Will justice be served in Uganda’s first trial of LRA war crimes?

Description

Kwoyelo faces more than 50 counts of murder, destruction of property and abduction in relation to several atrocities in two northern Ugandan districts, in his capacity as a ‘middle level commander or Colonel’ in the LRA . The prosecution contends that he planned, commanded and or executed the attacks.

At least 113 witnesses have been lined up to testify against Kwoyelo in the northern town of Gulu. The trial will be the first of its kind using Uganda’s own domestic justice mechanisms to try a suspect for international crimes

Amnesty denied 

Kwoyelo’s trial follows an April 2015 Supreme Court ruling that denied him the amnesty which had applied to other former LRA members who had surrendered or been captured [IJT-180]. The case against Kwoyelo was re-instated, overruling the Constitutional Court’s ruling in 2011 that he was entitled to amnesty.

The drawn-out case highlights the continued lack of clarity about Uganda’s approach to prosecution or amnesty for former rebels – a debate which has many in northern Uganda complaining about injustice.

“Why is the Director of Public Prosecutions insisting on trying Kwoyelo despite overwhelming calls and support for his forgiveness? As war victims and people who lost our relatives in the conflict, we have forgiven Kwoyelo. Let Kwoyelo be granted amnesty like other LRA combatants who surrendered or were captured,” said Charles Akena from the Amuru district which lies at the heart of the area affected by well-documented atrocities committed by the LRA in which thousands were killed and hundreds abducted. At the height of the LRA insurgency at least 1.8 million people were displaced when Ugandan government forces were operating in the north.

“Kwoyelo should be set free and come back home. We shall use the traditional justice mechanisms for his cleansing and community reconciliation,” Akena, himself a victim of LRA atrocities, told IJT from his home in Pabbo, where Kwoyelo was also born.

However, others disagree. Boniface Ojok, co-founder of the Justice and Reconciliation Project, described the Kwoyelo trial as “part of the justice dividend that some victims are waiting for”, noting that “the ICD, unlike the International Criminal Court (ICC), is home-grown - a court born in Uganda as an outcome of the Juba agreements [talks between the government and the LRA in 2006-2008] to which all Ugandans subscribe”.

Joyce Freda Apio, a Kampala based international justice expert argues that amnesty should only apply when someone is simply accused of rebelling against the state. And she says it cannot be used in cases of “war crimes, crimes against humanity and genocide” because then it would become “a gateway to commit crimes with impunity.”

Apio describes previous decisions to apply amnesty provisions to other former LRA commanders such as Ceaser Accellam and ‘Brigadier’ Sam Kolo a former LRA spokesperson, among others, as “a mistake occasioned by lack of understanding of the amnesty act by the implementers: the Amnesty Commission”.

At least 27,000 former combatants, including some 13,000 from the LRA [IJT-169], have benefited from Uganda’s amnesty law since it was enacted in 2000.

Kwoyelo’s defence team, comprising locally and internationally well-known lawyers Calab Alaka, Nicholas Opiyo and Francis Onyango, has also raised concerns fairness of the procedure against him on a number of over levels. Lack of equality of arms, under-resourced funding, delayed disclosure of evidence are some of the issues. But the use of new rules and procedures, including victim’s representation and participation in the court, improved witness protection, the appointment of victims counsel and field outreach missions – each of which developments mirror comparable procedures at the ICC – are also a focus for their complaints.

One source close to the defence who preferred not to be named even pointed out that “the rules of the court are in draft and have never been [officially] gazetted” by the government. In his view the court’s new ways of working are “not enforceable”.

Gulu trial will boost victim's participation

Local supporters of the ICD process though are happy with the changes: “Stationing [the trial] in Gulu will promote victim’s participation in the proceedings and ownership of the local justice processes,” Apio, told IJT

Luke Moffett, a reparations expert and lecturer at Queen's University Belfast, Northern Ireland admits that, as the first ever time victims will participate in Ugandan criminal proceedings, “it will be a challenge for judges and other participants to see how that works.” 

Maybe the uncertainty around the new untested procedures had led both the victim’s representatives and the defence team to oppose the trial starting in May and to call for a delay.

The pressure is certainly on: “The Kwoyelo case has been a long time coming” says Moffet, It’s “long overdue” agrees Apio. There’s has been a large investment by the international donor community into the ICD. In July last year the then prosecutor told IJT [IJT-180] that 18 cases of former rebels were being investigated. Anna Ottilia Maunganidze, senior researcher with South Africa’s Institute for Security Studies (ISS) wrote in a blog this month that the trial will be a true test of Uganda’s ability to try war crimes “With charges spanning close to two decades, it will not be an easy trial at all,” she said.

Uganda’s commitment to the ICD comes against the backdrop of a yoyo relationship with the International Criminal Court. president Yoweri Museveni was the first African leader to ask the court to investigate war crimes in 2004, and handed over former LRA commander Dominic Ongwen to The Hague for trial in 2015 [IJT-189], but he’s also as an outspoken critic of the court, accusing it during a live televised presidential debate in February of being “not serious”, “partisan” and “not balanced”.

And questions remain about the bigger picture for the many thousands affected in northern Uganda. “One trial [Kwoyelo] will not bring justice to the hundreds of thousands of victims who continue to suffer as a result of the conflict,” admits Moffet.

“Victims are aware that ICD alone cannot also be seen as the full package they have been yearning for,” says Boniface Ojok. But he warns that “a sequential approach that seeks to pursue accountability first before resorting to reconciliation undermines the local context where justice is seen in congruent to reconciliation”. He and other experts are still calling on the authorities in Kampala to pass a proposed transitional justice policy “in order to guarantee victims the full package of justice”.