Kwoyelo Trial Update: Defense Challenges Use of Closed Sessions and Medical Examination Report

The trial of Thomas Kwoyelo, a former Lord’s Resistance Army (LRA) commander, continued before the International Crimes Division (ICD) of the High Court of Uganda sitting in Gulu. In marathon sessions held Monday through Thursday this week, the court heard testimony from four prosecution witnesses. The trial has now been adjourned to September 30 to allow the prosecution to make redacted disclosure of information to the defense.

Kwoyelo is facing 93 charges for war crimes and crimes against humanity allegedly committed between January 1995 and December 2005 in northern Uganda. His trial commenced in September 2018, however, it has been marked with delays. For more background information, see the last trial update.

Below is a summary of the proceedings that took place the week of July 15.

Monday, July 15: The Defense Disputes Medical Examination Report by Uganda Police Surgeon

Proceedings began with a cross-examination of witness PW3 by the defense in the morning session followed by a lunch break. Witness PW3 testified in a closed session.

In the afternoon, proceedings resumed with testimony from Mr. Byaruhanga Moses, the fourth prosecution witness, alias PW4. Byaruhanga testified about a medical examination of Kwoyelo that he allegedly conducted in May 2009 in his capacity as a police surgeon and head of the health services department of the Ugandan Police. Byaruhanga said that he received his medical degree from Makerere University in Kampala and a diploma in forensic pathology from the University of Johannesburg in South Africa. He testified that he had previously worked with the United Nations Mission in Timor-Leste, and his responsibilities included conducting autopsies, exhumations, medical examinations of accused people, and giving testimonies in courts of law.

Regarding the medical examination of Kwoyelo, Byaruhanga testified that he examined the accused in 2009, confirmed him to be about 37 years old at the time and in good health without any physical injuries. His examination also revealed that Kwoyelo suffered no mental defects. Following his examination, Byaruhanga wrote two reports. The reports were admitted into evidence at the prosecution’s request.

On cross-examination, the defense disputed the testimony and the medical reports. According to the defense, Byaruhanga’s reports were false because Kwoyelo claimed to have never met Byaruhanga. 

“The accused has clearly stated that you have never met, and he is embarrassed to see you dressed smartly saying you examined him,” said Evans Ochieng, one of the defense lawyers.

The defense further noted that the reports indicated no evidence of interpretation during the medical examination. The examination was conducted in English, a language Kwoyelo does not understand. Further, the reports did not indicate the list of questions used. The defense also noted that while Byaruhanga claimed to have found no injuries on Kwoyelo’s body, the medical reports acknowledged the presence of three scars on his upper body but did not explain why. The defense noted that at the time of his arrest, Kwoyelo had severe injuries and had to undergo a medical operation and recuperation for one year before recovery, which the report did not acknowledge. Finally, the defense questioned Byaruhanga’s qualifications to conduct mental examinations given that he is not a psychiatrist.

Tuesday, July 16: Witness PW5 Concludes Testimony

The prosecution called their fifth witness, alias PW5, who testified in a closed session. Witness PW5’s testimony lasted the whole day. Members of the public were allowed to sit in a tent outside the courtroom where the previous day’s proceedings were played on a television screen.

Wednesday, July 17: Defense Challenges Use of Closed Sessions; Proceedings Interrupted by Ill-Health of Court Assessor

On July 17, the defense concluded its cross-examination of witness PW5 in a closed session.

The prosecution announced that their next witness, alias PW6, would also testify in closed session. This provoked a protest from the defense, who challenged the use of closed session before the commencement of witness PW6’s testimony. However, before the defense could present their argument, one of the court assessors suddenly fell ill, prompting the judges to adjourn proceedings.

Court assessors were appointed in March 2019 based on ICD Rule 30(1), which states that “At the commencement of the trial and after the preliminary hearing has been concluded, the Trial Judge or Trial Panel may appoint a maximum of three assessors to assist the Court with the trial.” Court assessors are non-lawyers, preferably retired government civil servants, who advise and help the court reach a decision. Their opinions, however, are non-binding upon the judges. The court appointed four court assessors for Kwoyelo’s trial. At the beginning of the current session on July 1, one of the court assessors excused himself due to a medical condition. Wednesday’s incident, therefore, meant that the court had only two assessors left.

Thursday, July 18: Video Link is Provided for Public Viewing; Proceedings Adjourned to September 30

Proceedings started with the defense asking the court to allow the public to follow proceedings. Public participation has been a cause of concern since witnesses started testifying.

“The public should hear and know what is happening in the courtroom because they are part of the court. They should be able to know whether what is being spoken is true or not true,” said Dalton Opwonya, one of the defense lawyers.

In response, the prosecution informed the court that a video link had been put in place for the public to follow proceedings from outside the courtroom.

Therefore, for the first time, the public was able to follow the testimony of a protected witness using video link that was installed in the tent outside. To protect the identity of the witness, the court used voice distortion and concealed the witness’s face from the camera. The judge reminded both the defense and the prosecution to strictly refer to the witness by using the pseudonym given and refrain from discussing proceedings outside the courtroom.

Witness PW6, a widow, testified about circumstances under which her husband was murdered during the war between the government and the LRA. Throughout her testimony, the voice distortion worked well although the sound was not very clear. It was often difficult to accurately hear the details of her testimony. Nevertheless, the over 50 members of the public seemed impressed with the new development. After the prosecution concluded their questions, she was cross-examined by the defense. PW6’s testimony lasted for about two hours.

The prosecution then called their next witness, detective Sergeant Odong, a police officer who was said to have visited the crime scene and investigated the circumstances previously referred to by witness PW6. The defense objected, arguing that the prosecution had not served them with the redacted details of evidence presented by the witness. The redacted information includes pictures and sketches of the crime scene. This led to a short break to enable the judges to meet both parties in chambers.

When proceedings resumed later in the day, the prosecution requested an adjournment to September 30, 2019, to allow time for providing redacted information to the defense. The prosecution also noted that they had run out of funds. The defense objected to the long adjournment, pointing out the need for an expeditious trial.

The court ruled in favor of the prosecution. The trial is scheduled to resume on September 30.

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.

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