Questions Raised Over Landmark Ugandan Trial

Monday, 11 July, 2011

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Barrett Holmes Pitner

Simon Jennings

Africa Editor

Irene Achan

Arthur Okot

A Ugandan court is today, July 11, beginning a landmark war crimes trial of a former rebel commander, but some have expressed concerns over the credibility of the case and similar future prosecutions.

The International Crimes Division, ICD, a special division of the High Court of Uganda, is trying former Lord’s Resistance Army, LRA, commander Colonel Thomas Kwoyelo in the northern town of Gulu – the first such prosecution by a Ugandan court.

The indictment against Kwoyelo contains 12 counts, including five of willful killing, three of serious bodily injury and two each of taking hostages and destroying property between 1993 and 2005, during the LRA insurgency that left tens of thousands dead and displaced nearly two million people.

However, as the trial gets under way, questions have been raised about the legal procedures to be used by the country; whether it is capable of properly trying alleged war criminals and protecting vulnerable witnesses; and whether more traditional forms of justice would be more appropriate.

There is concern that although Uganda has now implemented the International Crimes Act of 2010, enabling domestic courts to try war crimes cases, Kwoyelo is being charged under the Geneva Conventions Act which excludes the prosecution of certain offences, particularly crimes against humanity.

“Certain crimes, notably crimes against humanity with which the LRA leaders have been charged by the International Criminal Court (ICC) would not be captured by charges related to the Geneva Convention Act,” said Elise Keppler of New York’s Human Rights Watch. “It is important [where] possible to capture the full extent of the gravity of crimes committed and ideally that would include crimes against humanity where applicable.”

The ICD was formed on the back of an initial agreement between the LRA and the government of Uganda during peace talks in Juba which started in 2007 and collapsed in 2009. A final peace agreement has never been signed.

Before commencing its work, the ICD had been awaiting the adoption of the International Crimes Act into Ugandan law. This act was signed in June 2010 to enable the division to incorporate international rules and procedures to try atrocities such as war crimes and crimes against humanity.

Prior to the law’s implementation, such crimes had to be handled by the ICC in The Hague.

In 2005, the ICC charged the LRA leader Joseph Kony and four others with committing war crimes and crimes against humanity in northern Uganda. However, none has been apprehended and two have since died.

Kwoyelo was captured on March 2, 2009, in Ukwa, in eastern Democratic Republic of Congo, DRC. He is the highest-ranking LRA commander to be apprehended.

Kwoyelo denies all the charges against him. “My client’s response is that as far as he is concerned he did not commit murder or rape and abduction and that he was a small officer in the LRA,” the defendant’s lawyer, Caleb Alaka, told IWPR.

“The person who should be answerable should have been Joseph Kony, the chairman and the commander of LRA.”

Significantly, because the new International Crimes Act was not part of Uganda’s domestic legal code at the time of the crimes with which Kwoyelo is charged, it cannot be used to try him.

“Under our constitution, one is charged for offences that existed at the time the offence was committed,” explained Richard Butera, Uganda’s director of public prosecutions. “Since this is a law that was enacted after the offences were committed, it would not be retrospectively applicable.”

However, some commentators insist that because war crimes and crimes against humanity are recognised under international laws to which Kampala is a signatory, Ugandan courts should be able to prosecute them irrespective of when they occurred.

“Under international law, there is a principle that where it is understood that certain offences are not [set out in domestic law], it is understood to be acceptable to later pass laws where you could then prosecute those offences even though a domestic law was not on the books at the time the offence was committed,” Keppler said.

Although the International Crimes Act will not be used as a basis for prosecuting the trial, the case is expected to incorporate general legal principles encompassed in it. Matters of criminal liability and command responsibility relating to conflicts, for example, will be handled according to the act’s provision, rather than previous domestic laws.

However, the court’s failure to adopt the act for crimes committed during the LRA’s 20-year insurgency means other LRA leaders will not be brought before the court. Kony and the remaining commanders charged by the ICC will still have to be tried in The Hague rather than locally, experts say.

“There is a mutual division of work that for previous crimes against humanity [committed before 2010] there is no intention to take over these cases from the ICC,” said David Donat Cattin, a legal expert for the group Parliamentarians for Global Action.

So while the Ugandan judiciary rules out a need for ICC intervention for any future crimes that are of an international scale, the ICC will be needed to fully prosecute cases related to the LRA conflict.

“It is a bit disappointing. But even if you remove the possibility to try crimes against humanity you still have war crimes. It is still problematic, but better than other countries around the world who do not have a way to try violations of international criminal law,” Donat Cattin said.

There has been other concerns over the credibility of the ICD’s prosecution of Kwoyelo.

On June 25, a High Court judge, Justice Anup Singh Choudry, reportedly sent a six-page letter to the head of the ICD and other High Court justices, questioning the division’s competence.

“The bottom line is that we are not equipped with the procedures to deal with such war crimes or international crimes and an attempt to do so would be a travesty of injustice,” said Choudry in his letter, according to the Ugandan newspaper New Vision, which claims to have seen the letter, but did not elaborate further.

The High Court recently decided to hold the trial in Gulu, closer to where Kwoyelo’s alleged crimes were committed, instead of the court’s headquarters in Kampala. 

“I think it is getting more victim participation in the project,” Salima Namusobya, a legal expert at the Refugee Law Project in Kampala, said. “[The trial] happening in the location [affected by the alleged crimes]is a much better way of satisfying the victims, as they feel they are part of the process.”

Keppler also said the court’s proximity to victims meant there was “real value” in holding the trial in northern Uganda.

However, she warned that the benefits had to be “balanced against possible security concerns and risks for those involved in the trial, and should that be problematic, then it would be more appropriate for the trial to be held elsewhere”.

According to a July 7 report by Human Rights Watch, “Uganda has no formal witness protection programme, and as of March, there had been no assessment of risks for individual prosecution and defence witnesses. Potential witnesses may be traumatised and face security threats due to their testimony.”

Butera, interviewed on the eve of the Gulu trial, declined to comment on the alleged shortcomings of the ICD.

“We can all wait until Monday. The hearings will commence, everything will be in public,” he said. “Why are we speculating about anything about a case that will be in open court two days from now?”

A further concern about the conduct of the trial has been the availability of sufficient resources for the defence to fully present its case. According to Human Rights Watch, Kwoyelo’s lawyer, Alaka, has not had access to state funds to carry out investigations, nor has he received clear information regarding the resources available to him to conduct the defence.

Tadeo Assimwe, the registrar of the ICD, told IWPR that Kwoyelo’s defence has not submitted a budget, and that the court required this before it could release funds.

Aside from questions about the credibility of the case, there has also been some debate about whether traditional justice mechanisms – rather than judicial prosecutions – should be used to hold alleged perpetrators to account.

An amnesty act applicable to many former LRA rebels has allowed many to return to the region and integrate peacefully back into their communities, while traditional mechanisms for reconciliation, such as a ritual called “mato oput”, have been used by some communities to help victims and perpetrators come to terms with the past.

People in northern Uganda, meanwhile, have mixed feelings about prosecuting ex-LRA rebels.

Many welcome the trial of Kwoyelo as an opportunity to shed light on the 20-year conflict.

“Why the rebellion actually took place and how did Kwoyelo and others participate, and why were some of the people eventually killed – these are the questions that the people would also want to hear, live, from the people who will be testifying,” one man from the town of Lira, who lost relatives during the war, told IWPR.

But some are more sceptical about the benefits of the trial for the survivors of the conflict.

“Nothing done to these people (LRA war crimes suspects) will bring back my cattle which were raided,” Vincent Oling from Lira said. “None of the prosecutions will bring back wasted opportunities which have made us poor up to now – this is how we look at this thing.”

Others warn that prosecuting rebel commanders while the most senior LRA figures are still at large will discourage them from surrendering and jeopardise long-term peace.

“This will… create a fear in those other commanders who are still in the bush – those already indicted by ICC – not to come back home because they will fear that now that there is a court even in Uganda,” said Patrick Loum, head of the Acholi Religious Leaders Peace Initiative in Gulu. “They will fear [putting down arms and coming back to Uganda] and they will fight until maybe they die.”

Experts speculate that a combination of justice methods will be needed not only to hold individuals accountable, but to build long term peace in the war-ravaged north. 

“From my perspective, we don’t think that one way is sufficient for reaching justice. We believe that there should be many mechanisms,” Namusobya of the Refugee Law Project said. “It is one of the ways, but prosecution alone will never be sufficient.”

Donat Cattin says that while Ugandans are willing to grant amnesty to the many LRA child soldiers and other lower-ranking suspects, they are not prepared to make similar concessions to the senior rebel figures.

“I really have doubts that there is in Uganda today an African alternative to these two scenarios (prosecution or amnesty) where you allow a person to be integrated into society through a reparation rehabilitation process,” Donat Cattin said. “[Amnesty] can apply to the lower chain of the perpetrators, but the upper chain, those that decided to commit [the atrocities] — frankly, I haven’t seen anyone say you need to forgive and forget.”

Barrett Holmes Pitner is an IWPR reporter, Simon Jennings is an IWPR senior reporter, Irene Achan and Arthur Okot are IWPR contributors in northern Uganda.