Thomas Kwoyelo was captured 6 years before Dominic Ongwen. Why has his trial been plagued by so many delays?
By Brenda Nanyunja
Cast your mind back to 2009. Soldiers from the Uganda People's Defence Force (UPDF) capture wanted Lord’s Resistance Army (LRA) commander Thomas Kwoyelo while in active battle in the Garamba hills in the DRC. His arrest seemed the result of sheer happenstance. Kwoyelo couldn’t believe his rotten luck:
"We just bumped into [Uganda's army] somewhere, and that was it," Kwoyelo said then about the circumstances of his capture.
According to Al Jazeera News, UPDF made no secret that it considered Kwoyelo a valuable catch.
"This man has been in the bush for quiet long. He knows the tactics, he knows the methods, he knows the sources of weapons. He has been one of our most wanted commanders. Once he recovers, then we expect a lot from him,” said an unnamed UPDF soldier.
Besides the valuable intel Kwoyelo could provide, his capture also raised the appealing spectre of finally bringing a senior member of the LRA to trial. Also known as Latoni, Kwoyelo is alleged to have become a commander within the LRA after being captured by the rebel group as a child. He is also alleged to have operated and terrorised the areas of Pabbo in present day Amuru District in northern Uganda.
Kwoyelo in the dock
Following his arrest in 2009, Kwoyelo was charged with crimes under Uganda’s penal code. Kwoyelo was also charged with violating the Fourth Geneva Convention, pursuant to Art.147 of Uganda’s 1964 Geneva Conventions Act in August 2010. Kwoyelo’s trial before the International Crimes Division of the High Court of Uganda (the ICD) began on 11 July 2011.
Kwoyelo is facing over 70 charges of crimes against humanity, kidnap, pillaging, and murder among several others of that character. Ugandans have not been very engaged in the proceedings. Few people are even aware of who Thomas Kwoyelo is.
Given the gravity of the offences allegedly committed and the fact that this would be the first trial of an alleged LRA commander taking place in Uganda, one would expect a sizeable turnout in the public gallery of the High Court to listen to the proceedings or even just to sneak a peek at Kwoyelo himself.
However, the proceedings have not received as much publicity as they ought to. One explanation for this is that because it is being heard in Uganda, the Kwoyelo case has been denied the oxygen of publicity by the Dominic Ongwen trial currently going on in The Hague. It, however, hasn’t escaped notice that though Kwoyelo was captured approximately 6 years before Ongwen was handed over to authorities in The Hague, the latter’s trial at the ICC seems to be making more headway. Why is that?
The case has had its share of delays: first, there was a series of hearings to decide whether Kwoyelo was eligible for amnesty according to the terms set out in Uganda’s Amnesty Act. The matter went all the way to the Supreme Court where in April 2015 it was decided that Kwoyelo should stand trial.
After the Supreme Court’s judgment, the Kwoyelo trial was scheduled to start in May 2016. However, this was postponed due to various reasons including the need to pass rules to guide the proceedings at the ICD and their attendant technicalities. Other challenges have included the disclosure of evidence by the prosecution and Kwoyelo’s lawyers and the court obtaining funds to allow it to hold its hearings in Gulu.
Currently, the Kwoyelo case is at a pre-trial stage where the confirmation of his new charges is yet to be done. If these charges are confirmed, a full trial will follow.
According to the ICD Registry, this confirmation of charges hearing was scheduled to take place on 10 May 2017. However, this did not happen as the prosecution had filed their pleadings late, leaving the defence no time to prepare before the date set for the confirmation of charges hearing.
At a previous hearing, the court had also adjourned the matter to allow the prosecution enough time to prepare a proper indictment to include the applicable laws.
Part of the charges against Kwoyelo are brought under what is known as “customary international law”, which is a set of legal rules that come from the practice of countries, as opposed to written treaties or international agreements.
However, this has raised an issue because the Ugandan constitution prohibits trial and punishment for acts which were not a crime at the time they were committed. Kwoyelo’s defence lawyers have objected to the use of this set of international practices saying they have no premise in the Ugandan legal system and are therefore a “non-existing law”.
This is an issue that may call for the matter to be referred to the Constitutional Court for interpretation which may mean further delays.
The matter will be heard again on 12 June 2017. This is to give defence enough time to respond to the application by the prosecution and also to allow the prosecution enough time to respond to the defence. Enough time is needed because it is quite a technical matter and it is vital that both parties are ready when the hearings are set to start.
To underscore how all the parties have, in their own ways, contributed to the delays in the Kwoyelo trial, on the day of the initially scheduled 10 May hearing, both the lawyers for the prosecution and the defence together with the judge in the matter were all attending an NGO-organised workshop in Entebbe.
A version of this piece was originally published by Let's Talk Uganda and is reproduced here with permission.
Brenda Nanyunja holds an LLM in Transnational Criminal Justice from the University of the Western Cape in Cape Town, South Africa. She is reporting on the Thomas Kwoyelo case for Let’s Talk, Uganda from Kampala.
Photo credit: Benard Okot/JRP