Kwoyelo Trial Update: Trial Resumes; Court Denies New Investigations into Assault Claims

Last week, the trial of Thomas Kwoyelo, a former Lord’s Resistance Army (LRA) commander, resumed before the International Crimes Division (ICD) of High Court of Uganda. The resumption of the trial came after more than a three-month break and saw the presentation of testimony from two prosecution witnesses. Witnesses PW2 and PW3 both testified in closed session, and their testimonies were not disclosed to the public. The court also denied a defense request for new investigations into claims that a prison guard assaulted Kwoyelo earlier this year. The trial, presided over by a panel of four judges, Duncan Gasswagga, Micheal Elubu, Jane Kiggundu, and Stephen Mubiru, will resume on Monday, July 15. Below is a summary of last week’s proceedings.

Background

Kwoyelo is facing 93 charges for war crimes and crimes against humanity allegedly committed between January 1995 and December 2005. He has been in detention since his capture in 2008. Kwoyelo first appeared before the ICD in 2011, however, the start of his trial was 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. After the Supreme Court of Uganda found that his trial could proceed, the ICD held three pre-trial hearings in April, August, and September 2016. This was followed by three pre-trial hearings in 2017, and two pre-trial hearings in June and July 2018, respectively. On August 30, 2018, the ICD confirmed 93 charges against Kwoyelo, thus marking the end of the pre-trial phase and paving way for the main trial.

The main phase of his trial started on September 24, 2018 but was postponed when defense lawyers argued that Kwoyelo had not been provided a translated copy of the charge sheet. From November 12 to 15, 2018, the trial resumed in Gulu, and Kwoyelo entered a not guilty plea.  The court also made a ruling on victims’ participation, but a hearing on Kwoyelo’s bail application was postponed to January 2019.

Hearings continued in March of this year, in which Kwoyelo requested a transfer to the ICC citing slow trial proceedings and accused a prison guard of assault. From March 12 to 14, the prosecution made their opening statements and called their first witness, PW1, who testified on the contextual and historical background of the conflict in northern Uganda. From March 18 to 21, the second prosecution witness, PW2 testified in hearings that were closed to the public. On March 26, the ICD denied Kwoyelo bail, and the trial was adjourned to July 1.

Monday, July 1: The Court Examines Assault Allegations

On July 1, the defense opened the hearing by demanding a report on the assault complaints made by Kwoyelo against a prison guard who allegedly “pushed and slapped” him in March moments before going to court. The prosecution responded that the prison authorities had investigated the matter and issued a report to the court registrar. The court then ordered the registrar to serve all parties with the report.

After scrutinizing the report, the defense rejected it on grounds that the prison authorities should not have been the ones to investigate allegations against their own personnel. The defense requested that an external and neutral entity, such as the Uganda Human Rights Commission (UHRC), conduct a new investigation. The defense further noted that some phrases in the report were “unkind” to the accused. They cited a section of the report that read: “We are aware that prisoner Kwoyelo appears to be frustrated and stressed, and as a result we shall endeavour to handle him with utmost care. We shall also encourage our staff to handle him with care.”

The defense then requested an adjournment on grounds that their lead counsel, Caleb Alaka, who was expected to conduct cross-examinations was not present. The defense explained that Alaka had other commitments in the Court of Appeal. While the court granted the defense request, they also noted that it did not serve justice. Proceedings were then adjourned until the next day.

Tuesday, July 2: Prosecution Witness Testifies in Camera; Leaking Roof Disrupts Proceedings

When the court resumed on the morning of July 2, the judges announced that a ruling on the defense’s request for an independent investigation on Kwoyelo’s assault complaint would be delivered in the afternoon.

The court then ordered observers and the press to leave the courtroom to enable the second prosecution witness, also known as witness PW2, to testify in a session closed to the public, also referred to as “in camera.” Witness PW2 testified earlier in March, however, his testimony was incomplete. The court allowed him to continue testifying in camera as he had done earlier.

This decision was in line with rules 35(2) and 36(1) of the ICD Rules of Procedure.  Rule 35(2) states that the trial judge or trial panel may place restrictions on the presence of the media and the public during proceedings and access to information in the interest of victims and witness protection, security and confidentiality and rule 36(1) provides that the trial judge or trial panel may, on the motion of the prosecution or the defense, or at the request of a witness or a victim or his or her counsel, or on its own motion, order measures to protect a victim, a witness, or another person at risk on account of any proceedings before the court.

When the court resumed in the afternoon, proceedings were hindered by a leaking roof that displaced the defense team, the legal counsel for victims, and some members of the public. As a result, the judges adjourned proceedings to the following day.

Wednesday, July 3: Court Denies New Investigations into Kwoyelo Assault Allegations

When proceedings resumed the following morning, the judges delivered their decision on the defense request for new investigations into an incident where a prison guard allegedly assaulted Kwoyelo in March of this year. The ruling noted that the Uganda Prison Act clearly stipulates a proper procedure for disciplining prisons staff and that prison authorities are mandated to carry out appropriate disciplinary actions on its officers. Based on this, the judges concluded that the court would require substantive evidence of irregularity leading up to the findings of the report as a basis for ordering fresh investigations. With no such irregularities found, the court declined to order new investigations.

Following this ruling, observers and the press were again asked to clear the courtroom to allow protected witness PW2 to continue his testimony in camera. PW2’s testimony ran until the court adjourned for the day.

Thursday, July 4: Third Defense Witness Testifies in Closed Session

On July 4, the prosecution called their third witness, who testified via video link. The public and press were again excluded from the courtroom, and the testimony of witness PW3 was not disclosed.

Friday, July 5: Court Adjourns Proceedings to July 15

On July 5, witness PW3 continued her testimony, which continued in closed session with observers and the press not allowed in the courtroom. After her testimony, court officials informed the public that hearings had adjourned until Monday, July 15, when the trial would resume for another two weeks before taking a long break. The reason for the one-week adjournment was to enable one of the judges to get medical treatment.

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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