-trial hearings have been held in January, February, and March, respectively.  While these latest pre-trial hearings were meant to pave way for the commencement of the trial this year, they have instead created legal challenges that have further delayed the start. Most recently, Kwoyelo’s defense counsel labelled the charges as “fatally and incurably defective.” The defense argues that the conflict in Uganda was largely domestic, and the prosecution cannot therefore charge Kwoyelo under international criminal law.

Other factors that have caused a delay in the trial include: objections by the defense that Kwoyelo is not medically fit to stand trial; a delay in translation of the charge sheet and other documents into the Acholi language; and a disagreement between the defense and the prosecution over redaction and delayed disclosure of evidence. Below is a summary of the three pre-trial hearings that have been held in 2017 and the key issues that came up.

January 31 – February 1, 2017

At this pre-trial hearing, proceedings were halted based on five objections raised by Kwoyelo’s defense team. These were:

  1. Their client, Kwoyelo, was sick and had not been given access to medical treatment;
  2. An amended indictment by the prosecution had been served upon the defense late on Monday, January 30;
  3. The said indictment had not been translated into Acholi, Kwoyelo’s native language, as directed by the court at the September 2016 hearing;
  4. Security had not been provided for the defense team as directed by the court in September 2016; and
  5. The prosecution’s amended indictment, which contained redacted and non-disclosed evidence, had been filed in non-conformity with the ICD Rules of Procedure and Evidence.

Defense counsel Caleb Alaka specifically noted that the prosecution had not complied with Rule 2(2) and (3) of the ICD Rules of Procedure and Evidence. These particular rules specify procedures that should be followed when one party wishes to redact or not disclose evidence to the other party.

In response to the above, the court ruled in favor of the defense by asking the prosecution to file a new, formal application for redaction and non-disclosure within seven days and to have it served served to all parties. The court also ordered that the indictment and other documents be translated into the Acholi language and that security be provided to the defense lawyers. (The lawyers’ request for security was based on their fear that they were handling a sensitive case that could put them at risk.) The prisons department was also ordered to allow Kwoyelo to access medical treatment. Proceedings were then adjourned to February 22.

February 22 – 23, 2017

At the second pre-trial hearing this year, the question on disclosure and redaction of evidence and whether or not to amend the charges dominated the discussion.

The prosecution requested that the court grant delayed disclosure of evidence, particularly regarding the identities of victims and witnesses and their statements. They also requested the court to allow them to produce some witnesses later during the course of the trial. The prosecution said that they sought to redact names, ages, sex, addresses, and signatures of victims and witnesses. The defense objected, noting that the witness statements that the prosecution sought to redact had already been disclosed in 2010 and in 2016. The defense noted that the application for redaction was speculative, based on conjecture and thus baseless.

In its ruling, the court granted the prosecution’s request for delayed disclosure and redaction based mainly on the fact that victims and witnesses deserved to be protected from any harm that could arise out of their participation in the trial.

The prosecution also sought permission from the court to amend the charges against Kwoyelo. The prosecution submitted that they were substituting and adding new counts under Common Article 3 of the Geneva Conventions and Uganda’s Penal Code Act to have Kwoyelo charged under local laws of Uganda and to have the conflict characterized as one that is not of an international nature. The prosecution noted that they intended to bring 93 counts, 59 of which fell under customary international law. (This is an increase from the original indictment, which contained 53 charges.)

The defense objected to this request noting that the charges were highly defective and brought under the wrong laws because the original charges referred to a conflict of an international nature, yet the victims were all Ugandan.

The court agreed that the original charges stated that the alleged crimes occurred in the context of an international, not domestic, armed conflict. The court, however, noted that this notwithstanding, the concise statement of the facts clearly described offenses committed only within the borders of Uganda.

In its ruling, the court granted the prosecution’s request for alteration of the indictment and adjourned proceedings to March 14.

March 14 – 16, 2017

From March 14 to 16, another pre-trial hearing was convened with the major objective of reading and confirming the charges against Kwoyelo based on the amended indictment by the prosecution. The new indictment contained 93 counts, 59 of which were appearing under customary international law and the others under the Penal Code Act of Uganda’s Constitution and the Geneva Conventions.

After reading of the charges, Kwoyelo’s defense lawyers raised an objection in regard to the application of customary international law in the Uganda legal jurisprudence.

The defense noted that the charges raised “extremely serious” and “grave concerns,” not only in the manner in which they were presented, but also in the substance contained in the indictment. In the words of Alaka, Kwoyelo’s defense lawyer, the indictment “created double jeopardy, was unconstitutional, and thus defective and illegal basing on technical and legal grounds.”

In explaining the comments above, the defense said that the charges brought against Kwoyelo under customary international law were inconsistent with and/or in contravention of the Uganda’s constitution. The defense noted that under Uganda’s constitution, the principle of legality requires that an offense be defined by law and a penalty prescribed for it accordingly. The defense argued that those crimes under customary international law, and in particular inhumane acts such as enslavement, rape, murder, or torture were not clearly defined in Uganda’s constitution.

In reply to objections raised by the defense, the prosecution sought an adjournment to give them time to prepare an appropriate response. The presiding judge then adjourned proceedings to the following day, Wednesday, March 15. However, when proceedings resumed, the prosecution was not prepared, so another adjournment had to be made.

On Thursday, March 16, the prosecution again sought an adjournment, saying they needed a longer period of time to prepare their response. They based their request for more time on the basis that international criminal law was a new field in Ugandan jurisprudence, mainly brought about by the creation of the ICD and the case of Thomas Kwoyelo.

“International Criminal Law is a new and challenging area with a lot of authority and concepts needed, so we find the time provided insufficient for us to do the work. We hope our request for more time does not go against the interest of justice owing to the fact that it is a new area of jurisprudence,” said Charles Kaamuli the lead prosecutor.

With no objections from the defense, the court adjourned proceedings to May 9.

With Kwoyelo having been in detention for close to nine years now, a further adjournment of his case has created more uncertainty about the start of the trial. It remains to be seen whether the main phase of the trial will be handled expeditiously when, or if, it begins.

Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda since 2006. He is also the 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.