Thomas Kwoyelo before the ICD in Uganda (26/03/2019)

BAIL APPLICATION IN THE CASE OF THOMAS KWOYELO BEFORE THE INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT IN KAMPALA 26th march 2019 During the last session of the hearing of the Kwoyelo case on March 11th 2019 in Gulu, the bail application of Thomas Kwoyelo alias Latoni was heard on its merits. Although the ruling had been expected to be delivered on March 20th 2019, it was adjourned on account of the busy trial schedule of the attending judge as part of the main hearing. The ruling on bail was delivered on 26th March 2019 by the honourable Justice Jane Kiggundu at the ICD Court premises in Kampala.

The Accused was present in court, together with his defence counsel and the prosecution. The victims’ counsel were absent.

Place: International Crimes Division – Kampala Date: 26th March 2019, 11:48 a.m. – 12:20 p.m.

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 have filed for bail under Article 23(6)(a) of the Constitution of Uganda.

SUMMARY OF THE RULING The ruling was read out in full by the presiding judge in open court. Although the presence of an interpreter is a fundamental requirement for a fair hearing under Article 28(3)(f) of the Constitution of the Republic of Uganda, no interpreter appeared in court to translate the ruling from English to Acholi for the benefit of the accused who is not fluent in English.

The judge commenced by giving a background of the application. It is important to note that at the time of the application for bail, the hearing of the case had not commenced. The grounds of the bail application, supported by two affidavits were then reproduced,claiming among others: 1. That the applicant has the right to apply for bail under A 23(6)(a) of the Constitution; 2. That the applicant would abide by the bail conditions set by the Court, that the applicant has fixed places of abode; 3. That the applicant will produce substantial sureties within the jurisdiction of the Court and; 4. The Applicant also relied on the Judgement in his favour granted by the African Commission on Human and Peoples Rights in July 2018 which highlighted various violations of his rights such as a prolonged detention without trial,and made some orders and declarations in that regard.

The application was opposed by the state on the grounds that: 1. Most of the incidents in the indictment occurred in the accused’s home area of Pabbo, hence in close proximity with the witnesses as well as some former combatants who had reintegrated into the community; 2. The accused is charged with mainly capital offences suchas murder, rape, robbery, all which attracts serious punishment and thus the likelihood of escaping was very high; 3. None of the sureties had presented the capability to keep safely and securely such a high profile suspect given the positions he held in the LRA; 4. Disclosure had already been made to the defence and as such the identities of the witnesses were known with a large probability of them being sought and harmed, that some of the proposed sureties were not suitable as they had been tried for treason and that the accused had not proved any exceptional circumstances as required by the Trial on Indictments Act. The judge rejected the bail application primarily on the grounds that: 1. Since disclosure had already been made, there was a high probability that the accused would interfere with witnesses as the atrocities were mainly committed in his home area which he knew very well, as well as a high likelihood of harm to the witnesses, some of whom he has seen since the trial began and who have testified against him; 2. It was in the public interest both at national, regional and international level, and under Article 126 of the Constitution not to grant the accused bail; 3. The nature of offences upon which he was charged is particularly grave,as well as committed especially in his home area of Amuru district; 4. The sureties provided were not substantial enough to ensure attendance of the accused at court on account that they lived too far apart and that some had suspicious histories; 5. The applicant did not have a fixed place of abode and no tangible interests in the area which would impact on his ability to abscond.

Furthermore, the court noted that the lengthy period on remand pending trial (nine years) did not in itself constitute good cause for release. Having regard to the general complexity of the proceedings as well as the gravity of the offences against the accused, the trial chamber concluded that the accused continued detention was still within acceptable limits.

The court emphasized that it was neither in the interests of the public nor in the administration of justice for the applicant to be allowed bail, weighing the interests of the accused against those of the community as well as the need to complete the trial in an orderly manner.

The accused was further remanded to Luzira Maximum Security Prison (Kampala). The trial resumes on June 24th at the High Court in Gulu with the continued hearing of the prosecution case in which two witnesses have so far testified.

The judge’s findings were well founded in the Ugandan law on bail which requires proof of exceptional circumstances for the granting of bail, especially when an accused is on trial for capital offences, as the accused in this instance. The judge also drew guidance on the practice of past international criminal tribunals through reference to past decisions of ICTR on the conditions for grant of bail.

Whilst there is provision for an applicant to appeal against a refusal of grant of bail, it remains to be seen if the accused’s defence team will consider this as an option worth pursuing.

It is noteworthy that this bail application hearing presented the first real opportunity for victims’ participation through representation. However, this was hindered by the fact that the victims’ counsels were unable to consult and obtain views of the victims on the bail application. The question then arising is how can victims’ representatives be better supported so as to ensure that victims views are effectively represented during the reminder of the trial.