Dispute over Use of Closed Sessions Postpones Kwoyelo’s Trial

Last week, the International Crimes Division (ICD) sitting at the Ugandan High Court in Gulu indefinitely adjourned the trial of Thomas Kwoyelo. The adjournment comes barely a week after the trial resumed from a two-month break on September 30. The purported reason for the adjournment was to give the court time to resolve a disagreement between the defense and the prosecution over the use of closed sessions. This article provides a summary of the last hearings held from October 7 to 10.

Background

Kwoyelo, a former Lord’s Resistance Army commander, is facing 93 counts of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005 in northern Uganda. The main phase of his trial started on September 24, 2018. The first two prosecution witnesses testified from March 12 to 14, 2019. From July 1 to 18, the court heard testimony from five additional prosecution witnesses. The seventh and eighth prosecution witnesses appeared from September 30 to October 3.

October 7 – 10: Two Prosecution Witnesses Testify

On October 7, the prosecution called their ninth witness, PW9, who entered the courtroom disguised in a long white traditional frock (popularly known as a Kanzu in Uganda), a heavy black sweater with a hood, and sunglasses. The prosecution explained that this was to protect the witness, who had expressed a fear of being identified by the public and the accused person. The defense did not object these measures, however, shortly after PW9 was sworn in to testify, the public was asked to leave the courtroom with the promise that they would be reinvited when the sensitive part of the testimony was completed. PW9 completed his testimony in a closed court session in the morning of October 8.

In the afternoon of October 8, the prosecution called their tenth witness, who also testified in a closed court session for the rest of the afternoon. There were no sessions on October 9, which was a public holiday in Uganda. Thereafter, the same prosecution witness continued testifying in a closed court session on October 10. However, proceedings were cut short when the defense raised an objection to the frequent use of closed sessions, and the three-judge panel indefinitely adjourned the trial to resolve the issue.

Reactions to the Use of Closed Sessions

Seven out of 10 prosecution witnesses to-date have testified in closed sessions, a matter that has apparently riled the defense and the public who are interested in following proceedings. During a hearing earlier this year on July 17, the defense challenged the use of closed sessions.

The prosecution has relied on Articles 28 and 126 of the constitution of Uganda and Rule 36 of the ICD Rules of Procedure to apply for witness protective measures. Protective measures include concealing a witness’s identity, disguising a witness in the courtroom, using pseudonyms, and closing court sessions to the public. The prosecution has framed these protective measures as an attempt to protect witnesses while ensuring that the court obtains information and the trial goes on. The trial judges granted these protective measures because the prosecution team argued that the witnesses’ safety could be at risk.

The closing of the court sessions has, however, prevented the public from following proceedings since the trial resumed, resulting in complaints from those wishing to attend the hearings. Several people who have been coming to attend proceedings expressed disappointment when they were told to walk out of the court room because the day’s session would be held in a closed session. Some of these people had travelled a long distance to the courthouse.

One woman said that it was not realistic to hold closed proceedings.

“If you are telling the truth, why should you hide from the public?” she asked. “It shows that the witness is not telling the truth.”

Another man also expressed disappointment with the holding of closed sessions, which he said had discouraged many from attending the hearings.

“I think people have given up on following this trial because they are not allowed to enter the courtroom,” he said. “Even me, I stopped following it because we are always kept out. Can’t they find another way of protecting their witnesses rather than closing the room? Or even find a way of letting us know what is happening?”

The defense had also expressed similar concerns. “If protective measures like disguise and use of pseudonyms are in place, there was no need to exclude the public from the courtroom,” said Charles Dalton Opwonya, a defense lawyer.

According to the defense, holding the trial in closed sessions may affect the outcome. “The public will not trust it. The public will say ‘they closed themselves, conducted the trial, and made their ruling.’ People in Gulu have been following Ongwen’s trial in The Hague, yet they cannot follow this trial which is being conducted in Gulu,” Opwonya said.

With the frequent use of closed sessions, those who are interested in following the trial are disconnected despite the court’s proximity to the crime scenes and affected communities. For now, it is unclear when the trial will resume.

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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