Thomas Kwoyelo before the ICD in Uganda (11-12-13-14 March 2019 audiences)

THE CASE OF THOMAS KWOYELO BEFORE THE INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT IN GULU 14 March 2019 The trial of former LRA Commander Thomas Kwoyelo alias Latoni, resumed before the International Crimes Division of the High Court of Uganda (ICD), sitting at Gulu High Court premises from 11 until 14 March 2019. Over the course of 4 days, a number of issues were addressed ranging from the need to ensure that victims lawyers are facilitated, the presentation and administration of the assessors, and the presentation of expert witness by the Prosecution team.

The trial panel consisted of Justice Jane Kiggundu, Justice Michael Elubu, and Justice Duncan Gaswagga and Justice Mubiru Stephen.

Present in court for the parties was Alaka Caleb,Evans Ochen, AnyuruGeofrey and Dalton Opwonya for the Accused, Kamuli Charles, Byansi William and Akello Florence for the Prosecution, and the Victims lawyers, KomakechKilama.

Place: International Crimes Division 11 March 2019, 2pm-5pm 12 March 2019, 10:30am-12:20pm, 2:45pm-5:00pm 13 March 2019, 9:15-11am, 11:30am-12:50pm, 2:20pm-5:15pm, 5:30pm-5:40pm 14 March 2019, 9:15am-10am Case Number: Case No 002 of 2010 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.

Charges – 93 counts: Murder - Enslavement - Rape – Torture - Imprisonment - Hostage taking - Other inhumane act - Pillaging - Crimes against humanity - Cruel treatment - Outrages against dignity - Violence to life and person as cruel treatment and torture - Kidnapping with intent to murder - Aggravated robbery - Attempted murder - Procuration of unlawful carnal knowledge SUMMARY OF HEARINGS Day 1 (11 March 2019): Kwoyelo’s request for a transfer to the ICC / The need for victims lawyers’ facilitation On 11 March, the ICD commenced the trial of Thomas Kwoyelo. On this day before the proceedings, the accused, through his legal representative, requested for the court to allow him to address them on two issues. The first issue was his allegation of being assaulted by the female prison officer on the day before he was brought to Court. In response, the prosecution team took note of his concern and promised the court that they were going to follow up with the matter, investigate it and report back to court. This illustrates that the court is concerned with how accused persons are treated while in custody.

The second issue that the accused raised pertained to the prolonged trial. He requested the court that, if possible, the case should be referred to the International Criminal Court. In response, the Prosecution team replied that the delay of the case was due to the case being referred to the Constitutional Court and Supreme Court by the defence team. It should be noted that the accused person has been on trial for the last 9 years with many adjournments since the case was referred back to the International Crimes Division.

The victims lawyers also criticized the lack of facilitation on their end, as one of them could not attend this specific hearing due to lack of funding. All the parties to the case were in support and expressed concerns about the issue, inviting the court to tackle it during the subsequent hearing. Rule of Procedure Rule 51 provides that the Registrar of the court should assist victims in obtaining legal advice and organizing their legal representation. Although the Rule does not state per se that the Registrar’s office should provide facilitation, it is hard to envision victims’ access to legal advice without some sort of facilitation being granted to their representatives.

This matter has kept coming up on every hearing; it would be important that the Court makes a final decision or ruling pertaining this issue. The hearing was adjourned to the following day.

Day 2 (12 March 2019): Review of the assessors / Prosecution and defence’s opening statement The session began by the presentation of the assessors. After the Registrar of the court presented four assessors and their credentials, the parties to the case cross-examined the assessors, predominantly in relation to whether they had ever been affected by the conflict. It was established that this was not the case; neither had any of their relatives been. This verification is important so as to ensure that assessors are neutral while performing their duties in court.1 Their role is indeed to advise the court and the judges on issues that may arise during the court proceedings. As such, these persons are required to attend all the court proceedings.

The court eventually appointed four assessors, three of whom will be the main assessors while the fourth act as a substitute.2 In the afternoon, the Prosecution, in their opening statements, read out a summary of what issues they intended to raise in Court. It provided a brief background about the case, highlighting both the crimes allegedly committed by Kwoyelo, as well as the areas of alleged perpetration crimes, namely thevillages of Abera, Paibi-Atiak road, Obbo parish, Perechu, Kal-pa-okal and Lamogi all found in the Kilak area, Amuru District. The Prosecution also noted that they had 130 witnesses and 360 exhibits, medical notes, videos, newspaper extracts that will be used to prove that the said crimes were committed by Thomas Kwoyelo.

In response, the defence stated that Kwoyelo was not a leader, unlike “Joseph Kony, Raska Lukwiya, Okot Odhiambo, Dominic Ongwen or Otti Vincent”, and further emphasised on Kwoyelo’s status of former child soldier: “before you is a victim who was not protected; was abducted on his way to school while in P.3, indoctrinated, and the government failed to protect him. A kid not liable for crimes alleged.” The defence announced that it would work on demonstrating to the court that the accused tried to escape, which led to the death of his father Mr Jokodino Omona, as a way of punishing him. The overall defence strategy therefore seems to rely on the twofold status of perpetrator-victim.

The Victims lawyer wanted to make a statement but the trial panel noted that victims participation will come in the discretion of the panel, in line with the 2016 decision on victims According to Section 67 of the TIA, assessors must be sworn in at the commencement of the trial but after preliminary hearings and after the accused has pleaded to the indictment. This was fulfilled following the previous hearings of the case. According to Section 68, before the assessors are sworn in, the accused or his or her legal representative and the legal representative of the prosecution have a right to challenge the propriety of the choice of a particular assessor. This has done adequately by the Panel of the Judges and none of the parties has objected to the appointed assessors.

2 Section 3 of Trial on Indictment Act (TIA) provides that in any case before the high court, the court should have two assessors and the Rules of Procedure of the ICD under Rule 30 it provides that the court shall appoint a maximum of three assessors.

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participation in which the pre-trial judge said that the decision of how the victims will participate would be determined by the trial panel. It is hoped that the trial panel will make a ruling on this issue as the case progresses.

After these submissions, the prosecution called its first witness, an expert witness, to support its opening statement and provide a contextual background of Thomas Kwoyelo’s case. The witness presented a report of close to 150 pages before court, to be used as evidence. The hearing adjourned at 5pm for the following day.

Day 3 (13 March 2019): Hearing of expert report The prosecution team began by calling back the expert witness to give a brief summary of the report submitted the day before. The expert discussed four main findings: (i) the conflict was widespread all over Northern Uganda; (ii) the conflict was characterized by extreme brutality and abductions; (iii) the internally displaced person suffered most from the conflict and still experience difficult times (e.g. lack of basic necessities); (iv)there is a dichotomy between the traditional and formal justice systems within the Acholi community where people still have strong believe in their traditional justice mechanism.

Later, the witness was subjected to cross-examination by the defence, who refuted some of the findings from the report, starting with the origin of the Acholi people. The defence argued that the witness had incorrect information saying that the people of Acholi originated from South Sudan, a key area given its historical aspect regarding the LRA conflict. In addition, the Defence also wanted to know whether the witness had visited the areas stated in the indictment, to which the witness replied negatively. Later on, the prosecution team also re-examined the witness in relation to the chosen methodology, which turned out to be based on historical and desk research-based methods.

Thereafter, the victims lawyer made an oral application to the court to allow him to also ask questions to the expert witness in line with Rule 35 of the ICD rules, which requires the court to take into account the victims’ interests during the proceedings. The Court rather invited him to make a formal application, adding that he would be allowed to ask questions after sharing them with the court and all the other parties involved in the case. The Court justified its decision based on the risk to compromise fair trial standards. Among the other parties, the prosecution stated that they would leave the matter of victim participation to the court’s decision. The defence clearly stood against the victims lawyers’ participation at this stage since there are no specific victims identified so far in the case. The court was adjourned to the following day.

This displayed again the importance for the court to decide on the modalities of victim participation in the proceedings, as the current status is likely to affect victims’ rights in the trial, and the lawyers will be required to make applications every time they want to address the court.

Day 4 (14 March 2019) The proceeding began by the Prosecution team informing the court that they were going to call another witness. The Prosecution requested that the proceedings be held in camera without the public and media due to needs of witness protection. The defenceo bjected to this request, but the court overturned it, and allowed the proceeding to be held in camera while requesting the public to exit the court. In doing so, the court referred to Rule 36 (9)(1) which allows the trial panel to hold proceedings in camera if the security of the witness is at risk. The proceedings continued in camera till 1 pm.

The hearing was later adjourned to 18 March 2019