Thursday, 14 March 2019

Prosecution makes their opening statement; calls first witness in the trial of Kwoyelo

On Tuesday March 12, the prosecution team in the trial of former LRA colonel Thomas Kwoyelo made their opening statement and called their first witness at the International Crimes Division of Uganda’s High Court [ICD] sitting in Gulu. The same day court swore in four court assessors one of whom will be an alternate because the rules allow only three court assessors at a time. The duty of court assessors is to advice court and to give their opinions on matters arising. 

In their opening statement, the prosecution indicated that the main interest of the prosecution is for the victims to get fair justice and that the accused and his group will be remembered for many brutal killings some of which were carried out using machetes, axes, beating, mutilation etc. The prosecution also alleged that the group [LRA] forced people into IDP camps where their security was not good and lived vulnerably.

Kwoyelo is facing 93 charges of war crimes and crimes against humanity allegedly committed while in the LRA. He has pleaded not guilty to all charges
“The prosecution has about 130 witnesses who will be lined, 360 exhibits, pictures, medical notes, videos, newspaper extracts and other evidences to prove the charged crimes…we shall bring evidence to prove that the accused had intentions by way of common plan beyond reasonable doubt ” prosecution lawyer Florence Akello said.

The defense on the other hand said they would make their opening statements later but had some brief statements to make, 

“Before you is a victim who was not protected; was abducted on his way to school while in Primary Three, indoctrinated, and the government failed to protect him. A kid not liable for crimes alleged,” said Alaka one of the defense lawyers. “We shall demonstrate to this court that the accused did not hold a command position … the prosecution wants to put all the crimes of the LRA on his small shoulders,” he added.

After these submissions, the prosecution called their first witness- an expert witness to support their opening statement. The witness labeled PW1said he is a lawyer and researcher by profession and a senior lecturer at the Institute of International Criminal Justice at Nkumba University in Uganda; with training in Peace and Conflict studies. He also said he served in the Ugandan military force for 24 years before voluntarily retiring in 1999. 
His report was admitted into evidence as PE1 (a) and a summary of the same as PE1 (b) in accordance with the ICD rules of procedure. He went on with his testimony until the third day of proceedings.

Among other things, witness PW1 told the court that his report made four major findings all relating to Human Rights and Humanitarian violations that took place; i.e. there were widespread atrocities all over northern Uganda, he stated that although the conflict ended 10 years ago, its scar still remain to date. “Impacts of war do not end with the war but lives much longer,” he said.
The others findings according to PW1 were that the conflict was well known and characterized extreme brutality on civilians such as mutilation, killings and abductions; the situation presented a large freedom deficit and absence of freedom and that the former residents of IDP camps still continue to experience difficult times such as lack of essential basic needs; there is a dichotomy between traditional and formal justice system within Acholi which he said surfaced in the Juba peace talks which caused a ‘egg and chicken’ debate about what comes first. He summarized his finding on this particular matter by stating that the Acholi traditional system and the formal justice system should not be treated as competitive because both present solutions. He was cross-examined by the defense lawyers on his report and later re-examined in chief

During proceedings the same day, representative of victims Henry Kilama made an oral application to the court in which they requested court to allow him raise some important matters of interest to the victims. The counsel noted that since witness PW1 was testifying on very crucial matters the victims counsel had some issues for him to clarify as regards the context and history of the conflict in northern Uganda; the aim of the LRA rebels and why they targeted civilians. 
“Although aware that it is not the role of victims to establish innocence or guilt of the accused, we want the views of the victims to guide court because it is the backbone of this trial and the duty of victims to assist court establish the truth in regard to the conflict, impacts and not just killings and abductions…,” he said. 

Henry Kilama also told court that he had a text indicating the participation of victims at the ICC and that those best practices should be borrowed and applied locally.
The trial panel discussed with all sides and ruled that, “… it became apparent that the application be made formally because it will enable parties to respond. The application is considered when presented formally,” said one of the trial judges

The next prosecution witness was a protected witness who testified in camera as one of the ways of witness protection

Tuesday, 22 January 2019

Ten years later, bail or no bail for Thomas Kwoyelo

The bail application hearing of former Lord’s Resistance Army (LRA) Commander Thomas Kwoyelo was on January 18 pushed again to February 4, the same day the prosecution will make their opening statement. Kwoyelo who is facing 93 counts of war crimes and crimes against humanity allegedly committed during the LRA conflict in Northern Uganda applied for bail in October last year after 10 years in prison but the International Crimes Division (ICD) of Uganda’s High court has not yet given it a hearing. Since his arrest from the Democratic Republic of Congo (DRC) by the UPDF in 2008, Kwoyelo has been in detention. Kwoyelo’s trial has dragged on for years, unlike his counterpart Dominic Ongwen who is being tried at the ICC, an aspect that has raised questions on the justice process in Uganda. 

The first and second postponement of Kwoyelo’s bail was on November 6 and October 15, last year respectively. The postponements were for two reasons. One because the defense had not organized their sureties and two because there was a request by victims’ representatives for more time to be able to consult their clients. The same reasons caused the January 18 adjournment.
Regardless of a statement made by one of the presiding judges Michael Elubu in September last year on an expeditious trial, “based on the facts on ground, it may take up to about two to three years for the case to complete,” The constant adjournments in this case also means that the victims of the alleged atrocities have to wait for justice. For Kwoyelo, it means waiting for many more years to determine his fate. 

Victim participation, a concept that is new in Uganda’s Jurisprudence is facing a big challenge in Kwoyelo’s trial. In fact it has been at the center of the constant adjournments. As justice is sought in it is worth noting that although perpetrators are of primary importance in any criminal justice process, it’s very important that victims are held close in the on-going trial because their involvement is the driving force to the debates that take place in court. Primary in any court proceeding, victims serve as witnesses to provide court with evidence needed for judges to make their judgment thus supporting court in administering justice for the crimes committed against them.

The new date for the bail application hearing is 4th February, the same day the prosecution is expected to make their opening statement.

Foundation for Justice and Development (FJDI) works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. FJDI has been working on providing redress for conflict affected persons and communities and promoting transitional justice measures since 2015.

Monday, 19 November 2018

Expert witness testifies about spirituality in the LRA movement

Prof. Kristof Titeca a lecturer and researcher based at the Institute of Development Policy (University of Antwerp) testified as an expert witness at the ICC in the case of Dominic Ongwen on November 19. He testified about spirituality and how it is being used in the LRA. The witness has done research in governance and conflict in spaces where the state is only weakly present, particularly in Central and Eastern Africa. He has researched about conflict and rebel movements in the DRC and Uganda, notably the LRA and ADF in the Democratic Republic of Congo, as well as conflict dynamics in Western Uganda and he has closely collaborated with Gulu University and Uganda Christian University.

Prof. Kristof Titeca’s expert report was admitted into evidence in line with ICC rule 68 (3) regulating the admission of a prior written report and related evidences. He told court that he did a research titled ‘Growing in the Cosmological Space’ on request of Ongwen’s defense teamin which he interviewed about 500 respondents including 120 LRA ex-combatants on how spirituality is being experienced by individual LRA combatants and the meaning they give to it as well as the impact of spirits on combatants.

The witness told court that the LRA has several different aspects including spirituality and religion. He said spirituality is a manifestation of cosmology in Acholi land in general. He defined cosmology as the study of the origin and the future of the Universe. He further explained that the LRA uses this cosmological space to control combatants through believes.

“It doesn’t matter the belief but the impact of the belief on individuals…some had extreme belief in the power of spirits and Joseph Kony,” the witness said.

Prof. Titeca added that this spiritual space serves a range of strategic functions for the LRA as an organization, but also is a profound lived experience for the LRA fighters themselves. He further mentioned that in the LRA, Kony is the messenger who talks to the spirits and then gives orders.“So if combatants say spirits have said…it actually means Kony has said,” he explained. He also said some of the ex-combatants he spoke to had supernatural experiences such as dreams which had tendencies of becoming true, speaking to animals and birds et cetera and some of them continued believing even after leaving the LRA movement.

While responding to Beth Lyons- one of the defense Lawyers who cross examined him in-chief, Prof. Titeca told court that spirituality serves a range of control; from protection during battles, sickness and living in the bush in general. “Spiritual rules have to be followed, you can die if you don’t,” he said. He further explained that the level of belief depends on the length of time and experience in the bush. He  said that some respondents had reached a time when they saw miracles such as bullets not being able to shoot them. “Spirituality in the LRA took elements from the Roman catholic church, Islam and the Acholi Traditional religion,” he said.

While responding to Beth Lyons’ question regarding child abductees, the witness said children grow easily into the spiritual space. As to why somebody becomes part of the spiritual space, Prof. Titeca said there are ‘push’ and ‘pull’ factors. He argued that when people are cut-off from normal environment they easily adopt; and that spiritual elements help abductees as means of inclusion into the LRA. “It helps abductees to survive in the bush…they have to behave, otherwise they will be killed,” Prof. Titeca explained.

He went ahead to explain that the LRA movement uses these spiritual elements as a means to survive as an organization and hence the life of a combatant is very thoroughly regulated by Kony who is constantly visited by spirits. He stressed the fact that many rules come from spirits and others from Kony as well as through dreams, but Joseph Kony has a final say on dreams and spirits.

While responding to Beth Lyons, Prof. Titeca said spiritualism in the LRA was more prominent in the beginning than later especially after ‘Operation Iron Fist’ and the Juba peace talk era.

Defense phase of presenting their witnesses is still going on and they are basing their presentations on spiritualism in the LRA in defense of former commander Dominic Ongwen.

Thursday, 15 November 2018

Thomas Kwoyelo’s bail application hearing postponed again

Former Lord’s Resistance Army commander Thomas Kwoyelo appeared at the International Crimes Division of Uganda’s high court sitting in Gulu for his bail application hearing on 15th November, however, the hearing did not take place because defense requested for an adjournment. Defense lawyer- Dalton Opwonya said legal representatives of victims demanded for more time during a status meeting held before the start of the session in the chambers. He actually said, following a ruling that was made on Wednesday 14, allowing some victims to participate in the trial, there is need to give victims’ counsel time to consult their clients before the bail application can be heard. He added that the prosecution had also just received particulars of Kwoyelo’s sureties therefore they needed time to review and verify, and that being a sensitive case, there is need for defense to do thorough legal research on the matter which also needs time.
Kwoyelo is facing 93 counts of war crimes and crimes against humanity confirmed by the pre-trial judge on August 30 thereby paving way for the main trial to kickoff. On November 13 the accused denied all the charges. He is being prosecuted for violating Customary International Law and the Penal Code Act due to war crimes and crimes against humanity alleged committed in Pabbo during the conflict in Northern Uganda.
While responding to defense’ submissions, prosecution lawyer- William Byansi asked court to dismiss the bail application because the defense was not ready, but he agreed on behalf of the prosecution to the need for more time for victims representatives to consult their clients. Defense counsel Dalton Opwonya denied not being ready for the bail hearing noting that it’s due to victims counsel request for more time to consult their clients, “it must be respected,” he said.
Victims lawyer Henry Kilama agreed with the defense request for an adjournment stating that, “It is in the best interest of victims to be catered for… In all fairness all parties should be given a chance,” Kilama said. He requested court to order the registrar of the court to facilitate victims counsel to consult their clients.
In her ruling therefore, lady justice Jane Kiggundu who presided over proceedings noted that prosecution needs time to verify information of the sureties and victims counsel needs time to consult the victims on their views as regards Kwoyelo’s bail application. She then ordered that; the registrar should facilitate victims lawyers to meet their clients and that for every document to be served, it must be within a reasonable time frame. The bail application hearing was adjourned to 18th January 2019.
Meanwhile on Wednesday 14th court delivered its ruling on victims applications gathered and presented to the court by legal representatives of victims to allow them participate in the trial. In the ruling, the trial panel ruled that using pass-fail evaluation, participant group referred to as ‘A’ met the criteria to be admitted to participate while those referred to as ‘B’ did not meet the criteria and those referred to as ‘C’ can reapply upon obtaining further better particulars. The ruling took place at the ICD sitting at Gulu High court.

Tuesday, 13 November 2018

Former LRA commander Thomas Kwoyelo pleads not guilty to all charges

Former Lord’s Resistance Army warlord- Thomas Kwoyelo has denied the 93 charges brought against him by the Directorate of Public Prosecution (DPP) in Uganda. Kwoyelo appeared before the International Crimes Division (ICD) of the High Court of Uganda sitting at the Court in Gulu on Monday 12, and Tuesday 13, November for mention of charges and plea taking. While responding to charges being read by the ICD registrar Harriet Ssali, Kwoyelo said, “I have heard and understood the charge…I did not do it and I don’t know anything about it.” The proceedings attracted a number of people including the Civil Society, and the general public.

Kwoyelo is facing 93 counts of war crimes and crimes against humanity confirmed by the pre-trial judge on August 30 thereby paving way for the main trial to open on September 24, 2018 but it was cut short due to defense objections that the accused was not fully aware of the charges against him due to a poorly translated indictment to the accused. The trial panel was forced to adjourn reading of charges and plea taking to November 12 in order to give time for proper translation to Kwoyelo in Acholi language. The charges result from his alleged role as a top LRA commander during the war in northern Uganda. He has been in detention since the Ugandan army captured him in 2008, and his trial has progressed at a slow pace.

All the charges against Kwoyelo were brought under Customary International Law common to Article 3 of the Geneva Convention of 1949 and the Penal Code Act. In the indictment, prosecution alleges that the accused and others still at large commanded and took part in several violations of the law despite being aware of the outcomes of such acts and the law that protect the victims of such acts. The charges include pillaging, murder, torture, rape, outrages upon personal dignity and other war crimes and crimes against humanity allegedly committed in Pabbo during the conflict in Northern Uganda.

Meanwhile during reading of charges, the defense objected redacted disclosure by the prosecution. The prosecution used codes such as C1, C2, C3 while referring to certain persons as a means of witness protection but Defense Lawyer Caleb Alaka argued that for the accused to plead, all aspects in a charge must be sufficiently understood. “The particulars in the charge sheet must be sufficient to answer…who is C4? If we can’t understand, he can’t understand,” added Opwonya another defense lawyer.
In response to this matter, prosecution lawyer William Byansi insisted that coding of victims was done in accordance with the law i.e. ICD rule 22 (2) of 2016 which provides for redacted disclosure, delayed disclosure and non-disclosure. “It was the only way to protect some of the most vulnerable witnesses since the trial had not yet begun…full disclosure will be done at a later date.” Byansi further insisted that security of vulnerable witnesses is still an issue and there is no other form of protection other than not disclosing their identity, he further mentioned that the scope of disclosure was not properly defined during pretrial.
Legal representatives of victims on their part held that it was almost impossible to know whether the coded victims have a dual status [witnesses and victims at the same time]. “It might not be beneficial to disclose at this point, but the question is, at what point will the court allow disclosure,” said Henry Kilama. He also emphasized that in absence of protective measures, thorough assessment must be done before disclosing identities. “Court should be guided by rules 21, 22 (3) (6) (7) of the ICD rules,” Henry Kilama a victims lawyer argued.
This matter prompted the trial panel to adjourn the session for 20 minutes so as to resolve the matter. When proceedings resumed the defense counsel allowed plea taking to go on by stating that, “The prosecution has consulted the accused and done restricted disclosure…they explained to him in details…we are ready to proceed,” Dalton Opwonya said.
Plea taking ended on November 13, and the matter was adjourned to February 4, 2019 for the prosecution to make their opening statement. The next item is bail application hearing set to take place on November 15.

Thursday, 8 November 2018

To survive in the LRA one needs to do everything asked of him; witness tells court

On November 8th, Odong Audi Kakanyero- a former Lord’s Resistance Army abductee testified in the trial of Dominic Ongwen at the ICC about his relationship with Ongwen, abduction and escape from the LRA. Kakanyero is a born of Corom- a village from where Dominic Ongwen originates.
Kakanyero referred to Dominic Ongwen as his brother, “I should refer to him as my brother because our fathers are clan brothers.” He narrated how the LRA captured him, Ongwen and OpioOloro from Corom on their way to Alero P.7 School where the trio were schooling in 1987. He also explained the initiationrituals carried out to integrate them into the rebel group, which he said created fear and thoughts that something bad would happen to him. “Smearing me with shear butter changed the world for me, I never felt myself after.” Kakanyero recalled.
While responding to Bridgman- one of the defense lawyers who examined him in-chief, Kakanyero told court that Dominic Ongwen was not more than 11 years old at the time of abduction. He further mentioned that they were abducted at a time when the LRA where still relying on stones to fight the government soldiers. He also recalled that while in the bush, they were always told that they were abducted because the new government was forcefully recruiting people to go and protect their cattle in Ankole [South western part of Uganda known for rearing cattle]. “…sothey said we were abducted for our own security, “he explained
The witnesses further told court that while in the bush, they were taken through various trainings by a commander called Omony who he said was a second lieutenant at that time and was in charge of abductees. “They said the training was to enable us protect ourselves.”Kakanyero said. Healso recalled how Lt. Omony attempted to escape from a place near Patiko but was captured and gruesomely buttered to death using an axe.
“…they ordered that Omony be caught and brought back or else people should be killed from his home village.” The witness recalled that, Omony was apprehended and axed to death in front of everyone as a lesson for those who wanted to escape. He told court that this experience coupled with several other killings witnessed later on created a lot of fear in him.
While responding to another question from Bridgman, Kakanyero described Dominic Ongwen as, “a very good child; well behaved and calmest,” amongst all the children with whom they lived prior to abduction. While in the bush, he said there was no time to interact with Ongwen because of constant pursuit by the UPDF. “The only thing is to keep praying to God to keep you alive” he said
He also narrated about his first battle which paved way for his escape three months after abduction. He told court that he was selected among 400 soldiers to attack John Garang’s [late] base in current South Sudan in order to obtain guns. Armed with logs and sticks, the troops were taken to the yard for prayers before setting off for battle. He described the yard as the holiest place in the LRA. While in the yard, they sung praise and worship songs to God to grace the battle.
In the battle, the witness said, he sustained injuries in the stomach and  was taken to a sick bay in Patiko from where he got an opportunity to escape. He stated that his escape was possible because guards in the sick bay were least capable of recapturing him than the ‘special forces’. He added that to be able to survive in the LRA one needs to do everything asked of him.
While responding to Bridgman’s question regarding how Ongwen felt after witnessing killings, Kakanyero said Ongwen was depressed but had nothing to. “If you are in the hands of a beast you have to do what he asks,”he said.
The witness further told court that when he returned home, he found out that Odomi’s [referring to Ongwen] parents were not there and after inquiring, he was told that they were killed by the LRA.
Both the prosecution and legal representatives of victims declined to cross-examine the witness

Wednesday, 7 November 2018

Thomas Kwoyelo’s bail hearing at the International Crime Division postponed

On November 6, the International Crimes Division (ICD) of the High Court of Uganda convened at the ICD court in Kololo for a bail hearing of former Lord Resistance Army (LRA) commander Thomas Kwoyelo, who through his defense lawyers filed for bail recently in an application written to the trial panel.

Kwoyelo is facing 93 charges of war crimes and crimes against humanity confirmed by the pre-trial judge on August 30 thereby paving way for the main trial to open on September 24, 2018 but it was cut short due to defense objections that the accused was not fully aware of the charges against him due to a poorly translated indictment to the accused. The trial panel was forced to adjourn reading of charges and plea taking to November 5 in order to give time for proper translation to Kwoyelo in Acholi language. The charges result from his alleged role as a top LRA commander during the war in northern Uganda. He has been in detention since the Ugandan army captured him in 2008, and his trial has progressed at a slow pace.

Kwoyelo through his defense lawyers however applied for bail recently and court had to handle the matter before the main trial resumes thereby forcing the trial panel to hold a bail hearing instead, on November 5th a date which was earlier scheduled for reading of charges and plea taking.

In his preliminary submission however, defense lawyer Charles Dalton Opwonya asked for an adjournment because the defense was not ready to proceed with the bail hearing. “Our main surety Gilbert Oulanya-MP Kilak County travelled outside the country on official duties and Counsel Anyuru [another defense lawyer] who is mobilizing sureties is sick.” He said. Opwonya added that the defense is aware that the trial will begin on 12th November, “A trial which will take a long time…we are also aware that the accused has already been incarcerated for 9 years that is why we are interested in this application.” Counsel Opwonya added.

The prosecution team on their part was ready to proceed with senior state attorney William Byansi asserting that, “we came ready to proceed and already filed a reply.” The prosecution expressed their disappointment with the defense; in fact, prosecution lawyer Byansi mentioned that, “It’s unfortunate that the applicants themselves are not ready to proceed.” The prosecution went ahead to say that under normal circumstances, they would have prayed for dismissal of the motion, but due to the uniqueness of the case and also many interests, they shall accommodate the adjournment so that defense’s interest be given an opportunity.

Legal representative of victims Henry Kilama on the other hand insisted that victims’ counsels were not served with the motion by the defense despite the fact that they managed to appear in court; a claim which was refuted by the defense who insisted that victim’s lawyers were served with hard copy documents. Henry Kilama also emphasized the need for victim participation to be taken seriously through facilitating the victims’ lawyers to reach out to the victims before the trial resumes on 12th this month.  He further noted that an adjournment would give more time to interface with the victims; In addition, Counsel Kilama said that, the trial panel should consider best interest of victims in their rulings. “The adjournment should be allowed.” Kilama said in agreement with the defense’ request.

Another defense lawyer Caleb Alaka in his response to victims’ lawyers, held that victims’ participation in particular is contrary to the law at this point because the accused is still innocent until he pleads guilty which has not yet been done. Alaka also emphasized that court should consider the uniqueness of this case while delivering rulings.

Kwoyelo’s case is the first war crimes trial in the history of Uganda, and the ICD has had to create new rules of procedure that allow for victim’s participation and other requirements that arise out of Uganda’s international law commitments.

In her ruling judge Jane Kiggundu who presided over the proceeding ruled that, considering the submissions from all sides as well as the laws applicable in which the presumption of innocence is entrenched; she agreed with the defense request for an adjournment. “I agree with the submission of the defense counsel…the accused is therefore remanded in custody until November 15,” when the bail hearing will resume, she ruled. The main trial which resumes on November 12th will proceed concurrently with the bail hearing which will resume on November 15th, 2018