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.
Thursday, 27 October 2016
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.
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.
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.
Monday, 23 May 2016
REMEMBERING THE LUKODI MASSACRE
On 19th May 2016, residents of Lukodi village commemorated the 12th anniversary of the Lukodi Massacre. The prayers are held annually to remember the victims who lost their lives almost twelve years ago when LRA rebels raided Lukodi village.
Unlike previous celebrations, this one was different because Dominic Ongwen, the ex-LRA commander alleged to have led the attack against Lukodi is currently in the custody of the International Criminal Court (ICC). During these celebrations, the ICC representative present at the function also revealed that the trial of Dominic Ongwen may commence on 05 December 2016.
Another factor that made this particular anniversary of the Lukdoi massacre significant was that for the first time ever, the ceremony was graced by Rwot David Onen Acana II, the Acholi Paramount Chief. Also in attendance were representatives of the ICC from the office of the prosecutor and the victims’ participation and reparations section (VPRS). Victims’ legal representatives; Francisco Cox, Joseph Akwenyu Manoba and Jane Anywar Adong were also present. Members of civil society in northern Uganda, the media, traditional and religious leaders, and community members of Lukodi were also present at the function.
Representatives of the Foundation for Justice and Development Initiatives (FJDI) attended the ceremony and interacted with two survivors of the massacre.
Attached is a brief about how the day was commemorated. The report is also accessible from FJDI's website www.fjdi.org or using this download link: https://drive.google.com/open?id=0B8mSmNvPrstMaGRYMmhsYllZSTg
Unlike previous celebrations, this one was different because Dominic Ongwen, the ex-LRA commander alleged to have led the attack against Lukodi is currently in the custody of the International Criminal Court (ICC). During these celebrations, the ICC representative present at the function also revealed that the trial of Dominic Ongwen may commence on 05 December 2016.
Another factor that made this particular anniversary of the Lukdoi massacre significant was that for the first time ever, the ceremony was graced by Rwot David Onen Acana II, the Acholi Paramount Chief. Also in attendance were representatives of the ICC from the office of the prosecutor and the victims’ participation and reparations section (VPRS). Victims’ legal representatives; Francisco Cox, Joseph Akwenyu Manoba and Jane Anywar Adong were also present. Members of civil society in northern Uganda, the media, traditional and religious leaders, and community members of Lukodi were also present at the function.
Representatives of the Foundation for Justice and Development Initiatives (FJDI) attended the ceremony and interacted with two survivors of the massacre.
Attached is a brief about how the day was commemorated. The report is also accessible from FJDI's website www.fjdi.org or using this download link: https://drive.google.com/open?id=0B8mSmNvPrstMaGRYMmhsYllZSTg
Friday, 13 May 2016
The Failure to Arrest President Omar Al-Bashir of Sudan is a breach of Uganda’s International Obligations
Press Release
13 May 2016
On Thursday 12 May 2016, President Omar Al-Bashir of Sudan was in Uganda to attend the swearing in ceremony of President Yoweri Kaguta Museveni. President Omar Al-Bashir is currently wanted by the International Criminal Court (ICC) as a result of atrocities committed in the Darfur region, for which he stands accused. Uganda as a state party to the ICC was under obligation to arrest him.
President Al-Bashir was not arrested on his visit to Uganda. On an unfortunate note, Uganda’s President Yoweri Kaguta Museveni also went ahead to describe the ICC as ‘a bunch of useless individuals’.
President Al-Bashir was not arrested on his visit to Uganda. On an unfortunate note, Uganda’s President Yoweri Kaguta Museveni also went ahead to describe the ICC as ‘a bunch of useless individuals’.
The Foundation for Justice and Development Initiatives (FJDI) would like to express disappointment at this turn out of events, and the unfortunate statements made by President Yoweri Kaguta Museveni.
This is because Uganda is a State Party to the ICC and was one of the first countries to ratify the Rome Statue on 14 June 2002. Uganda went on record as one of the first countries to make a referral, when on 16 December 2003 it referred the situation of the Lord’s Resistance Army (LRA) to the Office of the Prosecutor. Thereafter Uganda cooperated with the ICC to conduct investigations leading to the issuance of arrest warrants against five top commanders of the LRA in 2005. Uganda hosted the first review conference of the ICC in 2010. When Ex-LRA Commander Dominic Ongwen surrendered on 16 January 2015, Uganda again cooperated with the ICC and handed him over for trial. The Confirmation of Charges hearing of Dominic Ongwen, held on 21-27 January 2016, also showed an active government cooperation, with much of the evidence produced by the Office of the Prosecutor coming from the Ugandan security forces and police in the form of radio intercepts.
Uganda’s failure to arrest President Omar Al-Bashir is therefore a breach of its international obligations under the Rome Statue as well as of its obligations towards the people of northern Uganda and their post-conflict plight. The comments by President Yoweri Kaguta Museveni are also most unfortunate, as they come at a time when the ICC is about to commence the trial of Dominic Ongwen in The Hague.
The Foundation for Justice and Development Initiatives (FJDI) calls upon the Government of Uganda to arrest President Omar Al-Bashir in the event that he visits Uganda again. We also urge the President of Uganda and other Government representatives to support the ICC in its endeavor to fight impunity and achieve global justice. We finally urge the Government of Uganda to maintain a consistent approach to its already existing and embraced commitments to international justice and to the people of Northern Uganda.
We note to this end that in addition to the Ongwen trial at the ICC, the Government of Uganda is currently prosecuting LRA Commander Thomas Kwoyelo at the domestic International Crimes Division (ICD). His trial is due to commence on 18th July 2016.
The Foundation for Justice and Development Initiatives (FJDI) works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. FJDI seeks solutions to the long-term impacts of the conflict which ravaged northern Uganda by advocating for redress of human rights violations and atrocities committed during the conflict, implementation of sustainable development initiatives, and promotion of economic empowerment through livelihood programs.
Contact: info@fjdi.org, Web: www.fjdi.org, Twitter: @FjdiInfo
P. O. Box 1422, Gulu | Phone: +256471432029, +256772835076 | Email:info@fjdi.org
Plot 10, Lagony Road, Gulu Town
Website: www.fjdi.org | Twitter: @FjdiInfo | Facebook: fjdi
Tuesday, 26 April 2016
SUPPORT VICTIMS' LEGAL REPRESENTATIVES: CSO STATEMENT TO THE ICC
A cross-section of CSOs in Uganda have petitioned the ICC to support to
victims' legal representatives in the trial of the ICC Prosecutor Vs
Dominic Ongwen.
On 23 march 2016, the Pre-Trial Chamber II of the International
Criminal Court (ICC) confirmed 70 charges brought by the ICC Prosecutor
against Dominic Ongwen and committed him to trial before a Trial
Chamber. Prior to its decision confirming charges against Dominic
Ongwen, the ICC recognized the right of victims to appoint their own
legal representative BUT in the same breath denied the victims’ chosen
legal representatives access to the Court’s legal aid. For legal
representation to be both effective and meaningful, legal
representatives and their teams have to dedicate a substantial amount of
time particularly in cases such as that involving DOMINIC ONGWEN which
has numerous participating victims and voluminous evidence. If legal
representatives are required to carry out their victims’ related work
pro bono and earn a living from other legal work, this may impact on the
time they are able to devote to the representation of victims. This
statement therefore calls upon the ICC to go beyond recognition and
provide legal aid as well. The statement can be accessed HERE or at:https://drive.google.com/file/d/0B8mSmNvPrstMQWUtSW0zQnczc28/view?usp=sharing
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