International Crimes Division: Pre-trial offers up lessons and questions from Uganda

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In this post for International Justice Monitor, Lino Owor Ogora offers an account of the pre-trial hearing for Lord’s Resistance Army (LRA) Colonel Thomas Kwoyelo at the International Crimes Division (ICD) in Uganda. He highlights progress and concerns – around victims’ participation, defense rights, and the prosecution of sexual violence in conflict – at the ICD, which Uganda posits as its judicial mechanism to try Rome Statute offenses, among other international crimes. LRA commander Dominic Ongwen is currently in ICC custody.

On Monday, August 15, the long awaited trial of former Lord’s Resistance Army (LRA) commander Colonel Thomas Kwoyelo began with a pre-trial hearing presided over by Justice Susan Okalany, a judge of the High Court of Uganda. The hearing, however, had to be adjourned because the defense lawyers representing Kwoyelo did not show up in court. At the same hearing, the court also appointed two new lawyers and the prosecution team revealed that they would introduce a new count on sexual and gender based violence. This article presents a narrative of what transpired during the pre-trial hearing and a brief analysis of the major decisions taken.

The Pre-Trial in Gulu: A Case for Victim Participation

Kwoyelo’s case is being tried before the International Crimes Division (ICD) of the High Court of Uganda, and the pre-trial hearing was held at the High Court premises in Gulu town. With the start of the trial having been postponed numerous times before, many people were happy that the trial was finally starting and showed their interest by turning up in large numbers. By 9:00am, the courtroom had been filled up to capacity by representatives of local and international civil society organizations, humanitarian agencies, the press, and members of the public.

Also present in the court were victims’ representatives from Pabo and members of Kwoyelo’s family. To cater for the large number of people, the court Registry had set up overflow facilities in a second courtroom and in a tent outside the court buildings. Both these overflow facilities were equipped with television screens and speakers, so the public outside the courtroom could easily follow proceedings.

The decision to hold the pre-trial hearing in Gulu was made in a bid to bring the trial closer to the people and consequently promote victim participation. The Registry of the ICD must be applauded for making this decision because it enabled many people living in the conflict-affected communities to attend. Kwoyelo is charged with war crimes and crimes against humanity that allegedly occurred in Pabo sub-county located in Northern Uganda.

The decision to provide overflow facilities also ensured that all people could follow proceedings easily. The move by the ICD could provide valuable lessons for the International Criminal Court (ICC), which has twice rejected requests for in situ hearings in Northern Uganda for Dominic Ongwen’s confirmation of charges hearingand trial opening.

Kwoyelo’s Defense Lawyers Fail to Turn Up

Victims’ lawyers, Henry Komakech Kilama and Jane Magdalene Amooti arrived to the courtroom on schedule. They were shortly followed by the prosecution team led by Charles Kaamuli. Other members of the prosecution team were George William Byansi and Florence Akello. However, the defense lawyers failed to arrive.

Caleb Alaka and Francis Onyango have been representing Kwoyelo since 2008. Nicholas Opiyo, a prominent human rights activist and lawyer in Uganda had also recently joined Kwoyelo’s defense team and was scheduled to appear at the pre-trial hearing.

After a brief examination conducted by Judge Okalany, the audience learned that Kwoyelo himself did not know why his lawyers had not turned up in court. The judge therefore ruled that Kwoyelo had until the following morning to ensure that his lawyers were present or else the court would appoint new lawyers. Proceedings were then adjourned for the day.

Kwoyelo’s lawyers claim that they did not attend the hearing because they were not notified in time in accordance with the Rules of Procedure of the ICD. Alaka, the lead counsel, claimed he thought the hearing was supposed to be held at the Kampala High Court.

Opiyo, one of Kwoyelo’s other lawyers, criticized the manner in which the hearing notice had been served upon them. In a Facebook post later that evening, he explained that “a court clerk just served upon me a hearing notice at 16:10 hours for a hearing in Gulu at 9:00 hours! Ridiculous to say the least and intended to achieve the aim they must have wanted in the first place – to hear the case without a proper defense.” In the same post, Opiyo alleged that from the beginning the court considered the defense lawyers “troublesome” and that the Registry sidelined them by not involving them in activities, such as community outreach.

The failure by the defense lawyers to attend the hearing raises serious questions regarding legal representation. As an accused person, Kwoyelo is entitled to a proper and competent defense in order to ensure that he gets a fair trial. If the defense lawyers are not receiving the support they need from the court, as demonstrated for example by the failure to give the defense adequate notice and to involve them in community outreach, then the trial is bound not to be fair. It points to the need for cooperation by all parties to ensure that the trial proceeds smoothly.

New Defense Lawyers are Appointed

The hearing resumed on Tuesday, August 16, and like the previous day, the courtroom and the overflow facilities filled up to capacity by 9:00am. The victims’ lawyers also arrived on time. Shortly after, Charles Dalton Opwonya, a lawyer who claimed he would represent Kwoyelo, appeared.

However, the prosecution did not arrive.  Unconfirmed rumors circulated in the courtroom that they were amending the charge sheet. The audience waited patiently for two hours until the prosecution finally arrived. It was not until after their arrival that Kwoyelo was led into the dock and the hearing began.

The first matter the court dealt with was the absence of Kwoyelo’s defense lawyers. Opwonya introduced himself as his new defense lawyer. He said he had been contacted by the accused but requested that the court meets his legal costs.

This surprised the judge, who said it was the responsibility of the court to appoint lawyers. She introduced another lawyer, Godfrey Borris Anyuru, whom the court intended to appoint. However, after asking Kwoyelo if he had been in touch with Opwonya, the court said they would not object to Kwoyelo’s choice of lawyer. The judge actually praised Kwoyelo for having taken steps to obtain a new lawyer.

The court therefore appointed Opwonya and Anyuru as Kwoyelo’s new lawyers. The judge also noted that Kwoyelo’s previous lawyers would be free to rejoin the proceedings at any point in time during the trial.

The decision by the court to ensure Kwoyelo had adequate legal representation is a positive development and complies with international standards for fair trials. What remains to be seen is if the new lawyers will provide a strong defense and work with the court to get the trial started by avoiding any further delays caused by the absence of Kwoyelo’s original lawyers.

The Prosecution Introduces a New Count on Sexual and Gender Based Violence

Lead prosecutor Charles Kaamuli informed the court that prosecution intended to introduce a new count on sexual and gender based violence (SGBV), under Rule 13 of the ICD Rules of Procedure.

In support of the prosecution, the victims’ lawyers told the judge that they also intended to introduce new counts in the future, although they were not explicitly clear about which new counts they intended to introduce.

The defense acknowledged that while amendments could be made at any stage of the trial, it was important to remember that Kwoyelo had been in detention for close to eight years, so there is a need to specify the time frame under which the new amendments would be brought. The judge ruled that the new amendments would be accepted but asked the victims’ lawyers to work with the prosecution team to ensure that all necessary amendments were filed as soon as possible.

The decision to introduce a new count on SGBV is also another point on which the prosecution must be applauded. It is common knowledge that SGBV crimes were committed in Northern Uganda as a result of many girls and women being abducted, forced to become wives, and to bear children to rebel commanders. The prosecution has therefore taken a step in the right direction, although they still remain with the burden of proving it.

Adjournment to September 21

After the prosecution made their submission, the judge asked then defense team if they were ready to proceed. They responded that they were not ready to proceed because the prosecution had not made full disclosure of the evidence. They requested that disclosure be made along with exhibits.

The prosecution agreed to make disclosure of all evidence required by the defense team, including what had already been given to the previous lawyers. The prosecution noted that the new evidence that had not been disclosed included post-mortem reports, medical treatment reports, patient register books, video tapes, photographs, 10 police statements, and a certified copy of the Nairobi Peace Agreement between the LRA and the government of Uganda. The judge ordered the prosecution team to disclose all evidence within two weeks.

The judge also ruled that based on the fact that the new lawyers had just been appointed, the court would grant an adjournment to enable the defense to adequately prepare for the next pre-trial hearing. The judge adjourned the proceedings until September 21 and ordered the Registrar to serve all parties with a two weeks’ notice of the hearing.

The further adjournment of Kwoyelo’s next trial date to September raises serious questions about the ICD’s readiness to conduct the trial expeditiously. Kwoyelo has already been in detention since his arrest in 2008, and, as noted in an earlier commentary, the delays are an infringement on his right to a speedy and fair trial as well as a denial of the right of victims to justice. This adjournment, however, was inevitable as already portrayed above. It is therefore hoped that that the trial will proceed smoothly when then court reconvenes on September 21.

Lino Owor Ogora is a transitional justice and peace building practitioner. He is also the Director of the Foundation for Justice and Development Initiatives, an NGO based in Gulu District, Uganda, that works with children, youth, women, and communities to promote justice, development, and economic recovery in Northern Uganda.