Kwoyelo in the dock: better justice delayed than no justice at all

[This piece is an ISS publication]
15 April 2016

On Monday 2 May 2016, the trial of former Lord’s Resistance Army (LRA) rebel commander Thomas Kwoyelo will start in Gulu, Uganda. The trial, which will be the first of its kind in Uganda, marks an important phase in the quest for justice for crimes committed by the LRA.

Efforts to prosecute Kwoyelo began in 2010 when the prosecution charged him with offences under the Geneva Conventions Act of Uganda. The case, which was transferred to the Uganda International Crimes Division (ICD) of the High Court, suffered many delays. These related to Kwoyelo arguing that he qualified for amnesty and was exempt from prosecution.

In 2011, the Ugandan Constitutional Court unanimously agreed with Kwoyelo, ruling that he was entitled to amnesty under the country’s Amnesty Act at the time. The Attorney General appealed this decision; and in April 2015 the Supreme Court ruled that the case must be re-instated. Just over a year after this ruling – which also found that there is no blanket immunity and that it is up to the Director for Public Prosecutions to decide whether to prosecute – Kwoyelo’s trial will now start.

The trial marks an important phase in the quest for justice for crimes committed by the LRA

While the start of the trial is a milestone for the prosecutors, it raises questions about the rights of accused persons. In the six years since Kwoyelo was first arrested, he has remained in police custody – even though between 2011 and 2015, based on the Constitutional Court’s ruling, he could have been a free man. Should he be convicted, the ICD would have to consider this in their sentencing.

Kwoyelo is charged for serious crimes committed under his command; or with his full knowledge and authority. These crimes stem from the armed conflict that ravaged from 1987 to 2008 in northern Uganda, southern Sudan and north-eastern Democratic Republic of Congo (DRC) between the LRA, led by Joseph Kony, and the Ugandan government. Kwoyelo’s charges span 18 of these years (from 1987 to 2005) and relate specifically to the LRA’s activities in Kilak County, in the northern Uganda district of Amuru. The LRA – now spread out in parts of central Africa – was supported and controlled by the government of Sudan throughout this conflict.

It is important to note that Kwoyelo – senior as he was within the LRA – is not wanted for trial by the International Criminal Court (ICC), which has already issued arrest warrants against his brothers-in-arms, including LRA leader Kony. In 2004, the Ugandan government called on the ICC to investigate and prosecute crimes committed in northern Uganda. However, the ICC is not the only court that can deal with such crimes; and the primary responsibility still rests with Uganda.

In setting the trial date, the court was clear that justice had been delayed for too long

The start of a case like Kwoyelo’s underscores the important role that domestic justice mechanisms have in ensuring accountability for international crimes. This is especially true given that Kwoyelo’s charges go beyond the reach of the ICC – the ICC can only deal with crimes committed after 1 July 2002 – and outside the scope of Uganda’s referral of the LRA situation to the ICC.

Interestingly, as Kwoyelo faces his trial in Gulu, the ICC on 23 March confirmed 70 charges against a former associate, Dominic Ongwen for his role in the rebellion. Both Kwoyelo and Ongwen (originally from close to Gulu), joined the rebellion as children – having been abducted by the LRA and rising through the ranks to become commanders. They are victims turned perpetrators; harrowing representations of the LRA rebellion.

These cases will run parallel to each other, which will shed light on the similarities and differences between domestic and international justice processes; each with its own pros and cons.

The technical handling of the Kwoyelo case will be telling of Uganda’s ability (or not) to deal with such crimes. With charges spanning close to two decades, it will not be an easy trial at all. Already the defence has raised this as one of their concerns about equality of arms (which refers to the prosecution and the defence having equal footing in criminal prosecutions), arguing that their team (and thus their client) is hugely prejudiced.

The Kwoyelo trial could signal a new dawn of hope; or it could be a red herring

For the defence, it is unreasonable that the state intends to call 113 witnesses. However, given the scope of the charges and the much larger number of victims, one could argue that it is the state’s duty to adduce as much evidence as it can to establish guilt on all charges beyond a reasonable doubt. It will be up to the Kwoyelo’s legal team to mount an equally forceful defence.

Another concern raised by the defence team is that it is under-resourced in comparison to the prosecution. The deputy registrar of the court, Harriet Ssali, however, indicated that it was in the process of securing funding to cover the required expenses. The registry also noted that the funding would cover a specific period of time and recommended that the trial be restricted to that time. How feasible this will be shall soon be tested.

The defence is also dissatisfied that the trial will take place in Gulu; a small city in the North of Uganda, about 300km from the capital, Kampala. For the prosecution and the victims, Gulu is an ideal location; it is at the heart of the region that the LRA terrorised for over two decades; and thus closer to where most victims and witnesses would still reside.

For some of the victims and witnesses that will testify against Kwoyelo, the prosecution intends to apply for protection measures, which would be a prudent step considering that the LRA still haunts the region and has a history of retaliatory attacks.

For the victims of the conflict who prefer prosecutions, this case will be significant

Gulu is still the logical choice for this trial. Indeed, the community will be able to see justice in action at their very doorstep, even if it is delayed.

The last issue that the defence objected to was the trial date, which they would have preferred to start in October instead. Coincidentally, the victims’ representatives also felt that May was too soon a date for the trial, and said it ought to start between July and August.

By now, the prosecution should have disclosed all its evidence to the defence. The Court had given it until 12 April to do so. It is still not clear whether full disclosure has happened, but if it has, this would give the defence a couple of weeks to prepare for trial. Speedy justice at last, after slowly grinding on for six years? We are yet to see. It is likely that the defence will seek a postponement and, given the views of the victims on the matter, this could very well be granted. However, in setting the trial date, the court was clear that justice had been delayed for too long – so if there is a postponement, it will not be for much longer.

For Uganda, Kwoyelo’s impending prosecution is already somewhat of a landmark. It marks years of frustrations and attempts at ensuring that the LRA (or at least some of them) answer for their crimes. Not all the victims of the conflict prefer prosecutions, but for those who do, this prosecution will be significant.

How the case is handled will be a watershed moment for Uganda’s domestic efforts to address international crimes. But justice cannot be for the alleged victims of Kwoyelo alone, and the ICD’s task now is to bring justice home for more victims. With limited capacity to do so, this could prove tricky.

Thus, the domestic prosecution of international crimes in Uganda could be the long-awaited signal of a new dawn of hope for some victims. Or it could be a red herring.

As the trial date approaches, the proof of the pudding will be in the tasting.

Ottilia Anna Maunganidze, Senior Researcher, Office of the Executive Director, ISS

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