The trial of the former commander of the Lord’s Resistance Army, Thomas Kwoyelo, resumed before the ICD at Gulu High Court from March 10th to March 13th 2020. This hearing follows an adjournment on January 15th, 2019, after the prosecution had completed incidence ‘C’.
On March 10th, only one of the four assessors appointed in March 2019 was available to attend the trial. The assessors are non-lawyers who offer guidance to the judges in reaching their decision. They represent the views of society on the trial, which makes their presence key in terms of accountability and transparency. Pursuant to Section 69 of the Trial on Indictment Act[1], the hearing was postponed to the following day.
From March 11th to March 13th, the trial resumed in the presence of 3 assessors. The Prosecution team presented a new incidence ‘G’ and called 5 witnesses who agreed to testify in open court session using pseudocodes. One of them was allowed to testify from a different room through video link, with the public being allowed to stay in the courtroom unlike in the previous hearing where the public could not be allowed in courtroom.
Five witnesses testified about an attack which occurred in February 1996 which resulted in the killing of three people. One of the witnesses stated that he could identify Thomas Kwoyelo as one of the attackers.
The other key witness was a community leader who highlighted the impact of the conflict on his community, mainly referring to the sending of people in Internally Displaced People camps, where precarious living conditions prevailed, movements were restricted and women were often abused. He further testified that returnees from his community who managed to escape the LRA forces had mentioned the name of Thomas Kwoyelo as a commander.
While cross-examining the witnesses, the Defence asked about the role of the LDU (Local Defence Unit) home guards in the community and their relation with the Government forces. Responses indicated that they had been recruited by the Government and after briefly staying within the community, they joined the Government forces in following the rebels. The LDU during the conflict helped in providing security to the communities while working closely with the Government forces.
During the whole week, and despite the provision of Rule 35 of the Rules of Procedure and Evidence[2], the hearings were conducted in the absence of the Victims counsels.[3] This casts even more doubt on victims’ participation guarantees at the ICD. The broad terms of Rule 35 constituting the only procedural indication in that regard, it calls for clear guidelines to be adopted in practice. However, there are still none, even though the judge had ordered the Registrar to meet with the Victims’ representatives in December 2019. Even the Victims’ representatives seem discouraged: in the letter they sent to the Court notifying their absence, they said it would not affect the proceedings since no guidelines had been given so far on victims’ participation.
In addition, there was a challenge of interpretation which prompted the Court to swear in another interpreter in the middle of the hearing. This is not the first time this situation is happening and thus it is important that the Court provides a person who can make proper interpretations to enable the accused and the public to follow the proceedings The hearing was adjourned to March 16th, 2020.
This trial monitoring report was complied with support from Foundation for Justice and Development Initiatives (FJDI) who observed the trial in Gulu.
[1]“If more than one of the assessors are prevented from attending, or absent themselves, the proceedings shall be stayed, and a new trial shall be held with the aid of different assessors”.
[2]“The Court shall, in any direction or order, take into account the best interests and rights of the victims”.
[3] One was attending the closing statements in the Ongwen trial at The Hague and the other was sick.