Complementarity Reality Check: The Case of Uganda’s International Crimes Division

We are increasingly seeing calls for national judicial systems to step up their accountability efforts. Domestic judicial systems are closer to the communities affected by mass atrocities and provide opportunity for greater ownership of the justice process. It is this pragmatic approach that likely informed Article 17 of the Rome Statute, which stipulates, among others, that the International Criminal Court (ICC) will only intervene where a state is unwilling or unable to try the alleged perpetrator of grave crimes falling under the court’s jurisdiction. The establishment of the Uganda’s International Crimes Division (ICD) was an important milestone because is created a mechanism to allow for domestic trials of perpetrators of such crimes.

On July 11, 2011, Thomas Kwoyelo became the first suspect to appear before the ICD in Uganda. Close to nine years later, his trial is still ongoing. In an interview for International Justice Monitor last week, Kwoyelo’s lead defense lawyer Caleb Alaka discussed his experience representing a man whose trial has been the subject of several complementarity articles by scholars and experts. We hope his insights will help readers appreciate the realities of domestic judicial systems and at the same time, enable them to formulate realistic recommendations on how to improve such processes.

Sharon Nakandha (SN): What inspired you represent Thomas Kwoyelo?

Caleb Alaka (CA): I grew up in the era of child “commuters.”[i]  As a young practicing advocate at the height of the LRA [Lord’s Resistance Army] rebellion, I used to watch these children commute to sleep in the streets of Gulu town. Later in 2008, following my appointment as the LRA legal counsel during the Juba Peace Talks, I had to travel to Garamba in the Democratic Republic of Congo, where the LRA camp was based. During this time, I interacted with many LRA child combatants, and all their stories were of abduction as children. I was inspired to represent Thomas Kwoyelo because I realized that all the abducted children were initially victims, and the government failed to protect them. A typical case was that of Kwoyelo, a boy abducted in 1987 at the age of 13 while on his way to Pabbo primary school.  Many of the children who grew up in the bush ended up assuming command and eventually became villains. I saw so many Kwoyelos in the LRA ranks.   

SN: Did you take on the case pro bono?

CA: It was entirely pro bono. It is only now during the trial that the ICD has appointed us as lawyers on state brief.[ii] This only started last year, but for the last nine years, I have been representing him entirely on a pro bono basis.

SN: How long has your client been in custody and could you please describe his current detention conditions?

CA: Kwoyelo has been in custody since his 2008 capture in the bushes of Garamba. This is a total of 12 years. Of course, he is very traumatized. He believes that justice has been delayed, and there are moments he had even thought it could have been better if he was taken to the ICC. His mental status is not OK at all. COVID-19 has worsened his situation. He is not in a good state of mind, but the only good thing is that ever since the trial took off  last year, he has a sense of hope. At least he now knows his trial has taken off, and he believes it will be concluded very soon.

SN: What has caused the extensive delay in concluding the case? Along the way, we have seen the ICD start and conclude some terrorism cases. What makes Kwoyelo’s case different?

CA: I think the first thing that caused the delay was our Constitutional Court Reference in 2011.[iii]

When we filed the constitutional reference, the Constitutional Court ruled in our favor and said Kwoyelo was entitled to amnesty like any other former LRA combatants who previously applied for it, for example, Brigadier Banya and others. Upon the decision of the Constitutional Court, the ICD stopped considering the case, then immediately thereafter, we applied in the High Court to compel the government to release Kwoyelo. The Attorney General then appealed, and this appeal took close to five years. The Supreme Court only rendered a decision in 2015. That Supreme Court appeal caused substantial delays. After that, some of the ICD judges had retired and there were issues of funding. There was also the issue of the pre-trial hearing, which took close to two years. The delays have therefore been about the usual delays we have in our judicial system.

SN: Why were the terrorism cases handled faster than Kwoyelo’s case?

CA: Indeed the terrorism cases have been handled faster than Kwoyelo’s case. Initially, we saw very little initiative on the part of the ICD to deal with this Kwoyelo case. Later on, the judiciary took the decision to hold this trial in Gulu and not Kampala for purposes of proximity to the affected populations. This presented logistical challenges, and coupled with the ICD’s funding challenges, it caused additional delays.

At the time, the judiciary’s leadership had a limited appreciation of the whole process, which only picked up during the reign of Justice Moses Mukiibi, who then retired.  It later properly took off and the ICD became extremely serious during the reign of Justice Dr. Henry Peter Adonyo. I am not saying that previous justices were not serious, but I am also looking at the aspect of commitment—finally the judiciary, the Principle Judge, the Chief Justice, all of them then took the case a little bit more seriously. That is when we began business.

I think the whole delay was an internal matter within the judiciary, which I cannot really explain because Justice Owiny Dollo, the current Deputy Chief Justice, while at the ICD had singlehandedly handled the Kampala bombings case and delivered one of the best judgments. I think the delays were caused largely by internal issues—issues to do with funding and the ICD rules of procedure and evidence. It was the first time these rules were coming into play. You must recall that unlike the Kwoyelo case, the court did not strictly handle the terrorism cases under the ICD rules. Other issues included the new concept of victim participation, issues related to constituting counsel for Kwoyelo, et cetera. The court needed to address all these things. 

Finally, I think it was significant that we got a proper stakeholders’ forum, which now involved the ICD justices (especially the four of them who were presiding over the matter), we the defense counsel, the prosecution, the victims’ counsel, and Margaret Ajok, the Justice Law and Order Sector transitional justice technical advisor. After this forum, we became more organized and robust, and this is why the trial took off.

SN: Over the years, we have witnessed changes to Kwoyelo’s legal team. What caused these, and have they affected his defense?

CA: Initially, Kwoyelo was represented by myself, Nicholas Opiyo, and Onyango Owori. Eventually, Mr. Onyango Owori went for further studies, and then [the] court appointed Mr. Charles Dalton Opwonya. When the court moved the hearings to Gulu, our team expanded to include me, Evans Ochieng, Charles Dalton Opwonya and Geoffrey Borris Anyuru. The dropout of Nicholas Opiyo and Onyango Owori did not affect Kwoyelo’s defense because the new team was given all the necessary disclosures, and Kwoyelo has briefed and instructed them properly. To the best of my knowledge, the new team is doing a superb job.  

SN: In 2018, the African Commission ordered the government of Uganda to pay compensation to your client for the violation of Article 3 (right to equality before the law and equal protection of the law) and 7(1)(a) and (d) (Fair Trial) of the African Charter. Has this decision been implemented? If not, what are some of the challenges you foresee in ensuring its implementation?”

CA: Implementation of this decision has not yet happened. The challenge has been that of local cooperation with the Attorney General. Ordinarily once such a decision is made, the Attorney General has to agree with Kwoyelo’s team on the quantum of compensation. Unfortunately, there has been no such cooperation. I think the next course of action, which we had intended to take before the COVID-19 pandemic, was to go to court and get enforcement of that decision through our local court system. We still intend to take that step.

SN: As you noted earlier, the new ICD rules of procedure introduced victim participation. This concept is also part of the ICC system. How has it worked out so far in Kwoyelo’s trial? 

CA: This is the area where there has not been much progress. The victims’ counsel filed the relevant victim participation applications, but there have been no decisions on those applications. There have been questions as to who these victims are, and we do not know how the judges will handle this issue.  

The two victims’ counsel have tried their level best. There have also been challenges of funding as well as outreach. All those things have negatively affected the process. We hope that as soon as the court considers that and makes rulings on the applications made by victims’ counsel, we shall now start seeing proper participation.

The question has been “at what level are these victims participating?” Are they going to come at the time of reparations? We had thought that the victims were going to participate throughout the trial. However, the trial has been more or less like the old adversarial system where you have the prosecution and defense. But once those decisions on the victims’ applications are made by the ICD, I think the victims’ counsel will have a smile. I also see frustrations on their [victims’ counsel] faces because they sit in court like spectators. It is a learning process, but I think that at the end of the day we have vibrant justices who are committed to seeing this trial through. I think this is the first proper ICD matter where the rules are being followed. I think when it comes to the next cases; we will have got actual experience and learnt from the Kwoyelo case.

SN: With the outbreak of the COVID-19 pandemic, we have seen accused persons making temporary release applications. Are there any plans to make a similar application for your client? 

CA: Yes, I received information from the prisons. Kwoyelo was instructing us to apply for bail to have him released temporarily because he does not know when this Covid-19 situation is going to normalize. We need to move ahead and file the relevant application. If all goes well, by next week [week of June 21, 2020], we will have filed the relevant application.

SN: Is he applying for bail because of COVID-19 or because he has been in custody for a long time?

CA: Initially, he had applied for bail, but his biggest problem was sureties and where he will be staying. This was last year. He is trying to engage some Parliamentarians from the Greater Northern Uganda who could give him the guarantee as to where he will stay, and once that is sorted, he will apply for bail. He has been in detention for the last 12 years. If he was being tried in an international court, the time he has spent in jail would be equivalent to him having served his sentence. He has also looked at that [Covid-19] aspect. He has opined that he could fall sick. He is applying for bail on both aspects, the Covid-19 aspect and the reality that he has been in jail for this whole period.

SN: At one point, your client requested his trial to be transferred to the ICC. Why did he think that it was better?

CA: He had thought it was better for him to go to the ICC because, honestly, his trial had never taken off. Then he used to look at Dominic Ongwen, and to him, Ongwen’s trial was progressing. He [Kwoyelo] wondered why despite his early capture, there was no progress with his trial. It is for this reason that he preferred the ICC. Since the trial began, his mind has settled for the ICD. 

SN: Which of the two courts, ICC or ICD, do you believe is better placed to deliver a fair trial for your client? And why?

CA: Ordinarily, one would have just expected that the ICC would be in a better position, but I have followed these proceedings, and I believe the ICD can give justice to my client. We have good judges, and one can clearly see that they are very fair. Even if we raise issues concerning him and how he is being treated in prison, they have handled those issues quite fairly. I believe they are in a good position to fairly adjudicate on the matter.

SN: What recommendations do you have to improve fair trial protections in domestic trials of international crimes?

CA: The first problem with domestic tribunals is the issue of funding because we had even thought that if there was funding,  we would have had Kwoyelo’s matter scheduled for six months on a day-to-day basis and  witnesses would have appeared, and I am very sure Kwoyelo’s matter would have been concluded.  I think the issue of funding of domestic tribunals, especially in international criminal cases, is a very big one. I really thought the ICD should not have been a division of the High Court [of Uganda]. It would have been better if it was more like the Industrial Court. Although people at the level of judges run it, the Industrial Court is more or less independent. If [the] ICD was not a mere division of the High Court, I have a strong belief that it would have been faster.

The good news is that we have a new Principle Judge who understands the ICD’s issues. We also have a new Permanent Secretary to the Judiciary, and of course we hope that the judiciary treats the ICD not as a court where their Lordships who are intending to retire go…If they treated it as a court, which merits the seriousness that it deserves and funded it properly, this could be one of the best courts in the whole of Sub-Saharan Africa. I think it could even have the capacity to complement the Rome Statute in Africa. Other warlords, who fear going to the ICC, could be tried here in Uganda under the ICD.

We have had numerous trainings, and there will be a need for further trainings to interest more lawyers. A few lawyers are interested in international criminal law, so we need to increase these numbers.  Extension of investigations is also important in order to ensure that there are more cases brought before the court [ICD]. Currently, the ICD is only associated with Thomas Kwoyelo. The truth, however, is that this is a very good arrangement that can fight impunity within sub-Saharan Africa. 

SN: Based on your experience, what do you see as the future of international crimes prosecutions in Uganda? Are there any particular opportunities or challenges that can be harnessed or remedied?

CA: I see a bright future for international crimes prosecutions in Uganda. The DPP [Directorate of Public Prosecutions] has the capacity— they have well trained prosecutors, and then we now have a number of well-trained lawyers. We have also have faith in the [ICD] because of the commitment of the Registrars who have so far been posted to the Division, from Her Worship Harriet Ssali to Her Worship Esther Nsambu and the current Registrar, Her Worship Stella Beatrice Atingu.

However, the main challenge is that the judges are not handling these cases full time. For instance, right now some of the justices working on the Kwoyelo panel are also working in other divisions of the judiciary. For example, Justice Michael Elubu is the acting head of the Civil Division. Justice Duncan Gaswaga is also a Deputy Head of the Commercial Division. They removed Dr. Adonyo from the ICD, and he is now the head of the Commercial Division. You find Justice Steven Mubiru is the Resident Judge in Gulu, so next time you do not know where he will be. If the judiciary got a dedicated team, which was only focused on ICD cases, I want to assure you, the future of the ICD would have been very bright. Moonlighting is a major challenge. On one occasion, you will find a judge on this panel and the next time, they will be in another division. Judges in Uganda are extremely busy, and so they end up overstretched. One therefore wonders how they get time to handle these complex international crimes cases.

SN: What has been your relationship with the Prosecution? How has it affected fair trial standards?

CA: There are aspects where our client is not getting a fair trial. For instance, I will begin with the issue of outreach. Up to now, because of lack of facilitation, we have not been able to conduct our own outreach to secure witnesses. This works against Kwoyelo.

Besides that, there are other aspects, for instance, his defense is supposed to begin right now by [conducting] vibrant research. Because the funding is not sufficient, that research is not available. Largely, the whole structure of the ICD has not reached that level where you can say with certainty that Kwoyelo has been accorded a free and fair trial.

In most cases, we agreed with the prosecution who want us to adopt the international standards of the ICC but unfortunately, this is without the means to achieve those standards. The beauty, however, is that there has been a lot of improvement from the initial stages, and we have learned from these experiences as defense counsel. We believe with time we are going to contribute to the ICD and continue to point out its weaknesses to ensure that it becomes the model in Uganda and sub-Saharan Africa.

SN: What have been your key achievements for your client since you started your case?

CA: The first key achievement is that the legal team is composed of some of the best criminal minds this country has. Secondly, as we explained during the stakeholders’ forum, we are not going to escort Kwoyelo for the purposes of a ceremonial trial. We are going to do our level best within the limited resources to represent Kwoyelo to our utmost best ability. We have withstood conditions, stayed in Gulu, made robust opening statements, made strong cross-examinations, unpacked some of the lies – and so from a technical perspective, at least Kwoyelo, is receiving the best.

The only limitation we have are those things which would have given us an edge such as access to other international authorities, in depth analysis of these authorities which the ICC has given, having a vibrant research desk, going out to the public on our own as defense counsel for Kwoyelo, gathering views, building our own defense. This aspect is lacking and most of it is because of the financial incapacity of the ICD. If we had that, then I want to assure you, we would have given the ICD something to the standard of the ICC.

[i] At the height of the conflict between the Government of Uganda and the LRA conflict, many children would leave their homes in the night to seek refuge on the streets in the urban centers and return home in the morning.

[ii] Under the state brief arrangement, Ugandan courts, in line with the requirement to ensure a right to fair trial, co-opt the services of an advocate, in private practice to offer legal services to accused persons who cannot afford to pay for them. This usually happens in respect of suspects charged with criminal cases that attract a death sentence or imprisonment for life. Under this arrangement, the Government of Uganda identifies legal service providers and pays for their services on behalf of the accused person

[iii] Under Ugandan law, constitutional references arise where, in the course of ongoing proceedings before a court of law, other than a field court martial, any of the parties or the court itself refers to the constitutional court, questions requiring interpretation of the Constitution.

Sharon Nakandha is a Program Officer with the Africa Regional Office of Open Society Foundations. She can be followed on Twitter @SherryKyama.