Thomas Kwoyelo Trial Continues Amidst Challenges of a Public trial

By Nobert Dacan

The trial of former LRA commander Thomas Kwoyelo resumed Monday 30^th September, 2019, after a break of more than two months and on 10^th October it was postponed indefinitely due to issues of disclosure. Kwoyelo has been in detention since 2008 and is facing 93 counts of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court of Uganda for his alleged role in the conflict spanning more than two decades in Northern Uganda. Ten prosecution witnesses have so far testified in the trial and since the trial resumed, three prosecution witnesses have testified. The 7^th and 8^th witnesses appeared between the 30^th of September and 7^th of October, and two additional witnesses testified from the afternoon of the 7^th to the 10^th of October.

However, the prosecution relied on Article 28 and 126 of the constitution of Uganda and rule 36 of the ICD rules of procedures to apply for witness protective measures. These included concealing the identities of the witnesses by using camouflage, pseudo codes and closing court sessions to the public. The trial judges granted these protective measures because the prosecution team argued that the witnesses’ wellbeing could be at risk if not fully anonymised. The closing of the court sessions has prevented the public from following proceedings since the trial resumed, resulting in complaints from those wishing to attend the hearings. On Monday 7^th October several people who had come to attend proceedings expressed disappointment when they were told to walk out of the court room because the day’s session would be held in-camera. The prosecution has framed these protective measures as a desperate attempt to protect the witnesses while ensuring that the court obtains information and the trial goes on. They said on October 1, that this attempt is in the interest of the accused as well. In their ruling, the trial panel said under Art 28 (2) and ICD rule 36, court had to balance between the safety of the witness and a public trial, “…for that reason, the use of pseudonym, camouflage, exclusion of the public from certain parts of his testimony is granted”, said one of the trial judges.

It is, however, obvious that the public is not contented with this. The 10-15 members of the public who sat in a nearby room waiting for a full day, and who seemed to have travelled long distances to attend could be heard murmuring in dissatisfaction on October 7^th, when they were asked to walk out of the courtroom because the prosecution wanted to tackle a sensitive matter that needed protection. Details of all testimonies delivered in-camera have not been availed to the public.

On the 7^th of October, a woman aged around 50 years told the FJDI that it was not realistic to hold proceedings in-camera. “If you are telling the truth, why should you hide from the public?”, she questioned. To her, “it shows that the witness is not telling the truth.” Earlier on a defense counsel had also raised a similar concern during the proceedings of October 1, stating that the exclusion of the public offended the essence of Art 28 of Uganda’s constitution though the prosecution has been relying on it to seek protective measures. The defense lawyer said that, excluding the public breaches this Article and moreover, if other measures like camouflage and use of codes were in place, there was no need to exclude the public from the courtroom. The defense lawyer emphasized that holding the trial in-camera would affect the whole outcome of the trial because, “the public shall not trust it…the public would say…they closed themselves, conducted the trial and made their ruling.” He went as far as referring to the ICC’s trial of Dominic Ongwen, “People in Gulu have been following a trial in The Hague yet they cannot follow this trial which is being conducted in Gulu,” he said.

On 10^th October, the trial was adjourned indefinitely due to issues of disclosure. This is not the first time proceedings is being interrupted because of the same thing.

The ICD of Uganda’s High Court being a ‘young’ institution established in 2008 to try international crimes has greatly suffered from difficulties of bridging the gap between the court and the public. It seems that the public who are interested in following this international trial are disconnected and unable to follow despite the court being brought closer to the case location.

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

FJDI Monthly Pictorial- September, 2019

Kwoyelo Trial Continues as prosecution calls 7th and 8th witness

Kwoyelo in the dock as his trial goes on in Gulu

By Nobert Dacan

Kwoyelo has been in detention since the Ugandan army captured him in 2008. He is facing 93 charges of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court of Uganda as a result of his role as a LRA commander during the war in northern Uganda. His trial has however progressed at a slow pace.

The trial resumed on Monday, the 30^th of September 2019, after a break of more than two months with the testimony of the 7^th prosecution witness, referred to as C4.

C4 testified about his experiences and interactions with the accused, including details on how the witness was abducted by Kwoyelo’s men during an attack on Abera village in Pabbo subcounty. During examination C4 explained that he knew Kwoyelo very well since their childhood, but that C4 had not seen him since C4 was abducted from Abera in 1994. 

The witness explained how the village was attacked by armed men led by Kwoyelo, whom he later learnt were LRA rebels, and was abducted along with approximately 50 others. The abductees were forced to carry the goats that were looted as they moved throughout the night across a stream called Aceri. At least 4 people unable to carry the goats were punished and left to die on the road, though C4 later found out that these people were found and rescued by the community who tracked their path the following morning. Only one later died from the hospital.

The witness recounted that after crossing the stream, Kwoyelo addressed the abductees and told them that they would be divided into two groups; one that would be released and another that would remain. C4 was in the group that was released and was directed by Kwoyelo to follow a different path back as the LRA soldiers had planted landmines on the one they came from. C4 also explained that most of the remaining abductees never returned home since, and that he is convinced that they have passed away by now. After returning and recovering from his injuries, C4 moved to Gulu town where he has lived since.The defense counsel was critical of the witness’ account, stating that C4 had gone beyond the scope of his testimony.

Proceedings were adjourned to the following day, Tuesday the 1^st of October 2019 where C4 completed his testimony with a cross-examination by the defense team. In the afternoon, the prosecution called another witness – PW8, referred to as C7. C7 entered the courtroom in camouflage wearing loose, black clothing and headscarf, and dark sunglasses. Prosecution attorney, William Byansi commenced by applying for protective measures for the witness and requested that the session should exclude the public and be held in camera due to sensitivity of the witness’ testimony. Byansi went on to assert that the prosecution team had done a risk assessment and that the findings indicated danger to the life of the witness if his identity is not sufficiently protected. He further stated that the witness was a direct victim of the accused person and lives in the same community as sympathizers of the accused. The prosecution finally requested that if a fully closed session was impossible, at least the particularly sensitive parts of C7’s testimony should be held in-camera.

Defense counsel Alaka did not object to the use of camouflage and pseudonym but opposed closing the session for the public. He claimed that closing the session would go against Kwoyelo’s rights as an accused, and that the prosecutions referral to a risk assessment unknown to the court, and to the witness as “a direct victim” was prejudicial. Furthermore, he argued, closing the session would decrease the publics’ trust in the trial and the ICD.

The trial panel based their ruling on Art. 28 (2) and ICD rule 36, and stated that the court had to balance between the safety of the witness and a public trial: “for that reason, the use of pseudonym, camouflage, exclusion of the public from certain parts of his testimony is granted.”

Shortly after the prosecution had started leading C7 through his testimony about his abduction from Abera village in Pabbo, they requested the public to be excluded due to a sensitive part in the testimony. The remainder of the session until 5pm was held in-camera, and the session on the following morning of the 2^nd of October continued as a closed session