Confirmation of Charges Hearing against Thomas Kwoyelo Postponed Again

The confirmation of charges hearing against Thomas Kwoyelo, alias Latoni, has been postponed yet again to July 23, 2018, purportedly due to a lack of quorum by the defense lawyers. The adjournment occurred on Monday, June 11, at the International Crimes Division (ICD) sitting at the High Court of Uganda in Kampala. The session was presided over by Justice Susan Okalany, who has overseen the pre-trial phase of Kwoyelo’s case since 2016.

During Monday’s hearing, Justice Okalany warned that this would be the last adjournment and stipulated that at the next hearing, the charges would be read and confirmed in the same week. Meanwhile, Kwoyelo, who was present in court, expressed anger at the slow pace of the proceedings, but the judge advised him to consider getting more serious lawyers.

Kwoyelo, a former commander in the Lord’s Resistance Army (LRA), is facing charges of war crimes and crimes against humanity before the ICD of Uganda’s High Court. Kwoyelo has been in detention since the Ugandan army captured him in 2008. To date, the charges against him remain unconfirmed despite the holding of several pre-trial hearings. In 2016, three pre-trial hearings were held in April, August, and September, while in 2017, three pre-trial hearings were held in January, February, and March.

In anticipation that the charges would be confirmed, close to 80 spectators, including the press, packed the courtroom to follow proceedings, only to be disappointed by an adjournment to late July.

At the last scheduled pre-trial hearing in July 2017, the hearing failed to take place when neither the judges, nor the prosecution or defense lawyers appeared. This time, it was the defense team that lacked quorum because lead counsel Caleb Alaka, and another court appointed lawyer, Boris Anyuru, failed to turn up. Only one defense lawyer, Charles Dalton Opwonya, was present.

Opwonya submitted to the court that the defense was not ready to proceed due to the absence of other defense lawyers. He explained that the defense received a formal notice about the hearing late, although he acknowledged an email about the hearing they received one month ago. He therefore requested an adjournment.

The prosecution and lawyers representing victims did not object and agreed that for the interest of justice, the defense’s postponement request should be granted.

Kwoyelo then expressed discontent at the slow pace of proceedings by categorically stating that he had been informed of the hearing late. “I just received a letter today about this hearing. I would like to know why I cannot be informed in time. I should be served with a timely notice as required if I am truly the one being tried,” he said.

In response, Justice Okalany blamed Kwoyelo’s defense lawyers for not serving him with a hearing notice in time. “Your lawyers were given a copy in time. If they didn’t give you copies it means they are not good lawyers. They have missed three consecutive sessions. You have to summon and talk to them because it seems you have been left alone,” remarked Justice Okalany.

Kwoyelo then asked court to allow him to change his lawyers, a request that the judge said could be granted only if he followed the required legal procedures. The judge further hinted on the lack of seriousness of the defense lawyers and advised Kwoyelo to get lawyers who are more committed to his case because, in her view, the current lawyers are not.

In response, Kwoyelo requested that Nicholas Opio, a former defense counsel who withdrew from the case be reinstated. The judge again advised Kwoyelo to follow the necessary procedures if he intends to change lawyers

The adjournment means that Kwoyelo’s case will suffer another delay, a factor that may further tarnish the image of the ICD given that no case has ever been disposed of by the court since its creation in 2008.

Another case that continues to drag before the ICD is the trial of Jamil Mukulu, the former rebel commander of the Allied Democratic Forces (ADF). Mukulu was captured in Tanzania in April 2015 and extradited to Uganda. He is charged with one count of terrorism, seven counts of murder, nine counts of aggravated robbery, one count of aiding and abetting terrorism, among other charges. He is also accused of launching a rebellion against the Ugandan government.

On March 6, 2018, the ICD announced the names of judges who would hear the cases of Kwoyelo and Mukulu. The court announced that justices Moses Mukiibi, Duncan Gaswaga, and Micheal Elubu would hear Kwoyelo’s case, while justices Moses Mukiibi, Micheal Elubu, and Susan Okalany would be hearing Mukulu’s case. Despite this announcement, both cases appear to be stuck at the pre-trial phase.

A closer analysis, however, will reveal that Mukulu’s case has progressed faster than that of Kwoyelo. While Kwoyelo was arrested in 2008, his pre-trial hearing only started in earnest in 2016, following a prolonged court battle over whether he was entitled to amnesty. Following his arrest in 2015, Mukulu’s pre-trial sessions started in 2018, less than half the time it took for Kwoyelo’s to commence.

While it is true that both cases have been very slow to make progress, they also raise the question of why proceedings in Mukulu’s case are moving faster compared to Kwoyelo’s case.

Jane Bako Patricia, a human rights activist and law lecturer from Mukono University, noted that, “Mukulu’s case might move forward faster than Kwoyelo’s given the publicity it has generated. I attended the last pre-trial hearing, and the courtroom was packed. There was also a lot of security.”

Still, the date for the next hearing in Mukulu’s case remains uncertain.

In the case against Kwoyelo, Justice Okalany has stipulated that the charges against Kwoyelo will be read and confirmed at the next hearing. Both the prosecution and defense teams have been provided deadlines for exchanging critical documents and making disclosures. Left unsaid, however, is that the chosen date, July 23, also coincides with the commencement of the court recess in Uganda, so it remains uncertain whether the hearings will indeed take place.

Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan 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.