Thomas Kwoyelo in Uganda: Victims’ Participation Brings Hope and Challenges

This commentary was written by Romain Ravet, Country Director for Avocats Sans Frontières in Uganda and a specialist on justice and rule of law in the African Great Lakes region. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

On Monday, September 24, 2018, Uganda’s International Crimes Division (ICD) court opened the main trial in the case of Thomas Kwoyelo. This is the first ever case related to the conflict between the Lord’s Resistance Army (LRA) and the government of Uganda to be tried before an Ugandan court. The trial has faced many challenges, and the issue of victims’ participation in particular reflects the difficulties and the unique nature of the ICD within Ugandan courts.

Thomas Kwoyelo, alias Latoni, is a former LRA commander. He was allegedly enlisted into the Lord’s Resistance Army (LRA) under the command of Joseph Kony and rose through the LRA ranks to become a “colonel.” Between 1993 and 2005, Kwoyelo allegedly led a series of attacks on the Abera Village and the Pagak and Pablo camps for internally displaced people, in what is today the Amuru District of Uganda. The attacks resulted in the abduction, killing, maiming, and torture of dozens of people, including women and children. In 2009, injured in battle, Kwoyelo surrendered to the Uganda People’s Defense forces in the Garamba National Park (DRC). Contrary to other LRA commanders, including Joseph Kony, Kwoyelo’s name did not appear on an arrest warrant issued by the International Criminal Court (ICC) in 2005.

On August 30, 2018, Justice Susan Okalani confirmed 93 counts of crimes against humanity, war crimes, and other alternative crimes against Kwoyelo; his case is now pending before a panel of three judges. This is what the ICD calls the “main trial,” during which the court will hear evidence to determine whether Kwoyelo is guilty “beyond reasonable doubt.”

Kwoyelo faces charges before a domestic court in Uganda, the International Crimes Division (ICD). These charges include crimes against humanity and war crimes as established in international conventions to which Uganda is a party, such as the Rome Statute, the ICC’s founding law. Practically, this means that Thomas Kwoyelo will face trial in his country, Uganda, and that ICD will work under strict international standards for international crimes.

Getting to trial was a long and complicated process. In 2011, Uganda’s Constitutional Court granted Kwoyelo amnesty, based on an amnesty law from 2000. This law had been instrumental in bringing about peace negotiations with the LRA. However, the amnesty conflicted with Uganda’s ICC Act, legislation domesticating some provisions of the Rome Statute. In 2015, the Supreme Court ruled that some crimes could not benefit from amnesty—namely, those that involved acts specifically targeting civilians without a legitimate military purpose. The Supreme Court rescinded Kwoyelo’s amnesty and assigned his case to the ICD.

The case is the first ever to be tried under the ICD Rules of Procedure and Evidence, a special set of rules that aims to bring the ICD up to the standards of international courts. As a party to the Rome Statute, the ICD answers to the principle of complementarity—it has to be capable of dealing with cases of genocide, war crimes, and crimes against humanity with the same standards as the ICC. These international requirements have created unprecedented situations for the ICD, and as a result, the case is moving slowly.

Victims’ Participation Breaking New Ground

One particular challenge facing the court relates to victims’ participation. In 2016, a pre-trial judge granted Kwoyelo’s alleged victims the right to participate at all stages of the proceedings. In a country where the criminal system is essentially suspect-centered, this ruling has broken new grounds for which no playbook exists. The ICD has had to innovate and create its own precedents. In addition, victims’ participation requires access to technical and material resources. Despite efforts from civil society activists and development partners, these resources remain limited.

There are a number of concerns about the effectiveness of the victims’ right to participate in the main trial. Through the two legal counsel appointed by the court to represent them, the 98 alleged victims have filed applications to participate in the proceedings. However, their approval is still pending. Until their applications are duly processed, the 2016 pre-trial ruling will remain ineffective and victims will not be able to take part in the proceedings or to seek compensation in the case of a conviction.

Victims’ expectations are high and relate directly to their ability to participate. A recent study shows that victims expect reparations above all and that the accountability aspect is secondary for them, as communities remain divided around this case. Many in northern Uganda remain sympathetic to the LRA cause (which does not mean they approve of their crimes) and even more people are skeptical about the relevance of trying Kwoyelo through the formal justice system; some would rather see him undergo traditional Acholi rituals of reconciliation and punishment. Therefore, victims’ main interest is to get compensation for the harm they suffered. Options for reparations do exist, but if compensation depends on Kwoyelo’s solvency, they will remain virtual.

The judiciary is reluctant to give this trial resources that ordinary trials do not get. Yet, this trial is special in all aspects. The ICD’s ability to deal with international crimes will directly affect other pending cases, notably the Mukulu case, which has huge implications for ongoing regional conflicts. The international community is also watching whether the ICD will meet the test of complementarity with the ICC. Most importantly, many people in northern Uganda rely on the trial to help them heal and move forward with their lives.

But even if Kwoyelo is convicted, victims have almost no chance of receiving compensation unless the state develops a special fund. A cynical rumor is spreading in Northern Uganda that one had better be “a victim of Ongwen than of Kwoyelo.” They are referring to Dominic Ongwen, who is currently on trial at the ICC, which has a special victims’ unit and reparations fund that could help provide reparations to victims if Ongwen is convicted. This is a dark expression of the victims’ frustration, but it is also telling of the stakes at play.

People affected by the conflict still live with open wounds, figuratively and literally speaking. The narratives around the conflict are plural and complex: victims blame the state nearly as much as the LRA for their situation. People are pessimistic and despair that the state has not done enough to help them recover from the conflict. The trial is a double-edged sword: its success can help restore their relationship and bring some closure on the crimes of the past, but its failure could widen the gap between the northern population and the government. Meaningful victims’ participation might be the factor that will tip the scale in one direction or the other.