Document-Type: Policy Brief

“Any further delay with this trial is a dark spot on our part as Judiciary” – ICD

The Trial of Thomas Kwoyelo resumed on 17th April 2023 and is scheduled to run up to the end of the month at the International Crimes Division of the High Court (ICD) sitting at Gulu High Court in Gulu City, Northern Uganda.

Having commenced the trial on 24th September 2018, the court had its first prosecution witnesses testify in March 2019 and since then trial sessions have been held periodically between Kampala and Gulu. The most recent was in Gulu between 28th November and 15th December 2022 where 14 prosecution witnesses were prepared and presented to substantiate the grounds against the accused, bringing the total number to 48 prosecution witnesses so far.

In an interview with a member of the prosecution team he confirmed that the case has close to 120 witnesses but that not all of these will be presented, to avoid repetitive evidence.

“We are reviewing available evidence and picking the best among the pool. Some Witnesses are aging and losing memory while others have since passed on, so from what is available, we evaluate and pick the best from the stock”

Counsel Charles Kamuli- Prosecution team member

It is hoped that within these two weeks, Prosecution will be able to close presenting its witnesses. This will pave way for the defense team to begin presenting their own witnesses in the next sessions later in the quarter pending availability of funds. Later there will be a victims’ session where the victims’ counsel will present their own witnesses.

Thomas Kwoyelo, captured in 2009 by the Uganda People’s Defense Forces, is arguably one of the longest-accused persons on pre-trial detention in the history of International Criminal Justice. To ensure that the case progresses, the ICD set a timeframe of holding quarterly sessions, but there has been a lack of consistency in practice. However, the court believes it can conclude the case within one and a half years, provided that funds continue to be released quarterly as planned.  “This delay is a dark spot on our part as the judiciary in as far as justice is concerned”, said the Head of the ICD who is also an alternate judge in this case.  “The victims are so concerned, and so is the accused; he is not being tried as he should, having been in incarceration since 2009. Now that the government has committed resources, we are all committed to pushing the case forward” the Head of the ICD remarked.

The defense team though, in a separate interview, held a different viewpoint on the timeframe within which this trial will be concluded given the uniqueness of the trial and the pace at which things are moving forward:

“Given the uniqueness of the case, a witness needs ample time to narrate their story and share their account, you can’t tell how long that story is, they need time. It takes time to call upon a witness to recollect that painful ordeal that happened 20 years ago and often times this leads to a psychological breakdown during the thought process. In such situations, the court cannot proceed, it has to be adjourned to give the witness time to get composed and put themselves together.”

Counsel Evans Ochieng, a Defense team member

The trial is proceeding at a very slow pace due to the insufficient financial resources that are required for a trial process that involves so many parties. The trial has four Judges, four prosecutors, four defense attorneys, two victim counsels, and a huge team of court staff including the IT team setting up the video links, the Court Assessors, the Interpretation team, court clerks, the rapporteurs, the documentation team, media team and so forth.

“It’s hard to project when the case will end especially in situations like ours where you have money this quarter and not sure whether you will have money next quarter.”

Counsel Evans Ochieng- Defense team member

Under the principle of positive complementarity[1],  national institutions like the International Crimes Division of the High Court in Uganda should have the necessary capabilities to effectively and efficiently handle investigations and prosecution of international crimes under the Rome Statute[2]. To this end, ASF has provided support to the ICD to develop and evolve its capacity. For instance, through the provision of technical support for the development of the ICD’s Rules of Procedure and Evidence and the guidelines on Registry Management. ASF has also engaged in capacity-building of the court, providing support to victims’ lawyers and broadly enhancing victims’ participation. To ensure the sustainability of these efforts, ASF, with its partner ICTJ, embarked on a study that led to the development of a Judicial Bench Book, which is an authoritative reference resource on the practice and procedure for the criminal prosecution of international crimes. ASF’s support has in many ways helped the relatively young institution that is the High Court to operate in line with the required international standards, thereby enhancing its capacity to deliver on its mandate as well as its international credibility and recognition.

Being victim-centered is at the core of ASF’s transitional justice strategy and this has informed the nature of our interventions. Working collaboratively with grassroots organizations such as Foundation for Justice and Development Initiative (FJDI), Gulu Women Economic Development and Globalization (GWED-G), and the Victims Counsels, we have conducted outreach where information regarding the trial has been disseminated and feedback from the victim communities sought. Radio talk shows have also been organized where court officials and other stakeholders discuss pertinent issues arising from the trial and where victim community members can call in and have their say on the state of affairs surrounding the trial and the possible next steps. This has been powerful in ensuring that victims are informed and aware of what is happening but also in ensuring that their views inform court officials on what victims think and perceive of the whole process.

ASF welcomes the government of Uganda’s adoption of the National Transitional Justice Policy, a comprehensive and key framework designed to address past human rights violations with the aim of promoting justice, accountability and reconciliation which are key pillars in achieving sustainable peace.  However, there is a need to expedite the enactment of the legislative instruments to operationalize the policy and ensure that victims achieve justice.

In the meantime, victims grapple with real life-threatening issues that need urgent and immediate attention. For instance, some victims returned with bullets in their bodies that necessitate surgical and rehabilitative processes to have these removed from their bodies. Others were victims of sexual violence who need medical support to address their reproductive and other enduring consequences of the violence as well as psychosocial support to manage their trauma.

There are also challenges regarding the both social and familial integration of children born in captivity and the reintegration of their mothers who suffer from stigmatization within the communities. To extent sometimes that the victims and their children have been forced to leave their communities and try to settle in urban centers and towns. Faced with this stigmatization and difficult living circumstances, some survivors have committed suicide or harbor suicidal thoughts.

In the absence of any interim support to address the long-lasting impacts of the violence and human rights abuses they have suffered, victims are concerned that by the time delayed justice is served, many will have already died and that justice will therefore not serve its intended purpose.

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[1] Fidelma Donlon (2011), The International Criminal Court and Complementarity From Theory to Practice, pp. 920 – 954,Cambridge University Press.

[2] This principle envisions a coordinated approach to the prosecution of crimes by the International Criminal Court and national authorities. This points to a two-tiered policy to combat Impunity where ICC initiates prosecution against those who bear the greatest responsibility for crimes under Investigation and on the other hand encourages national trials where possible for the lower-ranking perpetrators. Such a principle would encourage the use and admission of information and evidence collected by the ICC before National Courts like the International Crimes Division of the High Court in Uganda. Article 93(10) (a) of the Rome Statute equally encourages such cooperation

This policy brief was written by Jimmy Wamimbi with valuable input from Faridah Kyomuhangi, Simon Mallet, Irene Winnie Anying, and Valérie Arnould.