Thursday, 15 December 2016

An ‘Opportunity of a Lifetime’ for Community Leaders from Northern Uganda

On December 6, the trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) started in The Hague. Ongwen is accused of committing war crimes and crimes against humanity in former internally displaced persons’ camps of Odek, Lukodi, Pajule, and Abok, in northern Uganda. Ongwen has been in detention since January 2016 when he surrendered to the Séléka rebels in the Central Africa Republic and was transferred to the International Criminal Court (ICC) to await trial.

To bolster victim participation, the ICC field office, with support from the Danish Embassy in Uganda, mobilized and sponsored a delegation of ten community representatives to attend the opening of Ongwen’s trial.

The delegation was led by His Highness Rwot David Onen Acana, the Paramount Chief of Acholi; accompanied by Archbishop John Baptist Odama, the Archbishop of Gulu Archdiocese; Bishop Nelson Onono Onweng, the retired Bishop of the Diocese of Northern Uganda; Ambrose Oola, the Prime Minister of Ker Kwaro Acholi; and myself as the founder and director of the Foundation for Justice and Development Initiatives (FJDI), a non-governmental organization based in northern Uganda.

Among the delegation also were five community representatives from Lukodi, Pajule, Abok, and Odek.

As part of the visit, the participants not only had the opportunity to witness the commencement of Ongwen’s trial at the court’s new premises, but also met and exchanged ideas with representatives of the ICC. Meetings were held with the Presidency and Judicial Division, the Office of the Prosecutor, the Registry, as well as the parties and participants involved in the trial of Ongwen.

In a statement issued while in The Hague, the delegation noted that “the case of Dominic Ongwen remains very important to us because it is a milestone in defining one way in the attempt to secure justice and accountability for the people of Northern Uganda, and ultimately to help people reconcile with their past and move towards peace.”

Many people in northern Uganda have on several occasions expressed the importance of ensuring that victims follow proceedings as an important aspect of victim participation. The ICC is the first international criminal justice court in history to allow victims to share their views and concerns during all stages of the proceedings through their legal representatives, which is enshrined in both the Rome Statute and Rules of Procedure and Evidence. It was therefore not surprising when all the community representatives were unanimous in expressing their joy at being able to travel to The Hague for this important occasion.

As Esther, from Pajule noted, “I am privileged to have travelled and confirmed with my own eyes that the ICC in fact exists. I saw Ongwen in the court, and this means we have not been told lies about his trial. Even if not all people were able to come, they have at least been represented by us.”

As Justin from Lukodi community said, “We were able to see Ongwen in the court. We saw that he was well dressed and he was treated with respect. The court also gave him time to speak.”

Patrick, a community representative from Odek said, “When I heard that few people had been selected I could not believe it. We saw Ongwen with our eyes even if we did not touch him. We saw the lawyers and interacted with them. This is an opportunity of a lifetime.”

As a result of various meetings held with different sections of the ICC, the participants were also able to get a better understanding of how the court functions, a factor that was also instrumental in increasing their understanding appreciation of the trial process. As Esther from Pajule said, “We were happy to hear about how the court works and how victims and witnesses are protected. This gives us confidence that our relatives who are participating will be protected.”

Justin from Lukodi agreed with the above opinion, noting that, “The functioning of the court was made clear to us. We toured the court and met with various representatives. This made us to believe that there is transparency at the ICC.”

The community representatives were also immensely impressed by the new structure that houses the ICC premises. Although many of the participants were overwhelmed by the security protocols in place, they thought the facilities contained in the building were excellent, including the courtroom and office spaces. As Justin from Lukodi said, “The setup of the court is very good. The courtroom is set in such a way that visitors can follow proceedings without interfering with the work of the judges and lawyers. This is not the case in Uganda where someone from the audience can easily reach the judges and lawyers and even attack them.  The equipment being used is also very good, and we do not have this in Uganda.”

In addition to the delegation from Uganda, there were many other visitors also present in the public gallery for the first day of the hearing, including many students, journalists, and researchers. This is a matter that did not go down well with one of the community representatives from Abok who said, “Students and journalists were the majority in the court. This makes us to think that the court is being taken as a learning opportunity. There should have been more community and victims’ representatives.”

Over the course of two days, the community representatives attended the court sessions and watched as the prosecution team made its opening remarks. Some of the representatives later remarked that the gruesome pictures of the killings in their communities that were displayed by the prosecution evoked strong memories in them. In a comment that did not go well over with Archbishop Odama and Bishop Onono, Francisco Cox, one of the victims representatives, noted in his opening remarks that “[i]t is usually people that did not suffer consequences of Ongwen’s crimes that ask for forgiveness.” Otherwise all the community representatives felt that the hearing had gone well.

It can be concluded that the initiative by the ICC field office and Danish Embassy in Uganda achieved its intended impact of promoting community participation and increased the community representatives’ understanding and appreciation of the ICC. Furthermore, community representatives will be expected to engage in public outreach and share their experiences back home.  However, as noted by one participant, to increase impact the court should consider bringing a larger delegation of people living in communities affected by the alleged crimes of the accused.

Ongwen’s trial resumes on January 16, 2017. International Justice Monitor will be following the trial, and regular updates will be posted to the LRA Trials page.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.

Friday, 9 December 2016

Statement by Ugandan cultural, religious, community and civil society leaders attending the opening trial of Dominic Ongwen at the ICC in The Hague Netherlands – 5-8 December 2016 -

Statement by Ugandan cultural, religious, community and civil society leaders attending the opening trial of Dominic Ongwen at the ICC in The Hague Netherlands
– 5-8 December 2016 -

From 5 – 8 December, we attended the opening of the trial of Dominic Ongwen in The Hague, The Netherlands as representatives of our communities in Northern Uganda Led by His Highness Rwot David Onen Acana the Paramount Chief of Acholi, accompanied by Archbishop John Baptist Odama the Archbishop of Gulu Archdiocese, we not only had the opportunity to witness the commencement of the trial of Dominic Ongwen in the Court’s new premises but also met and exchanged ideas with representatives of the International Criminal Court (ICC): Presidency and Chambers, Office of the Prosecutor, Registry, and the parties and participants involved in the trial of Dominic Ongwen.

Dominic Ongwen has come before the ICC for trial following an indictment for crimes against humanity and war crimes he is alleged to have committed as a senior commander of the LRA.
Over the years during and after the conflict in Northern Uganda, cultural, religious, community and civic leaders have been the centerpiece for peace and reconciliation. They were instrumental in the outcomes of the Juba peace process. Today, the case of Dominic Ongwen remains very important to us because it is a milestone in defining one way in the attempt to secure justice and accountability for the people of Northern Uganda, and ultimately to help people reconcile with their past and move towards peace.

As leaders and representatives of various groups and interests in the Acholi region, we note that various grave crimes were committed in Northern Uganda during the time the LRA was active in Uganda; the nature of the crimes committed violated traditional, Ugandan and international law and therefore warranted action against perpetrators in terms of securing justice for the victims and holding the perpetrators accountable. With the ICC process, we believe that matters related to such crimes will be adjudicated.

Beyond Dominic Ongwen’s specific case, the Acholi people still have to contend with the broader question of justice and accountability arising from the conflict. The fact that the LRA is still out there obliges us to remain focused on the broader issues of peace reconciliation, justice and accountability. Indeed other mechanisms do exist in Uganda that have been extensively used in handling matters relating to obtaining accountability from perpetrators and securing justice for victims in the LRA conflict, including the law in Uganda and the traditional law norms, values and practices of the Acholi people. Though mechanisms and certain definitions may differ, the Acholi justice system gives a broader context and definition to questions of accountability and justice which is hinged primarily on restorative justice other than a punitive one.

Since justice is a long process especially when it is searching for truth, we call upon our people to allow the judicial process and those who wish to testify to come and do so without any fear of reprisals. We also urge the international community and the Government of Uganda to remain focused on the wider question of transitional justice in Northern Uganda which remains largely unattended to and is grossly affecting many lives.

This trial is at its beginning and we hope to see it continue smoothly and be beneficial to the victims of Northern Uganda.

We express our gratitude to the Danish Embassy in Uganda for its financial assistance and to the ICC for having planned and coordinated the visit.   

Rwot David Onen Achana
Archbishop John Baptist Odama
Bishop Onono Onweng
Olaa Ambose
Innocent Olwoc
Patrick Sila Lakwonyero
Lino Owor Ogora
Betty Piloya
Esther Aol
Justine Ochan

Monday, 5 December 2016

Hopes and Expectations: Perceptions of Victims and Civil Society on the Eve of Ongwen’s Trial

The trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) is due to start Tuesday at the International Criminal Court (ICC) in The Hague, with opening statements from the prosecution and the victims’ representatives.  Ongwen is charged with 70 counts of war crimes and crimes against humanity, allegedly committed in the former IDP camps of Odek, Lukodi, Pajule, and Abok in northern Uganda.

In light of this, the International Justice (IJ) Monitor  conducted a brief consultation with community members and select representatives of civil society organizations (CSOs) working in northern Uganda to get an understanding of what their expectations about the trial was.

The overall reactions were mixed. While many of them were happy that the trial was finally getting underway, they also expressed reservations about certain aspects. Even though all the respondents who were consulted expressed their support for the trial, many still stressed that the trial is not a comprehensive solution for solving post-conflict challenges that continue to exist in northern Uganda.

As Francis Opio from Grassroots Reconciliation Group (GRG) said, “Stating whether the trial will be a good thing for bringing justice to people in northern Uganda would be relative. It should be noted that when it comes to rebuilding relationships, an aspect that is very important in our culture, the ICC is not helpful.”

Expressing a similar view, Chris Ongom, the Director of the Uganda Victims’ Foundation (UVF) said, “The trial of Ongwen will address a very tiny part of the justice. It will send a signal to international community that Uganda is committed to fighting impunity. However, the suffering and causes of the war in the northern is rooted in the structural systems of governance so this trial won’t bring total justice to the people.”

In regard to the above, some of the participants who were consulted suggested complementary measures such as the use of traditional justice mechanisms for the promotion of reconciliation and the pursuit of accountability domestically.

Another expectation that was frequently mentioned by respondents who were consulted was the need for a fair trial based on evidence and the importance of ensuring the impartiality and neutrality of the court. Rosalba Oywa, who heads the People’s Voice for Peace (PVP) said, “I will keep my fingers crossed. I think they will penalize Ongwen if he is found guilty and if the verdict is based on evidence.”

James Engemu, a human rights activist from Teso sub-region said, “I expect that the trial will be a true hearing and that the verdict will rely on real evidence not purported issues. The judgment should be very impartial.”

Hellen Acham, a peace-building practitioner from Lango sub-region said, “As far as the hearing is concerned, we are looking forward to the impartiality of the court. The victims must not be intimidated, and the court must administer justice. It should not end up like the Kenyan one where some of the victims were threatened.”

In addition to the above, most respondents also expressed the need for a speedy trial in order to ensure justice for the victims. As Nathan Ebiru, the head of the Amuria District Development Association (ADDA) said, “Being a victim myself and a person working for the victims in Uganda, I expect the trial to be expedited in favor of victims.”

All in all, most people who were consulted agreed that the ultimate determinants of whether or not justice will have been attained at the conclusion of the trial will be the victims themselves. In the words of Oywa, “It shall depend on the victims…Victims are the ones who are key in saying whether they are satisfied or not.”

With the ICC investigations focused mainly on four case locations linked to crimes allegedly committed by Ongwen (Lukodi, Odek, Abok, and Pajule), IJ Monitor asked participants whether they believed that the trial would serve as a mechanism for brining justice to all victims in northern Uganda, including areas outside the Acholi sub-region. There were mixed reactions to this question. Some respondents believed that the limited geographic scope did not matter and would still result in justice for all victims in northern Uganda. “If the trial is based on critical evidence, victims of Ongwen’s crimes will get healing in Teso, Lango, and Acholi. If the victims see Ongwen [acquitted] and walking free, they will get angry,” said Engemu.

In the words of Acham, “In one way or another, the victims will feel that there is someone concerned with their suffering. It will bring justice to northern Uganda. Even the current prevailing peace in northern Uganda is being enjoyed because of the indictment of Ongwen.”

Other respondents, however, believed that the current scope of investigations excluded victims from other sub-regions. According to Ebiru, “There are quite a number of victims who have not been reached in Teso sub-region. The areas that have been identified in the charge sheet do not extend to Teso. I don’t see much hope in this. But what every victim and community wants is that Dominic Ongwen must be made accountable for his crime.”

Respondents who were consulted also expressed expectations regarding victim participation. Many reiterated the need to ensure that victims follow proceedings. It was the expectation of many that the trial would be broadcast live. As Opio from GRG said, “Live screening of the trial process will allow victims to follow the process giving them ground to react to some of the issues when called upon.”

In anticipation of this demand, the ICC field office in Uganda has set up viewing centers in the four communities of Lukodi, Pajule, Odek, and Abok. According to Maria Mabinty Kamara, the ICC Field Outreach Coordinator for Kenya and Uganda, “A viewing center will also be opened in Coorom, the birthplace of Ongwen to provide access of the judicial processes to his family members, his relatives, and clan members.” Additional viewing centers have also been set up in Gulu town and in Kampala to enable people outside the affected communities to participate.

The ICC field office has also made arrangements to web stream proceedings from the opening of the trial in the Acholi language and on two radio stations in northern Uganda. According to Kamara, “For the first time, the court has provided the options for the proceedings to be web streamed in Acholi. This means that followers can actually select from the list of languages and follow their preference. So Mega FM Radio and Gulu FM Radio will broadcast live from the Acholi channel. It has not happened so far in other cases.”

At all these centers the ICC field office has provided the equipment necessary for conducting live streaming broadcasts from The Hague and has conducted outreach to sensitize and encourage many people to go to these centers, which are open to the public free of charge. However, it is not known whether the ICC will conduct live broadcasts throughout the trial itself.

Findings from the consultation also revealed that respondents still strongly believe that the physical presence of victims during hearings is important for victim participation in the trial. As Acham said, “Victim participation is very important. There will come a moment where some victims will request to attend hearings by themselves. Since there are very many victims, election of people to represent them is important.”

According to Ongom of the UVF, “The court says that they don’t have money to facilitate victims [to attend the trial]. It sends doubt to the victims, because the small window of hope is being narrowed. The victims should have been air lifted to attend the trial, if truly [the court] values the victims.”

In anticipation of this demand, the ICC field office, with support from the Danish Embassy in Uganda, chose 10 influential representatives from the affected community to attend the opening of the trial. In a press briefing conducted in Uganda, Kamara said, “These people will attend and follow the proceedings at The Hague so that they explain what they will have witnessed upon return. This will help build trust of the community in the ICC processes.”

All in all, respondents expected to be kept informed during the entire duration of the trial and not simply at the beginning or at the end. As Ebiru said, “I recommend frequent consultation with the victims throughout the trial and provision of feedback to them on a frequent basis. Victims should know how far the case has gone and must be kept informed at all times.”

In addition to the above, a few respondents also expressed the need to ensure that victims and witnesses are protected. In the words of Oywa, “Participation is important to the public, and the ICC has worked towards ensuring that this happens. But I am not sure what is being done towards victims and witnesses’ protection. This trial is sensitive and can put the victims at risk which would not be a good thing.”

A final expectation that was expressed by all respondents was the need to ensure that reparations are implemented at the conclusion of the trial in the event that Ongwen is found guilty.

In the words of Engemu from Teso, “If Ongwen is convicted, then the court should provide reparations for the victims. Victims are in need and reparations must be expedited in order to provide justice. The Trust Fund for Victims should play its role to the vulnerable victims.” It is clear from community members, as can be seen in previous blog posts, that reparations will be central in determining the success of Ongwen’s trial.

In conclusion, as presented by the views expressed above, the trial of Ongwen has generated excitement and anxiety in equal measures. It is clear that while many people want a speedy and fair trial, they also believe that important aspects, such as victim participation and reparation, must be addressed if the trial is to be viewed as successful.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.

Thursday, 10 November 2016

Why Reparations Will Be Central in Determining the Success of Ongwen’s Trial

Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) has been in the custody of the International Criminal Court (ICC) since January 2015 on charges of war crimes and crimes against humanity. Ongwen’s trial, due to commence on December 6, 2016, presents the best opportunity yet for victims of conflict in northern Uganda to receive reparations but only in the event that Ongwen is found guilty.

As ICC Outreach Coordinator for Kenya and Uganda Maria Mabinty Kamara explained in a conversation, ”Reparations can be ordered by the court only after the trial is concluded and if the accused is found guilty. In such eventuality, the court may issue an order for reparations to victims of the crimes and to establish the monetary liability of the convicted person for their crimes. Reparations for victims may be individual, collective, or both. The form and manner of reparations is dependent on a number of factors including the scale and scope of the crimes in the conviction, the number of victim harmed by the crimes, and the source and magnitude of funding for reparations are among the important factors to be considered by the court when deliberating reparations.”

Setting aside that it may still take several years to come to a conclusion about reparations in the event of a conviction, as evidenced by the first ICC trial of Thomas Lubanga, this article looks at what victims in northern Uganda would ideally like from a reparations program.

Uganda as a country has been ravaged by different conflicts since attaining independence in 1962. The longest and most brutal of these conflicts has been the war between the LRA and the government of Uganda, in which Ongwen is alleged to have committed the crimes with which he is charged. However, despite the intensity of human rights violations, destruction, and loss of property that has marred Uganda’s history, there has never been a formal reparations program developed and implemented by any government.

Reparations for victims of the LRA war and debates surrounding it have always been a topic very much shunned by the current government in Uganda. Post conflict development programs, such as the Peace Recovery and Development Plan (PRDP) for northern Uganda, have been criticized for overly focusing on development programs at the expense of peace building programs that include reparations. For example, one of the most important pillars of the PRDP on peace building and reconciliation constituted only 2.7 percent of an entire budget of $606 million. Matters are not helped by the fact that Uganda lacks a reparations policy despite its violent past.

The prospect of reparations presented by the Ongwen case before the ICC is the first real opportunity that victims in Uganda will have had to benefit from a formal reparations scheme. This is why reparations will be crucial in determining the success of the trial. Already, thousands of victims have registered to participate in the trial of Ongwen, a clear sign that they are looking forward to reparations.

The UN basic principles and guidelines on the right to a remedy and reparations calls upon states to make available adequate, effective, prompt, and appropriate remedies, including reparations for victims of gross violations of international human rights law and serious violations of international humanitarian law.

Article 75(1) of the Rome Statute of the ICC stipulates that “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

Rule 97(1) of the ICC Rules of Procedure and Evidence further states: “Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.”

While the above guidelines and rules establish general principles on reparations, they do not explicitly provide a breakdown of the type of reparations that victims are entitled to. The ICC has started to consider and make decisions in relation to reparations in other ICC cases, but those decisions are related to the specific circumstances to each case. Therefore, the court will have to consider many different options when it comes to providing reparations for victims of Ongwen’s alleged crimes, provided that Ongwen is found guilty. The reflections below on victims’ preferences for reparations will be relevant in case of a conviction. As per the experience of other ICC cases, victims should have an opportunity to voice such preferences, through direct consultations or via their legal representatives.

The first and most important option that is frequently mentioned by community members is cash compensation, or ‘cul,’ as they refer to it in the Acholi language. While consulting with victims in the process of writing this article, all individuals who were interviewed from the communities of Lukodi, Odek, Pajule, and Abok, mentioned cash compensation as the most desired form of reparations they were looking forward to. As one community member in Lukodi said, “People want money to help them to meet their needs, such as paying school fees for their children.”

Another community member noted, “People are highly expectant that they will be paid. I cannot say how much people expect because that is a matter for the court to determine. Even if it is little, we expect that at least some money will be paid.”

The above is an indicator that while money cannot be an end in itself in undoing the harm that was suffered, many victims consider it important in enabling them to live dignified lives. Many of these victims lost their property as a result of attacks and killings that happened in their communities. In the aftermath of the conflict they have little to rely on to sustain themselves and their families. It is therefore not a surprise that most of them express interest in receiving cash compensation, which they believe is a means to living their lives in dignity.

Other forms of individual reparations that are considered important by community members are education and healthcare for survivors. As a result of the atrocities committed in their communities many children who were orphaned are finding it difficult to meet their educational needs, and many survivors still live with health complications suffered as a result of injuries they suffered. In addition, the livelihoods of many survivors were disrupted and victims recounted how they lost livelihood sources, such as cattle. These victims would like to see reparations in the form of a replacement of their stolen or destroyed property.

Victims could also benefit from programs that help them earn a living again in the affected communities, give educational scholarships for children who were orphaned, and provide a medical care for survivors who still have serious health problems. As a community leader in Abok said, “We have victims who were disabled permanently as a result of the atrocities they suffered, and they are finding it very difficult to survive. There are people who still have health complications. They need to get medical assistance.”

In addition to cash compensation and other individual forms of reparations, collective reparations schemes may be beneficial. Those would include projects such as the construction of monuments and memorials for victims who lost their lives in the affected communities. As one community member in Lukodi said, “There should be structures that benefit the community and help them to heal. These can include things like monuments or community centers where information about what happened during the conflict is kept.”

While communities like Lukodi and Odek have memorials that were sponsored by civil society organizations, others like Pajule and Abok do not have any tangible memorials. Victims may wish to have existing memorials improved or rebuilt, or to build new ones in communities that do not have any. However, as one community member emphasized, this would rank second on their list behind cash compensation: “Monuments and memorials would be good, but people prefer individual payments.”

If Ongwen is found guilty for crimes committed in the four communities concerned by the charges,  only victims from those communities would benefit from reparations programs. However, victims in other parts of northern Uganda similarly believe they are entitled to reparations. A community member from Lukodi said, “Ideally we [all victims in northern Uganda] should have all benefited because we all suffered. The challenge that I see is that the policy of the ICC may not allow it. But as community members of Lukodi we welcome the idea of all people in northern Uganda benefiting from reparations by the ICC.”

A case in point is Atiak village, located near the border of South Sudan, where over 300 civilians were massacred in a single day by the LRA. However, Atiak is not among the locations where Ongwen is charged with crimes by the ICC.  As one community member from Atiak village, who also happens to be a survivor of this massacre said, “People in Atiak should also [be] compensated… Those who say Ongwen did not operate in Atiak should tell us how they reached that conclusion. The people in Atiak are also victims of the LRA like those ones in Lukodi.”

The above indicates that victims outside the communities of Lukodi, Odek, Pajule, and Abok may be angered by their exclusion from any proposed reparations program. This is because they feel strongly that a reparations scheme must benefit the whole of northern Uganda, not just victims from the four communities Ongwen is charged with committing crimes in. Therefore, it would be important to start providing clear explanations to victims now so that they understand the limitations of any future reparations plan.

However, Kamara noted that victims outside the four communities can still benefit from assistance offered by the ICC Trust Fund for Victims (Trust Fund), which can implement assistance projects for the benefit of victims not concerned by ICC cases, i.e. victims who suffered crimes as a result of the conflict in northern Uganda from 2002 onwards but whose crimes are not reflected in the Ongwen case.

”Independent of the reparations related to a specific case, the ICC Trust Fund for Victims has spent 22.7 billion shillings (UGX) on its victim assistance program in northern Uganda from 2008 to 2016. The Trust Fund’s victim assistance program in Uganda have benefited an estimated 43,000 victims and their families and more than 200,000 indirect victims in the community. The Trust Fund implements an integrated assistance program in partnership with NGO’s to provide physical and psychological rehabilitation and material support to victims and their families in communities across 18 districts of northern Uganda,”  said Kamara.

However, should there be a conviction, Ongwen will possibly be unable to pay for reparations if he is found indigent. Reparations would therefore likely be funded through the Trust Fund, whose resources are limited. It would be important for the ICC and NGOs assisting victims to start managing expectations on reparations as early as possible. In light of the limitations of ICC reparation programs and considering the state’s obligation, the government of Uganda should also fulfill its duty to provide reparations.

There is clear evidence of the high expectations victims have in regard to reparations concerning the case of Ongwen. The fact that there has never been a formal reparations program for victims of conflict in northern Uganda further raises these expectations. For victims, it may be the only sign of a successful trial.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local non-government organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.

Friday, 4 November 2016

A Reversal of Roles: How the Government and Victims in Northern Uganda Have Switched Their Positions on the ICC

Opening statements in the International Criminal Court (ICC) trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) who is charged with committing war crimes and crimes against humanity in northern Uganda, are scheduled to begin December 6, 2016. Ongwen’s trial, however, comes after several years of an uphill battle by the ICC to win support in Uganda. Having been asked to investigate the LRA for war crimes and crimes against humanity in 2004, the ICC is today openly criticized by the very government that invited it in the first place. Oppositely, the ICC now has significant support from conflict-affected communities who initially opposed it.

The ICC’s involvement in Uganda started in 2004 with a referral by the Ugandan government, asking the ICC to investigate the LRA for war crimes and crimes against humanity committed in northern Uganda. The ICC’s intervention came at a time when the conflict in northern Uganda was at its peak, with the LRA carrying out daily attacks against the civilian population, the majority of whom were living in internally displaced persons’ (IDP) camps.

Given the prevailing situation, the ICC’s entry into Uganda was met with stiff opposition from religious leaders, traditional leaders, civil society organizations, and other peace activists who argued that the ICC would interfere with ongoing efforts to end the conflict. An amnesty program was being promoted to encourage LRA combatants to abandon the rebellion, and this had tremendous success leading to the surrender of thousands of rebels. The Juba Peace Talks were also about to commence under the mediation of the government of South Sudan. The ICC was therefore seen as a destabilizing factor that would increase the LRA’s resolve to continue with rebellion.

Despite the above negative sentiments, the government of Uganda went ahead and referred the situation in the country to the ICC. The announcement of the decision to begin an investigation by the ICC was made at a joint press conference convened by the ICC prosecutor and attended by President Museveni, in London on January 29, 2004. The ICC relied on the government for gathering evidence and making decisions on which LRA commanders to prosecute, and the government cooperated with the court’s requests. For example, during Ongwen’s confirmation of charges hearing, the prosecution relied heavily on radio communication interceptions gathered by the national army, Uganda People’s Defense Forces (UPDF).

Backed by the government on the one hand, but opposed by conflict-affected communities on the other hand, the ICC met a hostile reception, particularly in northern Uganda. In response, the ICC’s then-Public Information and Dissemination Section (PIDS) in Uganda heavily engaged in a public relations campaign aimed at promoting an understanding of the ICC and changing public perceptions. Numerous community visits were made, hundreds of radio talk shows were conducted, and several information sessions were held. The people in northern Uganda slowly came to appreciate the ICC and what it stood for.

The return of peace to northern Uganda further helped to change community perceptions about the ICC. More than ten years ago when they virulently opposed the ICC, the conflict in northern Uganda was at its peak, and thousands of people were confined in IDP camps. The people in northern Uganda simply wanted the conflict to end and viewed the ICC as a destabilizing factor that would disrupt the ongoing peace processes. With the end of the fighting, however, many survivors became willing to support accountability processes.

The capture of Ongwen is perhaps another factor that played a role in further changing community attitudes about the ICC. When the ICC intervened in 2004, nobody believed it was possible to capture the LRA top leadership, who had evaded the Ugandan army for close to two decades. Many people who wanted peace were quickly disappointed when they discovered that the ICC had no army and relied instead on the government. With the capture of Ongwen and a trial actually in the offing, the trust of many people in the ICC has been restored. Many victims now look forward to reparations in the event that Ongwen is convicted.

Far from the hostile reception it received in 2004, the ICC today enjoys a much higher level of popularity, demonstrated by a show of public support from local leaders, civil society organizations, and conflict survivors. For example, on May 19, 2016, Rwot David Onen Acana II, the Acholi Paramount Chief publicly expressed support for the ICC at a ceremony commemorating the anniversary of the Lukodi massacre. The support for the ICC has also been demonstrated by the mass registration of thousands of victims to participate the trial of Ongwen.

The government of Uganda, on the other hand, has turned into a bitter critic of the ICC. Contrary to the cooperation exhibited in 2004, the government is one of the biggest critics of the ICC today, not just in Uganda, but in Africa as a whole. Indeed President Yoweri Kaguta Museveni, who led efforts to invite the ICC in 2004, has recently been one of the foremost opponents of the court. But why?

The first reason has to do with the question of why the government called in the ICC in the first place. Some proponents, in what has been referred to as the politics of the ICC, have argued that the government referred their situation to the ICC not because they wanted the LRA prosecuted, but because they had failed to defeat the LRA. The government’s strategy at the time was to isolate the LRA in the face of the international community. The government was never genuinely interested in prosecution of the LRA.

The second factor lies in Uganda’s fear of a possible ICC intervention in the future as a result of the deteriorating political situation in Uganda. President Museveni has been in power for over 30 years, facilitated by a repeated amendment of the constitution and a violent crackdown of the opposition. In the run up to the last presidential election, held in February 2016 and thereafter, the government used extreme force to suppress the opposition. The current situation points to a future where crimes against humanity are inevitable as the government, through police brutality, suppresses any opposition, a factor that will put Uganda on a collision course with the ICC. Uganda’s attempt to distance itself from the ICC could therefore be in a bid to avoid a scenario of the Kenyan situation when the ICC intervened following the post-election violence in 2007. Although a formal withdrawal from the ICC would be the only way to more effectively avoid future ICC interventions.

Matters are also not helped by the wave of unpopularity against the ICC that is currently taking hold across the African continent. African states, led by the African Union (AU) believe that the ICC is a biased institution focusing only on the prosecution of African leaders. This is demonstrated inter-alia by repeated demands from African states that immunity should be granted for sitting heads of state. As an act of defiance against the ICC, many African ICC member states have allowed Sudan President Omar Hassan Ahmad al-Bashir, who is wanted by the ICC for war crimes, crimes against humanity, and genocide, to travel freely to their countries rather than arresting him. Most recently on October 18, 2016, Burundi’s parliament passed a resolution for the country to withdraw from the ICC. In the days following Burundi’s decision, both South Africa and Gambia also formally communicated their intention to withdraw from the ICC.

Uganda, as a key player in the African Union, has also been vocal in criticizing the ICC. At the swearing in ceremony of Kenyan President Uhuru Kenyatta on April 09, 2013, President Museveni referred to the ICC as an institution that was being abused by western powers to promote their agenda. In a show of opposition to the ICC, President Museveni invited President Al-Bashir to Uganda for his inauguration in May 2016, where he called the ICC “a bunch of useless people.”

As the ICC prepares to commence the trial of Dominic Ongwen in December, it remains to be seen how it will deal with hostility from the Ugandan government. The government of Uganda’s support is critical in ensuring the success of the trial of Ongwen and any future trials that the ICC may hold for the other LRA commanders who are still at large. The outcome of the trial and whether or not victims get reparations will also be a key determinant of the ICC’s popularity with conflict-affected communities.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local non-government organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.

Tuesday, 1 November 2016

The Importance of Comprehensive Outreach in the Case of Ongwen and the Role of Civil Society Organizations

On December 6, 2016, the International Criminal Court (ICC) will commence the trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) charged with committing war crimes and crimes against humanity in the villages of Lukodi, Odek, Abok, and Pajule, in northern Uganda. A key factor that will be significant in ensuring awareness and understanding by victims and the general public in Uganda will be community outreach.

Since the court opened its investigation in 2004, the ICC field office in Uganda has been involved in conducting outreach in the northern part of the country to educate the population about the ICC and how it operates. After the capture of Ongwen in 2015, the ICC field office intensified their outreach activities in the four locations where Ongwen is accused of committing crimes. While the bulk of outreach in northern Uganda has been conducted by the ICC field office, it receives support from local, national, and international Civil Society Organizations (CSOs) working in LRA affected areas. With the commencement of Ongwen’s trial, outreach may need to be conducted on a wider scale and done more frequently to ensure that the people living in affected communities, as well as throughout northern Uganda, are regularly updated and are able to follow proceedings. Community outreach visits and information dissemination over mass media will also be required.

In a conversation I had with Maria Mabinty Kamara, the ICC Outreach Coordinator for Kenya and Uganda, she noted that “outreach impact in the field is significantly enhanced when its communication efforts are complemented by CSOs, local leaders and other influential opinion leaders.” CSOs are well positioned to reinforce the ICC field office, particularly in providing the additional human resources that are needed. As Kamara commented, “Following the ICC Registry revision, field offices are staffed [with] multidisciplinary teams comprising four staff that are charged with the responsibilities of conducting outreach and victims’ participation related activities in Uganda. Field outreach staff members are not always present in all locations in the affected communities.”

CSOs can be key in ensuring that that there is an adequate, accurate, and timely information flow to and from grassroots communities using the appropriate and available channels. This is important because Ongwen’s trial is the first involving a senior commander of the LRA, so extra attention is anticipated locally and nationally.

As demonstrated by previous events, such as Ongwen’s confirmation of charges hearing, CSOs can help mobilize the local population and ensure that events are culturally relevant. As Kamara noted, “During the recent outreach activities organized to prepare the ground for the implementation of victims’ participation application process, through partnerships with various CSOs and local community networks, a total of 31 forums that reached 14,000 potential victims were held. As a result, over 2,000 application forms were collected.  In conclusion, when and wherever it is possible, we are already working through partners to complement our limited capacity.”

The need for the involvement of CSOs in outreach is further reinforced by the fact that many are already involved in working within conflict affected communities in northern Uganda, implementing programs on peace-building and other justice related matters. Such CSOs interface with these communities as they go about implementing their program activities. As these CSOs interact with communities in their routine work, they can be instrumental in updating them about what is happening in the trial of Ongwen. CSOs will therefore need to consider holding information sessions about the trial in the course of their work. Kamara explained that “it is crucial for CSOs that are readily available on the ground, through their various justice and human rights programs, to complement our efforts by providing factual information about the judicial processes to their communities.”

Using these information sessions, CSOs can help provide answers to questions that community members may have. The frequent presence of CSOs in communities can ensure that there are always opportunities for community members to ask questions, receive answers, and in the process clarify misperceptions that exist.

Furthermore, as demonstrated by cases such as the first ICC trial of Thomas Lubanga, trials can turn out to be long, often spanning many months or several years, a factor that could lead to loss of interest on the part of communities. CSOs are vital in ensuring that there is sustained interest by victims and community members in the trial process.

CSOs can also be instrumental in helping to manage expectations of community members. At the moment, thousands of victims have registered to participate in the case of Ongwen, and they may expect reparations at the conclusion of the case. These expectations need to be managed, especially in terms of the time any reparation order from the ICC may take. Given their frequent presence on the ground, and the fact that many of them have formed strong personal relationships with victims living in conflict-affected communities, CSOs are needed to inform the community of what they can or cannot expect out a future reparations scheme.

CSOs can also act as gateways to conflict-affected communities in northern Uganda. With the start of Ongwen’s trial, northern Uganda, and more specifically the four communities of Lukodi, Odek, Pajule, and Abok, are likely to attract hundreds of visitors, researchers, and academics. In 2010 when Uganda hosted the ICC Review Conference in Kampala, visitors who came to attend the conference also visited communities in northern Uganda that were impacted by the conflict. With CSOs present on a daily basis in these communities, they can act as a vital link and gateway to visitors who would want to visit these communities.

In many cases outreach is more effective if there is involvement of all relevant stakeholders, including community based organizations, local leaders, and community members. This ensures that there is ownership of the outreach process and that the right locations and the right participants are selected. CSOs, based on their frequent interactions with community members are vital in ensuring that there is local involvement and that the right locations are targeted.

CSOs also provide good avenues for referrals for victims who may not be covered by ICC reparations schemes or assistance offered by the Trust Fund for Victims. This is because in the course of conducting outreach, it is common to come upon cases of victims requiring immediate assistance, such as medical care or even protection. While the ICC outreach office may not be in position to help these victims immediately, CSOs can often use their networks to refer such victims for assistance.  It is therefore a strong reason for the ICC field office to involve CSOs in outreach sessions.

Finally, CSOs are critical in ensuring the sustainability of outreach activities in the event that the ICC’s mandate comes to an end. For example, prior to the capture of Ongwen in 2015, the ICC was in the process of scaling down its operations in Uganda and moving its offices to Nairobi. As part of its exit strategy, the ICC was relying on CSOs to continue conducting outreach in northern Uganda. With the LRA still at large in the Central Africa Republic and the Democratic Republic of Congo, there will be need for outreach in Uganda even after Ongwen’s trial is concluded. CSOs can help step in to fill the vacuum created by the departure of the ICC.

The involvement of CSOs in outreach, however, also presents certain challenges. In the first instance, there is the risk of CSOs being perceived as doing the ICC’s work. In other words, the involvement of CSOs could create less pressure for the court to fulfill its obligations in undertaking outreach activities. Additionally, with the hostile climate towards the ICC in some African countries, it can be dangerous to be seen as affiliated with the court. Each CSO therefore needs to make an assessment about how it undertakes its activities in light of this, if they are concerned about maintaining their independence. This is a matter not to be taken lightly.

Another challenge could relate to ensuring that there is harmonization of information. This is because if outreach is being conducted by many stakeholders, then it is likely that information disseminated may not be uniform. In addition, sometimes there are messages that the ICC needs to deliver itself, while sometimes CSOs and community members may want to “detach” themselves from certain messages so that there’s no perception that they agree or support a certain development or decision. In relation to this, CSOs may want to take positions on certain matters and that may be incompatible with neutral outreach activities. Finally, in some contexts, CSOs may contribute to raising expectations rather than managing them.

The above challenges point to the fact that while the ICC may need to work closely in collaboration with CSOs to ensure that outreach is well coordinated and achieves the intended impact, it must also at times respect the independent nature of CSOs. However, as demonstrated above, CSOs in in northern Uganda could play a role in outreach activities and the benefits of involving them in can outweigh the challenges. With the start of Ongwen’s trial looming closer, CSOs will be vital in ensuring that there is comprehensive outreach.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. The opinions expressed above do not necessarily reflect the views of Open Society Justice Initiative.

Thursday, 27 October 2016

To Participate or Not? Getting Victim Participation Right in the Kwoyelo Case

Colonel Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) is currently on trial before the International Crimes Division (ICD) in Uganda. He is charged with committing war crimes and crimes against humanity during a two decades-long war that ravaged northern Uganda. In preparation for the main trial, the ICD has so far held three pre-trial hearings in April, August, and September 2016 respectively.

On September 23, 2016, the ICD issued a landmark ruling on victim participation, allowing victims to participate in the proceedings akin to their right of participation before the International Criminal Court (ICC). Due to its recently adopted Rules of Procedure, victims in proceedings before the ICD are entitled to a wider range of rights than in criminal proceedings before ordinary courts. However, the exact extent of when and how victims can intervene and participate is not regulated in detail. As the case against Kwoyelo is the first case before the ICD, it is now setting the stage for victim participation at the ICD and creating a precedent for future cases. This article will analyse the rulings the ICD pre-trial judge has issued so far and the implications for victim participation in the remaining proceedings.

In the pre-trial hearing held from September 21 – 23, the defense made preliminary objections against the competence of the pre-trial judge to hear the case and the legality of the pre-trial hearing. The pre-trial judge rejected victims’ counsels’ request to make oral submissions on these points in response. In her view, the issues had been raised by the defense and, therefore, victims’ counsels’ views were considered irrelevant.

The pre-trial judge’s reasoning for rejecting victims’ counsels’ request is unsatisfactory.  According to Rule 35(1) of the Rules of Procedure, all organs of the ICD must take into account the best interest, rights, and needs of victims when making decisions. When interventions are denied, it is therefore necessary to analyse whether or not the issue at stake affects victims’ interests, rights, and needs. The mere fact that an issue was raised by the defense should not be sufficient grounds to deny interventions by victims’ counsels. In this particular instance, a ruling issued in accordance with Rule 35(1) might not have led to a different outcome. However, it would have been an important reference for future interventions. It would have also addressed a gap in the Rules of Procedure, which are quite vague about when victim counsels can intervene.

The pre-trial judge in the hearing on September 23 also ruled on a number of points regarding victim participation. Firstly, she decided that the mode of victim participation at trial stage should follow the ICC model, which means that the trial chamber can allow interventions from victims’ counsels at different stages of the trial. It would not limit interventions to the sentencing stage, as practiced in ordinary courts in Uganda.

This ruling is a welcome move towards streamlining victims’ rights at the ICD with those granted by the ICC. Given the similar jurisdiction and parallel prosecution of members of the same rebel group, victims at the ICD should have the same rights as those participating at the ICC. However, it is noteworthy that decisions concerning victim participation can vary between different trial chambers at the ICC. A thorough analysis of past ICC decisions on victim participation should therefore form part of the ICD trial chamber’s assessment of when to allow interventions by victims’ counsels. The ICD’s decision also demonstrates that more consistent rulings by the ICC trial chambers would be important to guide decisions in local international crimes procedures such as in Uganda.

Secondly, the pre-trial judge ruled on the application process for victims and ordered that victims apply formally to the ICD Registry. After having received the victim applications, the Registry is tasked with determining the victim status of each individual applicant. This ruling is important to ensure clarity for all parties concerned as to who will participate in the proceedings and eventually be entitled to reparations. However, it is doubtful whether the Registry currently has the structures and resources to process victim applications, especially if they are filed in large numbers. For example, the ICD Registry to date has not been able to conduct community outreach due to lack of resources. The ICD as an institution thus needs to ensure that the Registry has the capacities to manage this process.

With regard to the determination of victim status, Rule 6(2) of the Rule of Procedure requires the pre-trial judge to consider the status of victims. The order that the Registry is to accept or reject the applications does not necessarily contradict this stipulation because Rule 6(2) only requires a consideration rather than a determination. However, to respect Rule 6(2), the pre-trial judge should pronounce the decisions on the applications during the hearing. For victims, this can serve as an important form of recognition.

Thirdly, there is need for the pre-trial judge to identify the evidentiary threshold that victims have to meet to prove their victim status. This is not regulated in the Rules of Procedure. However, to make the process accessible for victims, they should not be required to prove their victim status beyond reasonable doubt. For example, Pre-Trial Chamber II at the ICC ruled in a decision dated March 9, 2012 regarding the situation in Uganda that for proof of identity a “statement signed by two witnesses attesting to the identity of the victim applicant” can replace an official identification document.

Fourthly, the pre-trial judge ruled that victims’ counsels have the right to produce evidence in addition to the defense and the prosecution. There is need for more clarity on what this ruling entails and to what stages of the proceedings the right to produce evidence applies. According to the Rules of Procedure and the Sentencing Guidelines, at sentencing stage, victims can produce evidence on the harm suffered as a result of the crimes the defendant is accused of. There is no provision, however, on whether this right applies during evidentiary hearings.  It is unclear whether the pre-trial judge’s ruling was intended to respond to this lacuna and allows victims’ counsels to introduce evidence before sentencing. During the last pre-trial hearing the defence lawyers rightly noted that “it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers.”  Therefore, if victims are allowed to produce evidence during evidentiary hearings, it would be necessary to clearly determine for which purposes such evidence can be introduced in order to avoid a potential perception that victims’ counsels are acting as a second prosecutor.

Finally, the prosecution was ordered to disclose the evidence of the case to the victims’ counsels. This is a welcome interpretation of Rule 21, which only requires disclosure to defense. Access to the case file will enable victims’ counsels to identify evidence that might pose a risk to victims when disclosed and to request protective measures, such as redaction, where necessary.

The Kwoyelo trial is in many ways the first of its kind in Uganda. The pre-trial judge’s decision to allow victim participation in line with the rights of victims before the ICC set an important precedent. It is now important that future decisions provide further content and clarity as to the extent of victims’ right to participation, thereby establishing a framework for participation in future ICD proceedings.

Monday, 10 October 2016

Why the ICC Should Reconsider its Decision on In Situ Proceedings in Uganda

On December 6, 2016, the International Criminal Court (ICC) will start the trial of Dominic Ongwen, a former commander of Lord’s Resistance Army (LRA), who is charged with committing war crimes and crimes against humanity in northern Uganda. One topic that has repeatedly generated discussion in the case of Ongwen is the possibility of the ICC holding in situ hearings in Uganda.

At a status conference held on May 23, 2016 in The Hague, the prosecution, the defense, and the victims’ representatives agreed that the trial chamber should consider holding in situ proceedings. The parties suggested holding the opening of the trial in Uganda, and preferably in Gulu. In addition, the prosecution and one of the victims’ representatives suggested that the trial chamber conducts a judicial site visit of the four locations (Pajule, Odek, Lukodi and Abok) where Ongwen allegedly committed the crimes with which he is accused.

On July 18, 2016, Trial Chamber IX of the ICC rejected these requests, citing among other reasons, security concerns and logistical difficulties involved in moving the trial to Uganda. The trial chamber also said that a decision on a judicial site visit to northern Uganda could best be made “at a later stage of the proceedings, after having heard, at least in part, the evidence to be presented at trial.”

Nevertheless, the court in its ruling acknowledged that holding the proceedings in northern Uganda would bring justice closer to the affected communities and also noted that its decision had been made “without prejudice to re-considering the matter at a later time.”

This is the second time that the court has rejected a request for in situ hearings in Ongwen’s case. In September 2015, Pre-Trial Chamber II recommended that Ongwen’s confirmation of charges hearing be held in Uganda, but this request was denied because the Ugandan Government expressed security concerns in the run up to presidential and parliamentary elections, which were about to begin.

Based on discussions with community members and representatives of civil society organizations working in Gulu, this article reflects on why the ICC should reconsider its decision to not hold hearings in Uganda.

Among other reasons, many people still strongly feel that that the trial should be held in Uganda. As one victim said, “a court process that takes place far away will not make us happy. We shall not know exactly what happened. It should take place nearby so that victims who suffered can follow it and, if possible, attend.”

The above comment indicates that some victims may not objectively interpret the ICC’s decisions in terms of the costs and security required. They will view it as a denial of participation in the process of justice. In the words of one community member: “In order for us to accept that the court case against Ongwen is the truth, it should be held in Uganda.”

Others, however, hold contrary views. Rosalba Oywa, a civil society practitioner living in Gulu said, “Looking at Uganda today, you can never know what will happen if the trial is held here. Ongwen stands a fair chance of getting justice in The Hague. You can never predict the level of intimidation that might be made against witnesses. After all the trial will be broadcast live, and in either case it is still the same judges who will try him. It will only be a change of venue but not a change of procedure.”

Another community member said, “It is not bad if he is tried outside. In Uganda there is corruption. If he is brought here the victims’ lawyers can even be bribed.”

These concerns are serious and reflect some of the reasoning of the trial chamber against in situ proceedings.  However, the argument in favor of an in situ hearing is reinforced by the fact that many victims live in a context where traditional and cultural mechanisms of justice are still very much a part of their daily lives. In line with traditional justice mechanisms of the Acholi, disputes are settled in open meetings presided over by local leaders and elders, and everyone has the right to attend and follow proceedings. Even if part of Ongwen’s trial was to be conducted in northern Uganda, many victims would be able to physically attend, a factor which will appeal to their local understanding of justice.

As one community member said, “Ongwen should be brought to Uganda so that victims see and hear the proceedings by themselves.”

Jackson Odong, who works with the Refugee Law Project in Uganda said, “I think it would be of benefit, especially in an African setting where people believe by seeing and touching. It would reinforce the confidence and belief in the court and enable people to participate. There will be more participation if the trial is held in Uganda compared to if it is held in The Hague.”

There is also evidence showing that a physical presence by the ICC in the field increases the local population’s willingness to engage with the court. One example is the numerous outreach visits that have been conducted by the ICC field office in Uganda, which have not only increased awareness about the ICC, but also motivated thousands of victims to register to participate in the case of Ongwen.

Another example can be drawn from past field visits by prominent ICC representatives to northern Uganda that were helpful in shaping a positive perception of the ICC in the region. In May 2010, the then ICC President, Judge Sang-Hyun Song, visited northern Uganda. Among other events, he attended a town hall meeting that was attended by approximately 350 people, which was a record for an ICC outreach meeting in Gulu.

In 2010, the public had a very negative attitude toward the ICC, so when community members were given an opportunity to ask questions, some people spoke harshly against the court. However, those who attended the meeting, including myself, watched admiringly as the president calmly answered the questions and justified the intervention of the ICC in northern Uganda. During the same visit, Judge Song held another community meeting that was attended by a record 670 people from Lukodi and surrounding villages.

More recently, in February 2015, ICC Prosecutor Fatou Bensouda visited northern Uganda. Like the ICC president before her, she attended a number of meetings with different sections of the population, including religious and traditional leaders, locally elected representatives, and members of civil society organizations. At these meetings she explained the position of the ICC and answered hundreds of questions.  Bensouda went a step further by visiting several communities that had been affected by the conflict, including Lukodi. Her visit had a big impact upon many community members who attended, an event that many still recall fondly. As a local leader in Lukodi said, “I was very happy with her visit. It made me believe that she had come in her capacity as the ICC prosecutor to verify for herself what had happened in Lukodi. It made me believe that the truth would come out.”

In conclusion, the above comments indicate that many people hold the view that an in situ hearing in northern Uganda would not only bring justice closer to the people, but also increase the popularity of the ICC among the population. The ICC in northern Uganda is viewed in a more favorable light today by many people compared to when it first intervened in the Ugandan situation in 2004. This is demonstrated, inter-alia, by the huge interest victims have shown for participation in Ongwen’s trial. If a few visits by prominent ICC officials could have such a big impact, imagine what an in situ hearing could do for the ICC.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. The opinions expressed above do not necessarily reflect the views of Open Society Justice Initiative.

Landmark Ruling on Victim Participation in the Case of Thomas Kwoyelo

Colonel Thomas Kwoyelo is a former LRA commander who is currently facing charges of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court in Uganda. Kwoyelo has been in detention since he was captured by the Ugandan Army in 2008. Kwoyelo first appeared before the ICD in 2011, but the start of his trial was delayed as a result of preliminary objections raised by the defense lawyers that he was entitled to amnesty.  Two pre-trial hearings were held in April and August 2016 respectively, in preparation for the main trial, which is scheduled to start later this year.

From September 21 to 23, 2016, the International Crimes Division (ICD) sitting at the High Court in Gulu held a third pre-trial hearing. Among other factors, this hearing was necessitated by the fact that the ICD in June 2016 had developed and approved new rules of procedure (ICD Rules 2016), which called for the holding of a pre-trial conference, and also by the fact that Kwoyelo’s privately appointed lawyers were not present at the previous hearing.

One of the key decisions that emerged out of this hearing was a landmark ruling on victim participation, where the court decided that victims would be allowed to participate in proceedings through their legal representatives. The court, however, ruled that the nature and extent of their participation would be determined at a later date by the trial chamber. This is the first ruling of this nature in Uganda and sets a precedent in Ugandan jurisprudence.

Prior to the above ruling, the court grappled with the question of whether or not the presiding judge, Honorable Justice Susan Okalany, was legally mandated to preside over proceedings before the ICD. According to Rule 6 of the ICD Rules 2016, “The head of the Division [ICD] shall designate a Judge of the Division to preside over the pre-trial proceedings.” In the opinion of the defense, while Justice Okalany is a judge of the High Court, she was not specifically appointed to the ICD, and therefore Rule 6 barred her from presiding over any proceedings of the ICD.

The second objection raised by the defense was in regard to the legality of the current pre-trial hearing. The defense argued that in the pre-trial hearing held on April 4, 2016, the ICD Rules had not yet been developed and approved by the court, and therefore following the approval of these rules, there was need for a court order instructing the ICD proceed de novo. They argued that the absence of a court order in this regard made any pre-trial hearing held after April 4, 2016 illegal.

The defense was overruled in both instances raised above, with the court noting that Article 139 of the Ugandan constitution mandated the High Court to handle all matters civil or criminal. The court also noted that ICD judges were not specifically designated to serve only within the ICD but that there was an established practice within the High Court where judges were assigned to carry out assignments in other court circuits without segregation. She also noted that there were no special qualifications for ICD judges that distinguished them from other judges of the High Court in Uganda. The court also ruled that the adoption of the ICD Rules after April 2016 had no impact on the current proceedings.

Following the above ruling, the defense said they were not satisfied and requested a stay of proceedings to enable them to appeal the court’s decision in a higher court. This request was also denied. The court noted that judges of the High Court were not permanently assigned to the ICD and that within the ICD legal framework any judge of the High Court could handle a pre-trial hearing and issues required for settlement before commencement of the main trial. The court also noted that appeals were a matter of statute, which meant that appealing against interlocutory rulings was not permissible and that for decisions to be appealed against, they had to be final. In the words of the presiding judge, “appealing against every decision of the court during trials would make it impossible to finish trials, undermine procedure, and open the court to an abuse of the process.” The court therefore ordered for proceedings to resume.

On the second day of the hearing, the defense raised more preliminary objections. The first objection was in regard to the status of the victims’ lawyers present in the court. The defense noted that “the victims’ counsels appeared to represent an unknown set of victims because under international law victims would ordinarily have applied for participation in the case, and thereafter the court would determine if they could participate or not, and if they were entitled to reparations.” The defense argued that at the moment it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers. The defense requested the court to come up with guidelines regarding the participation of victims and the role of the victims’ counsel, which they believed was unclear. The prosecution, for their part, stated that they had no objection to the participation of the victims’ lawyers in the trial.

The victims’ lawyers responded to the defense’s objections by informing the court that they had a list of victims that they intended to submit for participation. The victims’ lawyers further argued that victims needed to participate at all stages of the trial. As one victims’ lawyer noted: “If victims do not participate during the process and come at the end, then what would be the purpose of their participation?”

The second preliminary objection was in regard to the accused’s failure to understand the charges against him because all documents being used were in English, and Kwoyelo only understands Acholi. The defense requested that the indictments, the summary of the case, and all written statements against the accused be translated into the Acholi language. As noted by one of the defense lawyers, “It is not the defense lawyers who are on trial but rather the accused. Every statement therefore needs to be translated.”

In reply, the prosecution argued that informing the accused of the indictments against him did not necessarily call for the translation of all the documents into writing and that oral submission was in itself adequate. The prosecution also argued that interpretation of all documents would cause an unnecessary delay and would require a lot of resources. As an alternative, the prosecution suggested that an interpreter be assigned to Kwoyelo.

The third preliminary objection raised by the defense was in regard to the disclosure of evidence by the prosecution. The defense noted that disclosure had not been made in conformity with the law because much of the evidence had been redacted without authorization of the court. The defense also contended that some evidence had not yet been disclosed to them. In response to this, the prosecution promised to disclose all evidence and to apply to the court for redaction and non-disclosure where necessary.

Finally, the defense requested that the court facilitates Kwoyelo’s lawyers with resources to prepare for the trial. They specifically requested financial support, researchers, vehicles, computers, and other facilities that would enable them to prepare for the trial. In reply to this request, the prosecution noted that while the accused was entitled to assistance to enable him to prepare for his trial, any assistance offered had to be within the means of the State.

After listening to arguments from the defense, the prosecution, and the victims’ lawyers, the court made the decisions below.

On victim participation, the court found that there was a consensus in all submissions that victims should participate in proceedings. The court therefore ruled that victims would be allowed to participate in a manner similar to provisions of the International Criminal Court (ICC) Rules of Procedure and Evidence. The court directed that victims apply formally to the ICD Registrar for participation and that each application was to be made individually and considered on its own merit. The court ordered the Registrar to compile a list of all victims for purposes of formal recognition. The court also ruled that the victims’ lawyers would be at liberty to provide evidence to the prosecution and the defense. The court finally ruled that the extent of participation of victims at different stages of the trial would be subject to determination by the trial chamber.

In regard to the defense request for translation of all documents into Acholi and for facilitation with resources, the court ordered that the ICD Registrar provide the defense team with research funds and transport to help Kwoyelo in preparing for his defense. The court also ordered the appointment of an Acholi interpreter to be paid by the ICD Registry throughout the trial. In addition, the court ordered that the summary of the case and indictments be translated into Acholi to enable Kwoyelo to understand the charges against him.

On the disclosure of evidence, the court ruled that the prosecution had not acted in accordance with the law in redacting or withholding evidence without prior permission. The court therefore ordered the prosecution to disclose evidence to the court within 15 days in accordance with Rule 21(4) of the ICD Rules 2016. The court also ruled that the prosecution makes disclosure of unrestricted evidence to the defense and the victims’ counsels within 15 days. The court also directed that the prosecution applies to the court in the event that they wished to redact or withhold evidence.

The next pre-trial hearing is scheduled to take place on October 31, 2016.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in Northern Uganda.

Friday, 19 August 2016

New Lawyers Appointed as Kwoyelo Pre-Trial is Adjourned to September in Ugandan Court

On Monday 15 August 2016, the long awaited trial of Colonel Thomas Kwoyelo finally kicked off with a pre-trial hearing presided over by Hon. Justice Susan Okalany, a judge of the High Court of Uganda. The hearing however had to be adjourned because the defense attorneys representing Kwoyelo did not turn up. At the same hearing, the court also appointed two new lawyers on state brief 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

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 a tent erected outside the court buildings. Both these overflow facilities were equipped with television screens and sound speakers so that the public outside the courtroom could easily follow proceedings.

The decision to hold the pre-trial hearing in Gulu was taken in a bid to bring the trial closer to the people and consequently promote victim participation. The ICD registry must be applauded for having taken this decision, because it enabled many people living in the conflict-affected communities to attend. 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 turned overruled requests for insitu hearings in northern Uganda. 

Kwoyelo’s Defense Lawyers fail to turn up

At around 9:00am the victims’ lawyers, Henry Komakech Kilama and Jane Magdalene Amooti had arrived. 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. But the defense lawyers were not present.
Kwoyelo was being represented by Caleb Alaka and Francis Onyango who had been his lawyers since 2008. Nicholas Opiyo, a prominent human rights activist and lawyer in Uganda had also joined Kwoyelo’s defense team and was scheduled to appear at the pre-trial hearing.

So when the court finally commenced at about 11:00am, the first issue tackled by the judge was to try and establish the whereabouts of the defense attorneys. After a brief examination conducted by the judge, it turned out that Kwoyelo himself did not know why his lawyers had not turned up in court. The judge therefore ruled that Kwoyelo had until 9:00am the following day to ensure that his lawyers turned up, or else the court would appoint two new lawyers on state brief. Proceedings were then adjourned at 11:30am.

Kwoyelo’s lawyers claim that they did not turn up for the hearing because they were not notified in time in accordance with the rules of procedure of the ICD. Caleb Alaka, the lead counsel, claimed he thought the hearing was to have been held at the Kampala High Court. Nicholas Opiyo, one of Kwoyelo’s other lawyers slammed 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, Mr. 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 turn up 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 then adequate notice and to involve them in community outreaches, then the trial is bound not to be fair. It points to a need for cooperation by all parties to ensure that the trial proceeds smoothly.

New Defense Lawyers are Appointed

On Tuesday the hearing resumed, and just like the previous day, the courtroom and the overflow facilities were again filled up to capacity by 9:00am. The victims’ lawyers turned up shortly after 9:00am just like they had done the previous day. Shortly after, a lawyer called Charles Dalton Opwonya arrived, claiming he would represent Kwoyelo.

But this time the court could not start immediately because the prosecution was nowhere to be seen. Unconfirmed rumors circulated round the courtroom that they were holed up somewhere in Gulu Town amending the charge sheet. The audience waited patiently until 11:00am when they finally arrived. But it was not until 11:45 that Kwoyelo was led into the dock and the court was then ready to proceed.

When court finally commenced at 11:45, it was apparent that the first matter the court would have to deal with was the absence of the defense lawyers. Mr. Charles Dalton Opwonya introduced himself as the new lawyer defense lawyer. He said he had been contacted by the accused, but requested that the court meets the legal costs. This surprised the judge who said it was the responsibility of the court to appoint lawyers on state brief. She introduced another lawyer present in court called Godfrey Anyuru whom the court intended to appoint. However after asking Kwoyelo if he had been in touch with Mr. Opwonya, the court said they would not object to Kwoyelo’s choice of attorney. The judge actually praised Kwoyelo for having taken steps to get look for new lawyer.

The court therefore appointed Mr. Charles Dalton Opwonya and Godfrey Borris Anyuru as Kwoyelo’s new lawyers on state brief. The judge however ruled that Kwoyelo’s lawyers on private brief were free to rejoin the proceedings at any point in time during the trial.
The decision by the court to ensure Kwoyelo has good legal representation is a step in the right direction can complies with international standards for fair trials. What remains to be seen is if the new lawyers will live up to the expectations people have in them, and avoid any further delays caused by the absence of lawyers.

The Prosecution Introduces a new count on Sexual and Gender Based Violence

With the matter of legal representation out of the way, the judge then asked the prosecution to proceed. Mr. Charles Kaamuli, the lead prosecutor informed the court that they 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 also 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 on remand for close to eight years so there was need to specify the timeframe under which the new amendments would be brought. The judge then ruled that the new amendments would be accepted but asked the victims’ counsels to work together 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. This is because it is common knowledge that SGBV crimes were committed in northern as a result of many girls being abducted, forced to become wives, and to bear children to rebel commanders. The absence of SGBV crimes in cases involving war crimes and crimes against humanity, for example in the case involving Germain Katanga in the DRC, have always caused outrage among human rights activists. The prosecution has therefore taken a step in the right direction, although they still remain with the burden of proving it.

Adjournment to 21 September 2016

After the prosecution had made their submission, the judge asked the defense team if they were ready to proceed. Mr. Opwonya responded that they were not ready to proceed because the prosecution had not made full disclosure of the evidence. He requested that disclosure be made along with exhibits. The prosecution responded by agreeing 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 attorneys had just been appointed, the court would grant an adjournment to enable the defense to prepare adequately for the pre-trial. After a short discussion with the defense and prosecution about an appropriate date, the judge ruled that the proceedings would be adjourned to 21 September 2016 and urged both parties to prepare adequately. She also ordered the registrar to serve all parties with a two weeks’ notice of the hearing.

The adjournment of Kwoyelo’s to September again raises serious questions about the ICD’s readiness to conduct the trial expeditiously. Kwoyelo has already been on remand for close to eight years, and the delays are an infringement on his right to a speedy and fair trial. It is also an infringement on the right of victims to justice. It is therefore necessary that no more delays are caused come September 21st 2016.