Ugandan War Crimes Trial Hangs in Balance

Thursday, 25 August, 2011

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Simon Jennings

Africa Editor

Early glitches in the trial of Thomas Kwoyelo, a former commander in the Lord’s Resistance Army, LRA, accused of war crimes, are a worrying indication that the Ugandan authorities may miss a crucial opportunity to deliver justice to people in the north. 

Just weeks after the country’s first war crimes trial began, Kwoyelo’s lawyers have appealed to Uganda’s constitutional court challenging the lawfulness of the case. Meanwhile the International Crimes Division of the High Court, which is conducting the trial, has been caught on the hop as Uganda has not yet passed the laws and procedures needed to protect the witnesses who will play a vital role. 

The stalling of the trial at this early stage means it risks becoming just the latest chapter in a series of failed efforts to rebuild northern Uganda and restore justice since a ceasefire was signed with the LRA in 2006.

Following his arrest in the Democratic Republic of Congo, DRC, in 2009, Kwoyelo finally went on trial in the northern town of Gulu on July 11. An updated indictment sees him charged with 65 counts under Uganda’s penal code and the 1964 Geneva Conventions Act, including murder, rape and abduction of civilians allegedly committed between 1993 and 2005. (See Questions Raised Over Landmark Ugandan Trial)

Approximately 10,000 civilians were killed and a further two million were uprooted from their homes and forced into displacement camps during the two-decade-long LRA insurgency. The rebels abducted nearly 60,000 children and forced them to join their ranks. 

In 2005, the International Criminal Court in The Hague indicted LRA leader Joseph Kony and four of his top commanders for war crimes and crimes against humanity. However, none has been arrested, and two of them have died since the charges were issued. 

After years of delay in setting up the national court’s International Crimes Division, ICD, to try those accused of war crimes, crimes against humanity and genocide, the Kwoyelo trial was seen as a key opportunity for the Ugandan state to start delivering a measure of justice. 

But now that Kwoyelo is in the dock, the legal framework surrounding the trial presents complexities. 

Although Kwoyelo was captured rather than surrendering, his lawyers claim their client should not be on trial, as he should have been granted amnesty after renouncing acts of rebellion. They cite an amnesty law passed in 2000 to reprieve those conscripted into the LRA and who laid down arms and repudiated violence on returning from the bush. Over 12,000 former LRA members have been granted amnesty under this law.

A state lawyer from the attorney general’s office, Patricia Mutesi, told judges at the constitutional court last week that the amnesty act was unconstitutional, and that Kwoyelo was therefore not eligible to apply for it. If upheld by judges, this could throw the entire amnesty programme into disarray.

If the amnesty issue is resolved and the trial goes ahead, the specific laws under which Kwoyelo is prosecuted have also been the subject of confusion.

The trial was held up pending the incorporation of a bill called the International Crimes Act into Ugandan law. The act is designed to allow the ICD to use international rules and procedures to try war crimes, crimes against humanity and genocide, and could therefore be used to try other LRA leaders whom Uganda may apprehend in future.

Yet although it was signed in June 2010, the International Crimes Act will not be used to prosecute Kwoyelo. The director of public prosecutions has ruled this out on the grounds that any crimes against humanity that Kwoyelo could be charged with would predate the act.

Instead, Kwoyelo faces charges under the existing Geneva Conventions Act, which excludes the prosecution of certain serious offences, particularly crimes against humanity.

Other concerns surround the lack of measures to protect witnesses in the Kwoyelo case.

The Ugandan authorities failed to respond to recommendations made by a panel of international experts in March, which underlined the urgency of putting a witness protection programme in place. Four months later, the high court went ahead with the trial without instituting a programme of this kind.

It seems the court was mindful that Kwoyelo had already been in custody for over two years and any further delay might prompt a challenge on the grounds that his right to a fair trial was being violated.

Without witness protection measures, the trial process could endanger the safety and wellbeing of those called upon to testify about atrocities committed on a mass scale. Witnesses in the case, who will include women and children, would be forced to relive highly traumatic experiences without them receiving the psychological support they need – further compounding the suffering they have endured as a result of the conflict.

A government group working to improve the administration of justice, the Justice Law and Order Sector, is currently drawing up interim guidelines for judges and for the director of public prosecutions which will introduce some measures for witness protection and psychological support for victims. It says these will allow the Kwoyelo trial to continue once the constitutional court gives the green light. However, a comprehensive witness protection law that meets international standards is not expected to go before parliament until next year.

The people of northern Uganda have waited years for a credible government effort to deliver some justice in the wake of the LRA insurgency, and to start healing the wounds of the brutal conflict.

The Ugandan government appears to be losing interest in pursuing and defeating the rebel army in DRC – which its troops have a mandate to do – and preventing further attacks in the region. As the LRA continues to regroup and carry out attacks in the northeast of DRC, Uganda has reduced funding and cut its troop commitment to rooting out the insurgents.

The problems in administering justice fit a wider pattern of failure to address the post-conflict situation in northern Uganda.

As part of the Juba peace deal, the Ugandan government promised reparations to victims of the war and to support reconciliation and redevelopment efforts in the north. The government said it would provide assistance in the form of services and investment through various development programmes, in particular its Peace, Recovery and Development Plan. That plan has suffered delays and now a lack of outside funding as donor interest drifts away.

Several other development efforts have been blighted by corruption and a lack of effective oversight, meaning that few communities have seen real benefits from them. Projects run by the government’s National Agricultural Advisory Services, the Northern Uganda Social Action Fund, and other agencies were badly managed, with several arrests made following allegations of misappropriation of the money meant to help people as they returned from displacement camps across the north.

The government is also yet to come up with a comprehensive strategy to care for victims of the conflict and provide reparations and support for them.

A number of victims’ groups have sued the government for damages for the atrocities committed by the LRA, but so far they have had limited success.

Meanwhile, the compensation offered by the government has been delivered on an ad hoc basis, and at times has looked cynical, such as when a presidential adviser promised compensation for 5,000 Acholi – the ethnic group most affected by the conflict – ahead of a presidential election last February.

Given the extent of the suffering, it seems unlikely that the government will be able to give financial compensation to every victim of the conflict in northern Uganda. And efforts to rebuild infrastructure have fallen well behind. Almost everyone uprooted by the war has now left the displacement camps, but thousands still struggle to access fresh water supplies, adequate healthcare and education.

Faced with economic crisis, spiralling inflation and a weakening currency, the task of rebuilding the north grows greater by the day.

Yet these challenges only reinforce the importance of the Kwoyelo trial, and the need for the kind of justice that a well-run trial could achieve. Aside from the question of Kwoyelo’s guilt or innocence, victims of the war have so far been denied a comprehensive account of the conflict, an understanding of what happened and a sense that their suffering is being recognised and addressed.

The trial of Thomas Kwoyelo is a vital opportunity to begin this process, and one that the government should not miss.

Simon Jennings is an IWPR senior reporter covering international justice issues in Africa.

The views expressed in this article are not necessarily the views of IWPR.