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 Uganda’s
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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