The trial of Thomas Kwoyelo, a former commander of the Lord's Resistance Army (LRA) continues to hang in suspense over the COVID-19 pandemic with no definite date for a resumption in proceedings. The last hearings were held in early March 2020 before judges announced an indefinite adjournment due to the pandemic. The trial is being presided over by a panel of four judges: Duncan Gaswagga, Jane Persis Kiggundu, Michael Elubu, and Stephen Mubiru.
"There is nothing going on because of the closure of the courts due to COVID-19. We are waiting for the Chief Justice to open the courts. However, we have made very substantive progress. If not for the COVID-19 pandemic, we would have moved far. When we resume, we will have to consider social distancing measures. In addition, the lockdown has been long, and this means it will take time to get in touch with our witnesses and other international partners who were helping us," said Charles Kaamuli, the lead prosecutor in Ongwen's case.
Kwoyelo is facing 93 counts of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005 in northern Uganda. Authorities arrested Kwoyelo in 2008, but he waited 10 years for his trial to begin. The start of his trial was delayed in part due to arguments raised that he was entitled to amnesty under Uganda's amnesty law, which was valid at the time of his capture. It was not until 2015 that the Supreme Court of Uganda ruled the Kwoyelo's trial was constitutional and did not breach the amnesty law.
After three years of pre-trial proceedings, the main phase of his trial started on September 24, 2018. The first two prosecution witnesses testified from March 12 to 14, 2019. From July 1 to 18, the court heard testimony from five additional prosecution witnesses. The seventh and eighth prosecution witnesses appeared from September 30 to October 3. From October 7 to 10, two more prosecution testified, and afterwards judges postponed the trial indefinitely due to a disagreement between the defense and the prosecution over the use of closed sessions. In December 2019, the trial resumed before the ICD sitting at the High Court in Kampala, however, proceedings could not take place due to the absence of Kwoyelo, the court assessors, interpreters, and witnesses and for this reason, judges adjourned the trial to January 2020.
From January 13 to 15, the trial resumed in Gulu and four prosecution witnesses testified. During proceedings held March 9 to 13, an additional four prosecution witnesses testified about killings allegedly perpetrated under Kwoyelo's command. In proceedings held from March 16 to 20, two more prosecution witnesses testified before the trial was interrupted by the COVID-19 pandemic outbreak in Uganda and a presidential decree leading to closure of all schools. The trial was indefinitely postponed the following week due to more restrictions on public gatherings that affected courts of law.
Reflections from Civil Society
As the trial pends resumption, civil society representatives have expressed mixed reactions over whether the trial will be effective for dispensing justice. Many cited with concern the frequent delays and adjournments, which have worsened by the COVID-19 pandemic.
"Of course, COVID-19 has interrupted proceedings because from March 2020 there have been no hearings. Nevertheless, the trial is going to have an impact, although we cannot ignore the the fact that one trial alone cannot account for all atrocities that happened during the northern Uganda conflict. This is where the use of transitional justice must come in and victims must be supported with other measures such as reparations," remarked Komakech Kilama, one the victims' legal representatives in Kwoyelo's case.
"As they say, justice delayed is justice denied, so the delay in Kwoyelo's trial means that victims at many levels have been denied justice," noted Francis Opio, a civil society representative from Gulu. "I do not see how victims will get justice with all these delays which is symptomatic of the Ugandan justice system."
For a former female LRA abductee, Kwoyelo's trial will have limited impact regardless of the outcome.
"The delay in Kwoyelo's trial is certainly a denial of justice. However, from a point of view of one who was abducted, the trial will not translate into justice whether or not Kwoyelo wins the case. If he is convicted, then the question remains whether his victims will get reparations and whether imprisoning him will result in satisfaction for those who suffered and lost their lives. If he is acquitted, the same questions will still apply," she said.
"I am one person who has been very interested in following Kwoyelo's trial, but I do not see anything tangible coming out of it," said Fred Ngomokwee, another civil society representative. "First of all, if you look at the duration it has taken it leaves a lot to be desired. I have been attending court, and there is not a single session you emerge from when you are convinced that the trial should proceed. Everything seems to be delayed. The system is also disorganized. Many of the victims are dying, and this makes me wonder who will benefit from the trial outcome. Even witnesses are dying. So, I do not see anything tangible coming out of it."
"The most important thing is justice for the victims, and this means that despite the delay the trial must continue until conclusion," observed Thomas, a legal practitioner in Gulu. "If the trial is not concluded it means the victims have been denied their rights and reparations. Victims have been classified in different ways. There are those who need immediate assistance such as rehabilitation; so when justice is delayed it also means that the victims' needs are delayed. So, efforts should be made to expedite the trial so that victims can get reparations. It is only after the trial has been concluded that many of the reparative mechanisms can take place."
Steven, a journalist in Gulu cited the numerous delays and inconsistencies in Kwoyelo's trial as one of the signals for a negative outcome.
"When a trial starts everyone is focused, and everyone wants justice to be dispensed as fast as possible," Steven said. "However, as time goes on, people lose interest, focus, and they forget. A major weakness in Kwoyelo's trial is that updates only get communicated when a hearing is close. Before that, everyone is quiet, the media is quiet, and even the legal team is quiet, and the communication becomes dead. There has been a lot of inconsistency characterized by needless adjournments, so to the local people this does not make sense because the trial has delayed so much. Justice delayed is justice denied, and this is how victims are now looking at the trial of Kwoyelo."
For others like Chris Ongom, a civil society representative from eastern Uganda, there is need to focus beyond Kowyelo's trial and consider other non-legal options.
"Justice in Kwoyelo's trial will only be realized if the trial is treated as one of the options within the wider transitional mechanisms that are required," he observed. "In Uganda there was intense advocacy for the passing of the transitional justice policy. Now that the policy has been passed, there is need to see implementation so that attention shifts from solely focusing on legal proceedings such as that of Kwoyelo which is tantamount to focusing on the legal justice system. We therefore expect that all transitional justice systems in northern Uganda will be activated."
With no end to the COVID-19 pandemic in sight, it remains uncertain when Kwoyelo's trial will resume.
Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan since 2006. He is also the Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.