On November 22, 2017, the International Crimes Division (ICD) of Uganda sitting at the High Court in Kampala delivered another landmark ruling when it confirmed that customary international law is applicable in the domestic courts of Uganda. It was the fifth pre-trial hearing of the year in the case of Thomas Kwoyelo, and the case is now one-step closer to a final determination on the confirmation of the charges against him.
Colonel Thomas Kwoyelo is a former commander in the Lord’s Resistance Army (LRA) facing charges of war crimes and crimes against humanity before the ICD of Uganda’s High Court. He first appeared before the ICD in 2011, but the start of his trial was delayed by various preliminary objections regarding questions on amnesty and most recently the question regarding the applicability of customary international law in the domestic courts of Uganda. The prosecution has charged Kwoyelo with 93 counts, 59 of which fall under customary international law.
In 2016, three pre-trial hearings were held in April, August, and September in an unsuccessful bid to confirm the charges against Kwoyelo. In 2017, more pre-trial hearings were held in January, February, March, and June, again with the purpose of determining whether the charges against Kwoyelo would be confirmed. At all these hearings, the charges levelled against Kwoyelo could not be confirmed due to preliminary objections against the indictment raised by the defense.
The main question before the court in the pre-trial hearing of November 22 was whether or not international customary law is applicable in Uganda’s domestic jurisprudence and if it can be used as a basis of the criminal charges against Kwoyelo. Other questions included: (1) whether the current charges against Kwoyelo were legally enshrined in the Uganda’s constitution; (2) whether the crimes with which Kwoyelo is charged under customary international law were recognized as war crimes and crimes against humanity at the time of their alleged commission; and (3) whether the charges in the current indictment were duplicated.
In a hearing that lasted for three hours, the presiding judge, Justice Susan Okalany, overruled all the preliminary objections of the defense and upheld the indictment against Kwoyelo based on “authorities, jurisprudence, case law and the constitution of the republic of Uganda.”
As Justice Okalany explained while delivering her ruling, “I have cautiously considered all the submissions of all parties in this matter, all the relevant laws and authorities indetermining these questions. I can now respond by saying that broadly speaking international law stems from three main sources; treaties, customs and generally accepted principles of laws derived from national and international legal systems.”
She continued on to explain that if customary law could form part of Uganda’s constitution, then so could customary international law. In her opinion, “The matter may only require a repugnancy test to establish it in Uganda’s jurisprudence, a test which in my opinion is not a very difficult one,” she said. Repugnancy in legal terms refers to an inconsistency or opposition between two or more clauses of the same deed, contract, or statutes. In Justice Okalany’s opinion, therefore, there was no inconsistency between Uganda’s constitution and customary international law.
Justice Okalany cited Article 128 of Uganda’s Constitution and clause 15(13) of Uganda’s Judicature Act, which permit the ICD to apply customary international law and customary law in general, and several other authorities and jurisprudence of institutions such as the International Court of Justice (ICJ), International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for Yugoslavia (ICTY), and the Special Court for Sierra Leone.
The court also ruled that the indictment and charges contained therein was legally enshrined in Uganda’s Constitution. The court explained that the crimes with which Kwoyelo is accused were recognized as war crimes and crimes against humanity at the time of their alleged commission and that the charges in the indictment are not duplicated.
Consequently, the court permitted the prosecution to pursue all crimes brought in the indictment as alleged to have been committed by the accused. The next hearing is scheduled to take place Monday, December 4. It is hoped that the ICD will make the final decision on whether or not to confirm the charges against Kwoyelo, who has been in detention since 2008, ending a lengthy pre-trial process and potentially pavingthe way for the ICD’s first trial.
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.