Thomas Kwoyelo’s Trial Commences in Uganda

The trial of Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) began this week before the International Crimes Division (ICD) sitting at the High Court in Gulu, northern Uganda. The trial opened amongst ongoing uncertainty about how long the trial will take, with the judges giving an estimate of three years. Other issues that remain unresolved are victim participation and reparations at the conclusion of the trial.

Kwoyelo is facing 93 charges of war crimes and crimes against humanity resulting from his role as a top LRA commander during the war in northern Uganda. Kwoyelo has been in detention since the Ugandan army captured him in 2008, and his trial has progressed at a slow pace. Kwoyelo first appeared before the ICD in 2011. The start of his trial was delayed due preliminary objections raised by his defense lawyers, who argued that he was entitled to amnesty under Uganda’s amnesty law, which 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 and did not breach Uganda’s amnesty law.

More delays arose as a result of the ICD’s failure to confirm charges against him despite numerous pre-trial hearings convened for that purpose. In 2016, three pre-trial hearings were held in AprilAugust, and September, while in 2017, four pre-trial hearings were held in January, February, March, and July.

On August 30, 2018, the ICD finally confirmed the 93 charges against him, thereby paving the way for the main trial to open on September 24, 2018.

Speaking before a packed audience prior to the commencement of trial proceedings, Justices Jane Kigundu, Dacan Gaswaga, and Michael Elubu—the three judges who will preside over the trial—stressed the need for a speedy and expeditious trial, as they promised to uphold the rights of victims to participate in the process.

“Today the ICD commences the trial of Kwoyelo. This case is the first to be tried in regard to the conflict in northern Uganda between the LRA and the Government of Uganda,” noted Justice Kigundu in her opening remarks.

Kwoyelo’s case is the first war crimes trial in the history of Uganda, and the ICD has had to create new rules of procedure that allow for victim participation and other requirements that arise out of Uganda’s international law commitments.

“This case is the first to be tried under the new ICD rules of procedure. As party to the Rome Statute, the ICD answers to the principles of complementarity. This ruling has broken new grounds, necessitating the ICD to innovate and create new rules of procedure,” explained Justice Kigundu.

In relation to Kwoyelo’s 93 charges, Justice Kigundu noted that, “The court found that the prosecution had established sufficient evidence and confirmed all of the charges. The court now has to examine evidence to establish Kwoyelo’s guilt beyond reasonable doubt.”

The audience, which included civil society representatives, community members, and the general public in Gulu, were then invited to ask questions or share any other concerns.

One CSO representative asked to know how long the trial would take. The judges, in their response estimated that the trial would last three years.

“We are keen to ensure that the matter is resolved. Prosecution intends to call about 120 witnesses, which will take about two years,” said Justice Elubu. “However, we shall take measures to see how time can be reduced. Defense will also have their witnesses. We have assurances of utmost support and as the panel of judges we shall try to ensure that within three years we have completed.”

“Justice issues are complicated so we can only estimate,” said Justice Gaswaga. “There are many factors that can complicate the trial. However, we are estimating that prosecution can take two years and the defense 1 year,” he added.

Another CSO representative asked how the court would ensure that victims were prepared to participate in the trial.

“We shall bring in procedures that are used in international law. We are incorporating an aspect of victims playing a part. Not all victims may be witnesses but a few may be called upon to inform the court. We shall not leave out the victims,” said Justice Elubu.

Another CSO representative asked how the court would ensure witness protection for witnesses testifying in the trial. The judges responded that it was an important aspect the court was considering, and warned the public against tampering with witnesses.

“This (witness protection) is a new aspect within our law. It has been undertaken in a few cases,” said Justice Elubu. “However, it is important that witnesses are protected. We have come up with a few measures which are already being implemented. Any witness under threat can approach the registrar. Anyone who tampers with a witness will be charged with a criminal offence,” he warned.

One of the defense lawyers asked how the court would ensure the accuracy of translation, given the different dialects that exist among the Acholi people. “Acholi language is a challenge. The dialect of an Acholi from Pader may be different from that of an Acholi from Amuru,” noted the lawyer. “Hence all witnesses should have their messages conveyed accurately by the translator.”

The judges responded that the court would ensure the availability of good and accurate translation.

“Whoever comes to the court should understand what is said. The accused should understand, and all people should participate,” said Justice Gaswaga.

A journalist asked to know why there had been so many delays in the trial. The judges noted that one of the biggest delays had been caused by constitutional matters raised by defense, particularly on the issue of amnesty.

“The case made a journey to the Supreme Court [of Uganda] and we lost seven years until the Supreme Court pronounced itself on the matter. We pray that we do not encounter such challenges again,” said Justice Gaswaga.

A CSO representative asked what forms of reparations victims could expect at the end of the trial. Justice Elubu, while acknowledging the important role of reparations, responded that the court had not yet determined what reparations would be awarded. “The matter will be given the court’s consideration before a decision is taken. We shall make a ruling later. However, the law provides for it.”

Following the stakeholders conference, the judges held status conference with the prosecution, defense, and victims’ lawyers to establish ground rules and a roadmap for the trial. This was in accordance with the new ICD rules of procedure, which provide for a status conference prior to the commencement of the main trial. The status conference was closed to the public.

It is expected that during the course of the week, opening statements will be made by the prosecution to kickstart proceedings.

Kwoyelo’s trial has without doubt attracted the attention of the public and has been described as historic by one of the judges. “This is the case of the century,” said Justice Gaswaga. “We are writing history. We have new rules of procedure which makes it an interesting case as we look for justice.

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.