Thomas Kwoyelo appears at a pre-trial hearing at the High Court in Gulu on 15 August 2016.
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What is causing the delays in Thomas Kwoyelo's trial?

12 May 2017 - 17:05

It has been several years since proceedings began against Thomas Kwoyelo at the International Crimes Division of the High Court of Uganda (the ICD). Kwoyelo is now facing over 70 charges of crimes against humanity, kidnap, pillaging, and murder among several others of that character and is said to have been a commander under the Lord’s Resistance Army.

Given the gravity of the offences allegedly committed and the fact that this will be the first trial for an alleged LRA commander taking place in Uganda, one would expect a huge turn up at the court to listen to the proceedings or even to have a look at Kwoyelo himself.

However, the proceedings have not received as much publicity as they ought to. This could be attributed to various reasons including several delays in the start of the trial.

Who is Thomas Kwoyelo?

Thomas Kwoyelo, also known as Latoni, 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 terrorized the areas of Pabbo in present day Amuru District in northern Uganda.

In 2009 he was captured by the UPDF while in active battle in the Garamba hills in the DRC. Following his return, he was brought before and faced charges at the ICD in 2011.

The Ugandan community has not been very engaged in the proceedings while few people are even aware of who Thomas Kwoyelo is. It may be right to mention that the Kwoyelo case, though being heard here in Uganda, has been overshadowed by the Dominic Ongwen trial at the ICC in The Hague.

Delays

Also, the case has had its share of delays: first there was a series of hearings to decide whether Kwoyelo was eligible for amnesty in terms of Uganda’s Amnesty Act. That went all the way to the Supreme Court where in April 2015 it was held that Kwoyelo should stand trial.

After this, the beginning of Kwoyelo’s trial was set to begin in May of 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.

Adjourned

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 not enough time to prepare before the due date.

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 necessary 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 at the time they were committed not a crime. Kwoyelo’s defense 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 in the matter.

Enough time

The matter will be heard again on 12 June 2017. This is to give defence enough time to respond to the application by 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 be ready by the time of hearing on the due date.

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 also attending an NGO-organised workshop in Entebbe.

Brenda Nanyunja is a volunteer researcher at the International Centre for Transitional Justice (ICTJ) Uganda. She 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.

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