Tuesday, 28 March 2017

Kwoyelo’s Trial Drags On in Ugandan Court as Defense Counsel Labels the Charges ‘Fatally and Incurably Defective’

Colonel Thomas Kwoyelo, a former commander in the Lord’s Resistance Army (LRA), 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.

The start of Kwoyelo’s trial, however, does not appear imminent. Delays have characterized his case since 2008, the latest being an intense debate on whether or not the ICD has jurisdiction to try Kwoyelo using international criminal law for crimes committed in a domestic setting.

Kwoyelo first appeared before the ICD in 2011, but the start of his trial was delayed as a result of preliminary objections raised by his defense lawyers who argued that he was entitled to amnesty under a law in Uganda that was valid at the time of his capture. This matter was not settled until 2015, when Uganda’s Supreme Court ruled that Kwoyelo’s trial was constitutional. Thereafter, three pre-trial hearings were held in April, August, and September last year.

In 2017, three additional pre-trial hearings have been held in January, February, and March, respectively.  While these latest pre-trial hearings were meant to pave way for the commencement of the trial this year, they have instead created legal challenges that have further delayed the start. Most recently, Kwoyelo’s defense counsel labelled the charges as “fatally and incurably defective.” The defense argues that the conflict in Uganda was largely domestic, and the prosecution cannot therefore charge Kwoyelo under international criminal law.

Other factors that have caused a delay in the trial include: objections by the defense that Kwoyelo is not medically fit to stand trial; a delay in translation of the charge sheet and other documents into the Acholi language; and a disagreement between the defense and the prosecution over redaction and delayed disclosure of evidence. Below is a summary of the three pre-trial hearings that have been held in 2017 and the key issues that came up.

January 31 – February 1, 2017
At this pre-trial hearing, proceedings were halted based on five objections raised by Kwoyelo’s defense team. These were:

Their client, Kwoyelo, was sick and had not been given access to medical treatment;
An amended indictment by the prosecution had been served upon the defense late on Monday, January 30;
The said indictment had not been translated into Acholi, Kwoyelo’s native language, as directed by the court at the September 2016 hearing;
Security had not been provided for the defense team as directed by the court in September 2016; and
The prosecution’s amended indictment, which contained redacted and non-disclosed evidence, had been filed in non-conformity with the ICD Rules of Procedure and Evidence.
Defense counsel Caleb Alaka specifically noted that the prosecution had not complied with Rule 2(2) and (3) of the ICD Rules of Procedure and Evidence. These particular rules specify procedures that should be followed when one party wishes to redact or not disclose evidence to the other party.

In response to the above, the court ruled in favor of the defense by asking the prosecution to file a new, formal application for redaction and non-disclosure within seven days and to have it served served to all parties. The court also ordered that the indictment and other documents be translated into the Acholi language and that security be provided to the defense lawyers. (The lawyers’ request for security was based on their fear that they were handling a sensitive case that could put them at risk.) The prisons department was also ordered to allow Kwoyelo to access medical treatment. Proceedings were then adjourned to February 22.

February 22 – 23, 2017
At the second pre-trial hearing this year, the question on disclosure and redaction of evidence and whether or not to amend the charges dominated the discussion.

The prosecution requested that the court grant delayed disclosure of evidence, particularly regarding the identities of victims and witnesses and their statements. They also requested the court to allow them to produce some witnesses later during the course of the trial. The prosecution said that they sought to redact names, ages, sex, addresses, and signatures of victims and witnesses. The defense objected, noting that the witness statements that the prosecution sought to redact had already been disclosed in 2010 and in 2016. The defense noted that the application for redaction was speculative, based on conjecture and thus baseless.

In its ruling, the court granted the prosecution’s request for delayed disclosure and redaction based mainly on the fact that victims and witnesses deserved to be protected from any harm that could arise out of their participation in the trial.

The prosecution also sought permission from the court to amend the charges against Kwoyelo. The prosecution submitted that they were substituting and adding new counts under Common Article 3 of the Geneva Conventions and Uganda’s Penal Code Act to have Kwoyelo charged under local laws of Uganda and to have the conflict characterized as one that is not of an international nature. The prosecution noted that they intended to bring 93 counts, 59 of which fell under customary international law. (This is an increase from the original indictment, which contained 53 charges.)

The defense objected to this request noting that the charges were highly defective and brought under the wrong laws because the original charges referred to a conflict of an international nature, yet the victims were all Ugandan.

The court agreed that the original charges stated that the alleged crimes occurred in the context of an international, not domestic, armed conflict. The court, however, noted that this notwithstanding, the concise statement of the facts clearly described offenses committed only within the borders of Uganda.

In its ruling, the court granted the prosecution’s request for alteration of the indictment and adjourned proceedings to March 14.

March 14 – 16, 2017
From March 14 to 16, another pre-trial hearing was convened with the major objective of reading and confirming the charges against Kwoyelo based on the amended indictment by the prosecution. The new indictment contained 93 counts, 59 of which were appearing under customary international law and the others under the Penal Code Act of Uganda’s Constitution and the Geneva Conventions.

After reading of the charges, Kwoyelo’s defense lawyers raised an objection in regard to the application of customary international law in the Uganda legal jurisprudence.

The defense noted that the charges raised “extremely serious” and “grave concerns,” not only in the manner in which they were presented, but also in the substance contained in the indictment. In the words of Alaka, Kwoyelo’s defense lawyer, the indictment “created double jeopardy, was unconstitutional, and thus defective and illegal basing on technical and legal grounds.”

In explaining the comments above, the defense said that the charges brought against Kwoyelo under customary international law were inconsistent with and/or in contravention of the Uganda’s constitution. The defense noted that under Uganda’s constitution, the principle of legality requires that an offense be defined by law and a penalty prescribed for it accordingly. The defense argued that those crimes under customary international law, and in particular inhumane acts such as enslavement, rape, murder, or torture were not clearly defined in Uganda’s constitution.

In reply to objections raised by the defense, the prosecution sought an adjournment to give them time to prepare an appropriate response. The presiding judge then adjourned proceedings to the following day, Wednesday, March 15. However, when proceedings resumed, the prosecution was not prepared, so another adjournment had to be made.

On Thursday, March 16, the prosecution again sought an adjournment, saying they needed a longer period of time to prepare their response. They based their request for more time on the basis that international criminal law was a new field in Ugandan jurisprudence, mainly brought about by the creation of the ICD and the case of Thomas Kwoyelo.

“International Criminal Law is a new and challenging area with a lot of authority and concepts needed, so we find the time provided insufficient for us to do the work. We hope our request for more time does not go against the interest of justice owing to the fact that it is a new area of jurisprudence,” said Charles Kaamuli the lead prosecutor.

With no objections from the defense, the court adjourned proceedings to May 9.

With Kwoyelo having been in detention for close to nine years now, a further adjournment of his case has created more uncertainty about the start of the trial. It remains to be seen whether the main phase of the trial will be handled expeditiously when, or if, it begins.

Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda since 2006. He is also the 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.

Wednesday, 1 March 2017

Why Community Members in Barlonyo ‘Feel Left Out’ of the Ongwen Trial

Located 26 kilometers north of Lira town is the tranquil village of Barlonyo. It is a quiet trading center that lies inconspicuously next to the River Moroto, in Lira district, in the Lango sub-region of Uganda. Behind its quiet and tranquil facade, Barlonyo harbors a dark past brought about by a massacre perpetrated by rebels of the Lord’s Resistance Army (LRA) in February 2004. For this reason, Barlonyo is also home to a monument bearing the remains of 121 LRA victims.

Late in the afternoon on February 21, 2004, LRA rebels, allegedly under the leadership of Okot Odhiambo, attacked the Barlonyo internally displaced persons’ (IDP) camp, subdued the small contingent of Ugandan government soldiers based there, and engaged in a burning and pillaging spree that left hundreds of civilians dead.  According to the Justice and Reconciliation Project’s 2009 report on the Barlonyo massacre, camp residents were burned alive inside their homes, hacked, stabbed, clubbed and shot. The bellies of pregnant women were slit open, with their babies thrown into the fires. Those who were not killed were abducted and marched north into Acholi land where many died in captivity. LRA Commander Okot Odhiambo allegedly ordered his soldiers to “kill every living thing.” In the space of less than three hours, over 300 people were brutally murdered and an unknown number were abducted.

While official narratives indicate that Odhiambo led the attack, residents of Barlonyo strongly claim that Ongwen was also present. Ongwen is currently on trial before the International Criminal Court (ICC), charged with 70 counts of war crimes, and crimes against humanity, allegedly committed in the four former IDP camps of Lukodi, Odek, Pajule, and Abok. Barlonyo does not feature anywhere in his indictment, a factor that has not gone down well with many community members living there. In interactions with community members of Barlonyo in May 2016, and a follow-up visit in February 2017, the following perspectives emerged on why they feel left out Ongwen’s trial.

The residents of Barlonyo felt that Ongwen played a key role in the 2004 attack on their village. A community member who was present during the Barlonyo massacre remarked, “We saw him [Ongwen] during the attack on Barlonyo. LRA soldiers came shouting his name when they attacked us, so it is not clear why Barlonyo wasn’t included among the communities where he operated.” Another individual who was also present during the massacre noted: “I saw Ongwen three times. I saw him physically.”

One community member provided a brief narrative of the massacre saying, “The LRA camped in a nearby village. They came in two groups and surrounded the camp and started shooting on the soldiers, who were very few. The soldiers were overpowered and ran away. His [Ongwen’s] name was being mentioned time and time again when people were torching houses. They were shouting his name and shouting that every living thing will be finished. They were blowing whistles and making a lot of noise. Some were abducted that day and [upon returning] confirmed that they saw Dominic Ongwen and Okot Odhiambo.”

Despite the above claims, Barlonyo does not feature in the list of incidents that Ongwen is currently charged with. Furthermore, it is also a known fact that Barlonyo was one of the key investigative locations for the ICC’s Office of the Prosecutor (OTP) in the early days of the investigation in northern Uganda. According to those interviewed and public records, it had in the past been targeted by ICC investigations.

Community members could therefore not understand why, despite this evident local knowledge, Barlonyo had been excluded from the incident selection of the ICC’s Office of the Prosecutor (OTP).  As one male participant noted, “Barlonyo’s name is not mentioned [in the ICC indictment]. The evidence is clear, so why is Barlonyo not included? The ICC comes here every time asking for information from victims, but Barlonyo is still excluded. Even Bensouda [Fatou Bensouda, Prosecutor of the ICC] was here but nothing has been done.”

Maria Mabinty Kamara, the ICC field outreach coordinator for Kenya and Uganda, explained the OTP’s position as follows: “[W]hen they [OTP] were bringing charges against Dominic Ongwen it was guided and constrained by the evidence in its possession… During the OTP outreach in Barlonyo in 2015 and 2016, the OTP explained that they had no evidence of Ongwen’s presence in Barlonyo and there was an appeal for anyone who could provide such evidence to do so. The OTP field investigators interacted with many villagers thereafter and still came up with nothing.”

In addition, the community members also claimed that despite having had several interactions with the ICC field outreach teams they had never received an explanation as to why Barlonyo was not included in Ongwen’s indictment. As declared by one community leader we spoke to: “All of us have met the ICC. They came several times starting from the beginning of the case [against the LRA in northern Uganda].” However, with Ongwen not being charged with any crimes that occurred in the village, it appeared that the appreciation for these interactions may have dwindled. Echoing what seemed to be a shared opinion, the same elder said that “the ICC should not come back here to do screenings and outreach again, if Barlonyo is not included.”

The ICC did confirm that several outreach events and meetings have taken place in Barlonyo before Ongwen’s transfer to the court and after but refutes the claim that no explanation was provided as to why the village was not included in the indictment. “The Prosecutor visited Barlonyo after the surrender of Ongwen and held a community outreach meeting with them. The Prosecutor explained the scope of the case and why it was limited to Lukodi at the time,” said Kamara.

Another concern that emerged from my Barlonyo consultations was that Ongwen is represented by a lawyer originally from Lango sub-region where Barlonyo is located.  One community member said, “We have seen lawyers defending Ongwen, but the truth is that he committed terrible atrocities. Despite that we only see him defended. Krispus Ayena Odongo [one of Ongwen’s lawyers] is a man from Lango. We are not happy he is defending him. Krispus Ayena is defending Ongwen, even though he knows Ongwen committed atrocities even against his own people. He only wants money.” Under international law and the rules of the ICC, Ongwen has a right to counsel. Community members however did not view it in this way and associated the involvement of Odongo with financial gain.

It is not surprising, therefore, that when asked to explain what specific expectations they may have of the Ongwen trial, the Barlonyo community focused on their fears: the fear of not being recognized as a place of atrocity and suffering, the fear of being excluded from any possible reparation scheme as well as the fear that justice would never be realized for the victims of the Barlonyo massacre. One member had a different take, suggesting that the Ugandan government should be held accountable for the Barlonyo massacre. He said, “If Dominic Ongwen wins the case, the government of Uganda will stand to answer because they had the responsibility to protect their citizens. We will take the government to court.”

However, the community members reluctantly conceded the fact that Ongwen is being tried also for thematic crimes, i.e. crimes not related to specific incidents but rather to specific types of conduct, such as the LRA practice of committing sexual and gender-based violence and of using of child soldiers, is a positive development that they hope will also cover Barlonyo.

Overall, despite Barlonyo’s exclusion from the charges against Ongwen, the community members in Barlonyo confirmed their belief in his overall responsibility and in the value of his trial. At the same time, they stated their clear disappointment at not being included in the trial process and expressed a request to be “told” who had committed atrocities in their village, if not Ongwen.

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.