The trial of Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA), continued last week at the International Crimes Division (ICD) of the High Court of Uganda with testimony from the second prosecution witness. Meanwhile, on Tuesday this week, the court denied Kwoyelo’s request for bail. The trial has now been adjourned until June 24, 2019.
Kwoyelo is facing 93 charges of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005. He has been in detention since his capture in 2008. Justices Jane Persis Kiggundu, Duncan Gaswaga, and Micheal Elubu are presiding over the main phase of the trial, which started on March 11. The prosecution team made their opening remarks on March 12 and revealed plans to summon over 130 witnesses.
On Monday, March 18, the second prosecution witness, PW2, who has also been given the pseudonym name H29, continued with testimony that had begun the previous week. Witness PW2 testified about the overall background of the conflict in northern Uganda and Thomas Kwoyelo’s involvement between 1993 and 2005. The witness testified in closed session because protective measures were being used by the court in accordance with Rule 36 of the ICD Rules of Procedure and Evidence. His testimony was not disclosed to the public.
On Tuesday, March 19, witness PW2 continued testifying in closed session, and upon conclusion of the prosecution questioning, the defense was given an opportunity to cross-examine him.
Wednesday, March 20, opened with high anticipation of a ruling on Kwoyelo’s bail application. Kwoyelo applied for bail on October 2, 2018, in accordance with Rule 54 of the ICD Rules of Procedure and Evidence. A ruling on the bail application was, however, adjourned to March 26.
“This court was supposed to come up with a ruling [on the bail application], however the ruling is not yet ready, and the reasons are obvious. [Court sessions] have been ending late. It will however be ready and delivered on the March 26, 2019 at 11:00am. It will be in Kampala because we are not going to be here [Gulu],” announced Justice Kiggundu.
After this ruling, the court adjourned for two hours before continuing with the testimony of witness PW2, who continued being examined by the defense.
On Thursday, March 21, the defense continued cross-examining prosecution witness PW2 entirely in closed session. The defense completed its questioning of witness PW2 at 15:50pm.
After the completion of witness PW2’s testimony, the court adjourned proceedings to June 24, 2019 when the prosecution will be expected to present its third witness. No explanation was immediately forthcoming for the long adjournment.
Bail Application Denied
On Tuesday, March 26, a ruling on Kwoyelo’s bail application was delivered by Justice Jane Kiggundu at the High Court in Kampala.
Kwoyelo’s defense lawyers listed eight grounds in support of his bail application, including, but not limited to: Kwoyelo has a right to apply for bail as provided for in Uganda’s constitution and the ICD Rules of Procedure and Evidence; Kwoyelo has a fixed place of abode at residences of his benefactors, who include John Baptist Odama, the Archbishop of Gulu, and Gilbert Olanya, a member of parliament; and the defense would produce substantive sureties who would ensure that he appears in court and answers the charges against him.
In response, the prosecution listed over 20 grounds in contestation of Kwoyelo’s bail application. The prosecution noted that most of the incidents happened in Pabbo, Kwoyelo’s home area, thereby creating close proximity between the witnesses and the accused. They also argued that Kwoyelo is indicted with 93 counts of capital offenses that are all grave and serious, involving deaths, rape, robberies, and injuries. Therefore, the likelihood of the accused escaping if granted bail is very high. In addition, there are witnesses in the case who are aggrieved with the accused and have threatened to lynch him should he be released.
The prosecution further noted that the counsel for victims had not had the opportunity to consult victims on the matter.
In her ruling on the bail application, Justice Kiggundu summarized the issues at hand into four categories or questions.
“Four subsidiary questions arise,” she noted. “If released on bail, will the accused turn up for his trial? Will he interfere with state witnesses? Will he commit further crimes? Will his release be in public interest?”
On whether the accused would turn up for trial, the court ruled in the negative.
“Whether the accused will stand trial if released on bail is a function of a number of factors which include the gravity of the offences, the likely penalty in case of conviction, whether or not the applicant has a known address and the tangible interest within the court’s jurisdiction and the quality of sureties furnished,” read the ruling. “There can be no doubt, going by the likely penalties in the event of conviction, the offences are grave.”
The court also cast doubt on some of the sureties presented by Kwoyelo, noting that they would not be able to ensure he attended court.
“Some of the sureties have suspicious histories looming in the background, bringing their substantiality into question,” read the ruling in part. “They live far apart and the submission by counsel for applicant that the sureties collectively would ensure that the applicant meets bail conditions or terms sound untenable. They are therefore not substantial because they may not be in position to compel him to attend trial once released on bail.”
On whether or not Kwoyelo was likely to interfere with witnesses, the court ruled in the affirmative.
“The investigating officer averred that the atrocities allegedly committed by the applicant happened in Pabbo, Amuru… This happened to be the home area of the applicant and hence there is a likelihood of interfering with witnesses,” stated the ruling.
The court further agreed with the prosecution that the disclosure of evidence had already been made to the defense, thereby giving Kwoyelo sufficient room to identify some of the witnesses and possibly harm them.
The court also noted that the trial had already commenced, and the accused had already seen and known some of the witnesses, hence increasing his chances of interference.
On whether Kwoyelo’s release would be in public interest, the court ruled in the negative.
“Courts are to exercise judicial power in the name of the people, in conformity with the law, values, norms and aspirations of the people. The court notes that this is a case of great public interest at national, regional and international level,” stated the ruling. “Considering the seriousness of the case, the severity of the offences and the antecedents of the applicant, it will neither be in the interest of the public nor the administration of justice for the applicant to be allowed bail.”
On the above basis, Kwoyelo’s bail application was denied. The trial will resume on June 24, 2019.
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.