Uganda: Bail application in the case of Thomas Kwoyelo before the ICD (11/03/2019)

BAIL APPLICATION IN THE CASE OF THOMAS KWOYELO BEFORE THE INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT IN GULU 11 March 2019 The International Crimes Division of the High Court of Uganda (ICD), sitting at Gulu, convened on 11 March 2018, for the third time to hear the bail application filed by the defence team in the case of Uganda vs. Thomas Kwoyelo alias Latoni.

The hearing resulted in yet another adjournment.

The presiding Judge was Justice Jane Kiggundu.

Present in court was the defence team (Dalton Opwonya, Caleb Alaka, Ochienge Evans and and George Anyuru), Prosecution team (Kaamuli Charles, Byansi William and Akello Florence) and the Victims lawyers (Komakech Kilama).

One of the sureties Hon Gilbert Olanya of Kilak South speaking to the defence lawyer and the Thomas Kwoyelo.

Place: International Crimes Division Date: 11 March 2019, 4:45pm -7pm Case Number: Case No 20 of 2018 Accused: Thomas Kwoyelo alias Latoni, former LRA commander Civil parties: Victims from Amuru District in Northern Uganda Summary of the case: Thomas Kwoyelo is a former commander in the LRA. He is facing charges before the ICD. The charges brought against the former war Lord include; crimes against humanity and violations of Article 3 common to the Geneva conventions under Customary International Law and other offences under the Penal Code Act of Uganda. It is alleged that these crimes were committed in Northern Uganda during the conflict between the LRA and the Uganda Peoples’ Defence Force (UPDF). The accused has been facing trial before the division since July 2011. The defence team filed for bail under Article 23(6)(a) of the Constitution of Uganda.

SUMMARY OF HEARINGS The adjourned bail application hearing for Thomas Kwoyelo alias Latoni dates back from the 18 January adjournment that the Court gave on 27 November 2018 before Justice Jane Kiggundu at the High Court premises at Gulu.

Under Ugandan law, it is a constitutional right for an Accused to apply for bail. However, it is in the discretion of the Court to grant bail and as such it is not an automatic right until the accused satisfies the condition started in law.1 Therein, the Court is empowered to grant bail to an accused at any stage of the proceedings, on taking from him or her recognisance consisting of a bond, with or without sureties, for such an amount as is reasonable in the circumstances of the case.

Under the Rules of Procedure and Evidence of the ICD, bail is specifically provided for under Rule 54 which is read together with Sections 14 and 15 of the Trial on Indictments Act (TIA), Cap 23, the law under which ordinary criminal trials are held by the High Court.

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During the hearing of today, the defence team presented to Court four sureties. One of them is the Member of Parliament for Kilak South, who informed the court that he was willing to provide accommodation to Kwoyelo in is Toro Parish-located home and would ensure that the accused attends the subsequent hearings. The prosecution team objected to him being presented as surety, arguing that he was a busy person and could therefore not ensure the presence of the accused in court. The second surety is one of Kwoyelo’s cousins, a retired teacher and who was once a parish chief. He failed to present a valid identification document before the court, which is key for one to stand as surety for an accused person. In addition, the prosecution also provided evidence that this specific surety was once tried for treason, though he was later acquitted, which it deemed compelling in disqualifying the person.

The last two sureties were also members of Kwoyelo’s family: his young sister and another cousin. The defence provided all required information and also argued that the two people could be easily traced in case the accused does not appear for hearing. The Prosecution team argued against them being sureties on the basis of their young age, which would prevent them from ensuring that the accused appears for the subsequent hearings. The defence counterargued that the court cannot operate on superstitions or fears and called upon the court to consider the relationship that exists between the accused and these two people.

The victims’ lawyer invited the court to act in its own discretion regarding the bail application.

At the previous hearing, the team of victims’ representatives had regretted their inability to take into consideration the needs and desires of the victims regarding the bail application, and further requested the court to allow them time to go and consult the victims on this matter.

Yet, the lawyer did not make any reference to potential victims’ consultation during the present hearing.

The hearing was adjourned to 20 March 2019 for the judge to give her ruling regarding the application.