Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) who is currently being tried by the International Crimes Division (ICD) in Uganda, has requested that his case be transferred to the International Criminal Court (ICC). Kwoyelo made the request while appearing before the ICD sitting at the High Court in Gulu on Monday. He blamed the slow pace of trial proceedings for his request.
At the same hearing, Komakech Henry Kilama, the counsel for victims, threatened to pull out of the trial due to failure by the ICD to provide remuneration and facilitation to the victims’ lawyers. The defense and prosecution also submitted their arguments in response to a bail application by Kwoyelo’s lawyers.
Kwoyelo, a former commander of the LRA, is facing 93 charges of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005. Kwoyelo has been in detention since his capture in 2008. Justices Jane Persis Kiggundu, Duncan Gaswaga, and Micheal Elubu are presiding over his trial.
Kwoyelo’s trial has been synonymous with postponements and delays. Kwoyelo first appeared before the ICD in 2011. The start of his trial was first delayed due questions over whether or not he was entitled to amnesty under Uganda’s amnesty law, which was valid at the time of his capture. In 2015, the Supreme Court ruled that Kwoyelo’s trial did not violate the amnesty law.
In 2016, three pre-trial hearings were held in April, August, and September, all in a bid to have the charges against him confirmed but to no avail. In 2017, three pre-trial hearings were held in January, February, and March, but the charges against him remained unconfirmed.
In June 2018, a hearing was postponed due to lack of quorum by the defense lawyers, and another hearing scheduled for July 23 was postponed purportedly due to lack of funds. On August 30, the ICD finally confirmed the 93 charges against Kwoyelo, thus marking the end of the pre-trial phase, paving way for the main trial.
On September 24, 2018, the main phase of the trial commenced before the ICD sitting at the High Court in Gulu. However, the proceedings were postponed to November 5, following an objection by Kwoyelo’s lawyers that the indictment had not been properly translated into the Acholi language. At the November 5 hearing, Kwoyelo’s lawyers applied for bail, but a hearing on the subject was adjourned after the lawyers failed to produce substantive sureties.
From November 12 to 15, the trial resumed in Gulu, and after two days, Kwoyelo entered a not-guilty plea. The court also made a ruling on victims’ participation by accepting the applications of some victims to participate in the trial. Kwoyelo’s bail application was adjourned to January 18, 2019, and the trial start date was set for February 4, 2019, when the prosecution was expected to make their opening statement.
On January 18, Kwoyelo’s bail hearing did not take place because his sureties mistakenly traveled to Gulu instead of appearing at the ICD in Kampala. For this reason, the defense requested for an adjournment to February 4.
On February 4, neither the bail hearing nor the prosecution’s opening statement took place. The trial was then adjourned to March 11 on the request of both the prosecution and the defense lawyers. The prosecution reportedly needed more time to prepare their opening statement, while the defense had other engagements in the appellate court.
Kwoyelo: “I Have Been Severely Denied Justice”
When the trial finally resumed on March 11, Kwoyelo through his lawyer, asked to make a statement and requested that his case be transferred to the ICC.
“I have been severely denied justice …. I have been in prison for 10 years now. Therefore, with due respect to this court, I request that my case be transferred to the ICC because I want it to be completed because this court is handling my trial so slowly and yet other cases have progressed faster than mine,” said Kwoyelo. He cited examples of cases such as the Al-Shabaab bombings of 2010 and the trial of Jamil Mukulu before the same court, all of which he claimed progressed faster than his.
In response, the prosecution acknowledged that there had been a delay but noted that they were ready to proceed.
“It is true that there has been a delay in his trial, but it is because this case has a special history. In 2010, the accused and his team opposed the trial and it was referred to the Court of Appeal. All this took time and explains the delay,” said prosecution lawyer Charles Kaamuli. “Since 2010, the prosecution has been ready to proceed, and even today we have summoned six to seven witnesses,” he added.
The prosecution further argued that for Kwoyelo’s case to go to the ICC, it had to follow the right procedures.
“Referring a case has procedures that should be followed, but not on court orders,” argued prosecution lawyer William Byansi. “As prosecution we ask that this case be heard in Uganda.”
The court ruled in favor of the prosecution. “The prosecution has given reasons to proceed at the ICD and has actually summoned witnesses while the defense is also ready to proceed, so the trial is on,” ruled Justice Kiggundu.”
Kwoyelo also accused one of the prison guards of assaulting him. “This morning when I was wearing my shoes to come to court I was assaulted by a female prison officer who pushed and slapped me,” said Kwoyelo.
The prosecution, defense, and judges were unanimous in condemning the alleged assault and promised to investigate.
“The assault allegation is very unfortunate and regrettable and should be reported, investigated, and prosecuted. I will personally follow-up with the defense and report the incident to the commissioner of prisons,” said Charles Kaamuli.
“If true, then it is regrettable, and the culprit must be found. The prosecution and defense lawyers will investigate and submit a report. [The] court directs that investigations proceed and a report be filed to the court,” ordered Justice Kiggundu.
Remuneration for Lawyers
Another issue that came up at Monday’s hearing was remuneration for the defense and the victims’ lawyers. Two sets of lawyers currently represent Kwoyelo: one appointed by the court and the other on private brief. The victims counsel and the defense lawyers appointed by the court are supposed to be paid by the government, but this appears not to be happening.
“The [Ugandan] government has failed to fund [Kwoyelo] for his defense; they say there is no money to do it. If the government cannot support him, then it doesn’t support complementarity and that is why I support the view of him being transferred to the ICC,” noted Charles Dalton Opwonya, one of the defense lawyers.
It also emerged that one of the victims’ lawyers was not able to travel to Gulu due to lack of assistance. As a result, victims’ counsel Komakech Kilama threatened to withdraw from the case. “For a smooth trial all parties must be facilitated at least to minimum standards possible,” said Komakech Kilama. “Why start up a trial when there is no money? If court feels like proceeding without victims’ representatives, then it should discharge victims counsel.”
Caleb Alaka, another one of Kwoyelo’s lawyers, then requested that the lawyers who are on private brief be appointed as state brief by the court.
In its ruling, the court ordered that Kwoyelo’s lawyers who were on private brief be appointed on state brief and remunerated by the court. The court also noted that the concerns of the victims’ lawyers would be addressed during the trial.
The final issue heard by the court on the opening day was Kwoyelo’s bail application, which was submitted earlier in 2018.
Defense lawyer Charles Opwonya requested court to grant the bail application, arguing that his client had been in detention for 10 years, citing rule 54 of the ICD Rules of Procedure and Evidence that provides for the granting of bail.
Defense lawyer Caleb Alaka further argued that Kwoyelo was the longest known accused in Uganda to have stayed for 10 years in prison without being convicted.
“He was abducted while in primary three, and it appears that he has been in prison all this years because escaping has never been an option for him. Government failed to protect him, otherwise he could have become a lawyer or doctor, but he has been in abduction since then,” argued Alaka.
In support of his bail application, the defense presented four sureties: Gilbert Olanya, a member parliament; Olanya Alfred, a retired teacher and cousin of Kwoyelo; and two other relatives, a sister and a cousin to Kwoyelo. The prosecution objected to the bail application.
“The case is already at trial stage and prosecution witnesses have already been summoned, and the accused is charged with serious offenses, which attract serious punishment. It is very risky to grant bail to such a person,” noted Charles Kaamuli.
Judges deferred a decision on the matter until next Wednesday.
Kwoyelo’s trial will continue for the next two weeks where the prosecution will expected to make their opening statements and start presenting witnesses.
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.