Uganda Gets Time to Solve Witness Safety Problem

An appeal against the acquittal on war crimes charges of the former alleged Lord’s Resistance Army commander Thomas Kwoyelo has given Uganda’s newly-formed International Crimes Division, ICD, of the High Court more time to implement crucial measures to protect witnesses.

“We have breathing space. The state has notified the court of its wish to appeal [the decision to release Kwoyelo, which] will give us more time to think about the inadequacies in our criminal justice system,” spokesman for the High Court, Elias Kisawuzi, told IWPR.

However, Kisawuzi warned that the necessary measures will take time to formulate.

“I don’t envisage a situation where we are going to have witness protection in the near future. Tomorrow or even next month we are not going to have witness protection. It is not an easy one [to draw up],” he added.

The Ugandan judiciary has come under fire from legal and human rights experts in recent weeks as it still lacks measures to protect witnesses even though the Kwoyelo trial got under way in early July.

Judges at the constitutional court in Kampala ordered Kwoyelo be freed on September 22 after they agreed with an appeal by the defence that he should have been granted amnesty for his alleged crimes, under Uganda’s Amnesty Act of 2000.

Kwoyelo’s indictment includes 12 charges of grave breaches of the Geneva conventions as well as a further 53 counts under Uganda’s domestic code, including murder, kidnap and destruction of property.

 “If we had not been saved by moving the case to the constitutional court by now we would have witnesses testifying. What would we do with them? What system would be protecting them? We are dealing with a practical challenge,” said Jacob Oulanyah, the deputy speaker of parliament, at a conference on witness protection held in Gulu last month.

If the judges’ decision to release Kwoyelo is upheld on appeal, it could set a legal precedent which would make it very difficult to try other rebel fighters before the ICD.

However, the director of public prosecutions, Richard Butera, has said he is confident the court will reverse the ruling and both the case and the ICD will move forward.

“We would not appeal if we were not sure we were going to win,” he told IWPR. “We are appealing because we are confident that it won’t be rejected.”

Butera argues that amnesty should not apply to an individual who is charged under Uganda’s Geneva Conventions Act.

If Kwoyelo’s case does progress, Butera said other former LRA combatants would be brought before the ICD. Following investigations, he is waiting to file “many cases”, he said.

The Kwoyelo case was to be the first in Uganda to try a suspect for war crimes under the Geneva conventions. However, without adequate witness protection measures experts say Uganda is neglecting its duty to ensure those who testify in such cases are safe from threats they may receive for providing incriminating evidence against a suspect.

“Witness protection and support is crucial when it comes to war crimes trials. You can imagine that people who testify in these trials which involve very serious crimes [and] very sensitive issues can be at great risk [when] providing their testimony,” Elise Keppler, of the New-York based advocacy group Human Rights Watch, said.

In March 2011, an independent report by international experts commissioned by Uganda’s Justice, Law and Order Sector, JLOS, which advises the government on judicial matters, recommended that a comprehensive witness protection programme be put in place for the ICD.

In northern Uganda, many war victims and witnesses live in close-knit communities alongside alleged perpetrators of horrific crimes, raising concerns over their safety as former combatants in the region face the possibility of trial at the High Court.

“Protection needs to be taken seriously, these [witnesses] are not people who [live] far away in remote places,” said Denis Martin Okwir of Empowering Hands Uganda, a local non-governmental organisation supporting victims of the LRA war.

It is not only the protection of witnesses who might put themselves at risk by testifying publicly that is of concern. Experts fear that there is also no mechanism to offer psychological support to those who are asked to relive traumatic experiences by talking about them in court.

“The government has to train qualified staff from psycho-social units to give support to these witnesses. If you are a traumatized person giving an account of past trauma then you must also [introduce] a way of trying to make this person live through his trauma peacefully,” Makmot Kibwanga, a lawyer based in Lira, said.

There is also concern that the issue needs to be addressed beyond the ICD. Some cite inadequate protection as a possible reason why witnesses have withdrawn from past cases at courts across the country, causing them to collapse. 

“[Witness protection] is a very integral part of the proceedings and the faster we get witness protection, the better for our legal system,” said Gulu-based lawyer Komakech Henry Kilama. “Maybe in hindsight, some cases have been failing because of poor witness protection.”

JLOS says the government is currently drawing up guidelines for a new law to protect witnesses.

“JLOS has been working on the witness protection law; it has conducted a number of studies, and recommendations have been made. Those recommendations have to be translated into law,” Paul Gadenya, senior technical advisor at JLOS, said.

However, Gadenya said it will be at least mid-2012 before such a law is passed. 

Although lawyers and government officials agree on the urgent need for comprehensive witness protection measures, some experts believe a law governing them is not necessary. By defining general protective measures, they say parliament could leave it to judges to implement them on a case-by-case basis.

Arthur Okot, Gillian Lamunu and Bill Oketch are IWPR reporters based in Gulu. They report for IWPR’s Facing Justice radio programme which is broadcast across the region in partnership with the Northern Uganda Media Club.