Wednesday 26 September 2018

Kwoyelo Trial Adjourned due to Translation Challenges


On September 24th, 2018, the trial of Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) began before the International Crimes Division (ICD) sitting at the High Court in Gulu, northern Uganda. Unfortunately, it came to a standstill a day after due to inaccurate translation of the Indictments as alleged by the defense counsel. The trial opened amidst ongoing uncertainty about how long the trial will take. However, the judges gave an estimate of three years as the likely duration for the trial. Questions on reparations for victims at the conclusion of the trial remain unanswered.
Kwoyelo is facing 93 charges of war crimes and crimes against humanity resulting from his alleged role as a top LRA commander during the war in northern Uganda, specifically in Pabbo. He has been in detention since the Ugandan army captured him in 2008.Thomas Kwoyelo’s case has dragged on for a long time majorly because of budgetary challenges. He first appeared before the ICD in 2011 but his trial was delayed due to preliminary objection raised by his defense lawyers. The Objections was regarding his eligibility for amnesty which was valid at the time before the Supreme Court ruled in 2015 that he was not eligible for amnesty. The ICD failed to confirm charges against him despite several Pre-trial hearings held in 2016 and 2017 until August 30, 2018, when 93 charges were finally confirmed paving way for the main trial to start on September 24, 2018.
Speaking before a packed audience prior to the commencement of trial proceedings on Monday September 24 in Gulu, Justices Jane Kigundu, Duncan Gaswagga, and Michael Elubu—the three judges who will preside over the trial stressed the need for a speedy and expeditious trial, as they promised to uphold the rights of victims to participate in the process.
Since Thomas Kwoyelo is the first person to be tried by the ICD under Ugandas criminal law jurisprudence, the ICD has had to create new rules of procedure to allow victim participation and other requirements that arise out of Uganda’s international law commitments. Meanwhile CSOs and the public continue to raise concerns with respect to the court’s preparedness towards victim participation, witness protection and how long the trial will take overall,
 In respect to the duration of the trial, Justice Gaswagga said that “We shall try to ensure that within three years we have completed”. “We are estimating that prosecution can take two years and the defense 1 year,” he added.
On victim participation, Justice Elubu told stakeholders that the court will largely borrow from procedures used in international law which allows the participation of victims although only a few victims may be called upon to inform court. “We shall not leave out the victims,” said Justice Elubu.
As regards witness protection the judges stated that it is a new aspect within Uganda’s law which has only been considered in a few cases. The Judges nevertheless agreed that it is an important aspect and the court will devise measures some of which are already in place.
In response to translation, an aspect that has halted the trial because the Indictment was inaccurately translated, justice Gaswaga said “Whoever comes to the court should understand what is said. The accused should understand, and all people should participate,”. Citing Article 23 of the Uganda’s Constitution which requires interpretation for the accused on trial, the judges found it necessary to adjourn the trial until November 5th 2018 and that a properly translated indictment be served to the accused and all other parties by 2nd Oct, 2018
Another issue that came to light during the first days of the trial is the poor facilitation to the defense by the registrar. The Judges citedArticle 28 (3) of the Constitution of Uganda which states thatfacilitation should be provided for the defense. Following a number of issues raised during the proceedings, Justice Jane Kiggundu adjourned the trial to November 5, 2018 for reading of charges and plea taking.

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