Victim participation is becoming a hallmark of transnational justice mechanisms and international criminal justice practices. While the focus should be on victims because they experience the horrors of atrocities that are committed, which these mechanisms seek to redress, they tend to have been marginalized in the past. If their privileges are recognized and met, victims can double as witnesses, can provide very useful information, and can contribute to restorative justice. This, however, is not practiced in common law jurisdictions where the focus is on retribution.
In 2008, Uganda established the International Crimes Division (ICD), which was born of the Juba Peace talks with the Lord’s Resistance (LRA) rebels who operated in northern Uganda and neighboring regions beyond the borders. The court was originally known as the War Crimes Division but was later renamed as the International Crimes Division to enable a wider jurisdiction. It was established under the High Court of Uganda, but as an independent court to handle crimes under the Geneva Convention Act of 1964 (Uganda), the International Criminal Court Act of 2010 (Uganda), and the Penal Code Act (Cap 120) pertaining matters of terrorism, piracy, and human trafficking, among other things.
Former LRA commander Thomas Kwoyelo is the first person to be tried under the ICD. He is charged with war crimes and crimes against humanity. What does this mean for the criminal Justice in Uganda? This case is a landmark case, expected to set precedence Ugandan jurisprudence and provide a model of complementarity for the international community. There are special Rules of Procedure set to guide the proceedings. These were passed in March 2016 by the rules committee. These rules have provisions that cater for the participation of victims throughout the trial. In ordinary criminal proceedings, victim participation only comes in at the end of a trial, during the mitigation stage as provided for under the sentencing guidelines. However, in the Kwoyelo trial, the victims are represented by a legal team throughout the entire trial process.
Attending the Kwoyelo trial, one cannot fail to identify the challenges faced by all stakeholders as they try to familiarize themselves with the new practices. It may seem like both the prosecution and defense are suspicious as to whose side the victim representation team belongs. The role of the victim representatives is, however, neutral. They look out for the best interests of the victims, and they will object if they believe that these interests are being compromised. The victim representation team has two lawyers: Jane Magdalene Amooti and Henry Kilama Komakech. The lawyers have already faced major setbacks, which they have tried to overcome at great difficulties.
It is worth noting that the case covers only victims in areas where Kwoyelo allegedly operated within the Ugandan borders. These are the sub-counties of Pabbo and Lamoji. They have not expanded to the victims from the Democratic Republic of Congo, where Kwoyelo was captured, because the ICD does not have the territorial jurisdiction to operate beyond the Ugandan boarders.
The slow start to the trial has been challenging. Proceedings in the Kwoyelo case started back in 2008, yet it is still at the pre-trial stage. This has caused loss of hope and interest for the victims, while others are feared to be deceased.
There has been a scarcity of funds from the government. This has made contacting victims a great feat. It is only the victims of Kwoyelo’s alleged offenses that are being looked for, but because of inadequate funding it is hard for the victim’s representatives to separate the victims of Kwoyelo from those who suffered harm under other LRA commanders. The capacity to undertake outreach is very strained.
The Registry of the ICD, which is in charge of victim representation, is also in dire need of assistance to meet its needs, including the need for more human resources. Under the ICD rules, it is the duty of the Registry to handle the matters of victims and witnesses regarding their participation, ensuring their anonymity, and their compensation (if awarded through reparations in the event of a guilty verdict) at the end of the trial. The Registry tried to outsource volunteers and interns, but this has made little impact on the efficiency of the proceedings.
There are also high expectations from the victims, who make comparisons between themselves and victims participating in the International Criminal Court (ICC) trial against Dominic Ongwen. However, the ICC has a well-established mechanism for victims and more funding, as opposed to the ICD. Communication to victims is therefore limited, although outreach has been done on the government-owned radio stations, like Mega FM, where Komakech himself has a talk show.
There is also the issue of victim protection. In my meeting with the lawyers representing the victims, a big concern was ensuring victim anonymity, especially in Gulu, which is a very communal area where people are engaged in each other’s lives and activities. The lawyers assured me that the court premises in Gulu have been fashioned to address this issue and will do their best to ensure safety of all the participating victims.
At the time of the pre-trial hearings held on January 31 and February 1 of this year, the victims’ legal team had a total of 73 victims who had confirmed their participation in the case. During the hearing, one of the victims’ lawyers clarified for the judge, however, that it was not a conclusive list. The judge has allowed the victim representatives to present a final list of the willing victims before the trial panel though charges have not been confirmed yet. The matter is still at the pre-trial stage.
Though the idea of victim participation is borrowed from the practices of the ICC, these practices cannot be implemented wholly by the ICD. The modalities of the participation of victims are not very clear in the rules of procedure, and they are not as far reaching as those of the ICC. However, the Registry together with the victims’ lawyers is working with the Office of the Prime Minister and the local leaders that have been tasked with the matter in northern Uganda. In addition, a list of such victims compensated will be provided to ensure that reparations are not tainted with fraud.
The Kwoyelo case, being the first of its kind, is a test trial for all stake holders in the Ugandan justice system. The court has to be very careful to set a positive precedent that can serve as guidance for future cases in Uganda and other countries under the doctrine of complementarity.
Branda Nanyunja is a researcher of international criminal justice, including for a judge withe the chambers of the International Crimes Division (ICD) of Uganda. She holds an LLM in Transnational Criminal Justice from the University of the Western Cape in Cape Town, South Africa.