Thomas Kwoyelo, seen here after his capture, began his trial in Gulu on July 11 2011 (Photo: New Vision)

On July 11, I had the opportunity to attend some of the beginning of the first trial of Uganda’s International Crimes Division of the High Court, in Gulu, Northern Uganda. On the stand is Thomas Kwoyelo, a former senior Lord’s Resistance Army combatant. He is being tried on 12 counts and 53 charges dating between 1996 and 2009. So exhaustive is the list that it took almost two hours to read out as Kwoyelo stood subdued and at times appearing exhausted. A legal observer suggested that the prosecution “piled on” the charges against Kwoyelo in order to guarantee he is convicted on at least some counts, given that it will be difficult to prove many of the charges.

The trial began rather oddly. There were hundreds of people awaiting Kwoyelo’s appearance at the Court. He came in on a convoy. The first truck was filled to the brim with police officers and other alleged criminals heading to the Court. An extraordinarily odd moment unfolded with the presence of a marching band (see below). Here’s a clip of his arrival:

The International Crimes Division of Uganda’s High Court was set up in the wake of the Juba Peace Talks (2006-2008), the latest attempt to resolve the seemingly intractable conflict between the Lord’s Resistance Army and the Government of Uganda. In the context of widespread fears that LRA leader Joseph Kony would not sign the peace agreement unless the ICC arrest warrant against him was dropped, the International Crimes Division was viewed as an institution which could circumvent the need to bring LRA leaders to the ICC. In the end, however, Kony refused to sign the final Juba Peace Agreement. Nevertheless, the Government of Uganda moved forward and established the Division. Kwoyelo, who was captured in 2009, is the Division’s first defendant.

The biggest controversy at the trial has to do with whether or not Kwoyelo should receive amnesty. In 2000, the Government of Uganda passed the Amnesty Act which was intended to provide protection from prosecution as an incentive to LRA combatants who defected. The record of the Amnesty Act remains uncertain – some say it has been effective in getting LRA combatants to defect; others disagree. It has been a rather confused process. Those “most responsible” for atrocities in the LRA, including Joseph Kony, have been offered full amnesty by the government only to have it revoked and then offered again.

Kwoyelo’s defense counsel argue that he should be granted amnesty. Kwoyelo has applied to Uganda’s Amnesty Commission and many believe there is no legal reason to bar him from receiving amnesty which does not stipulate that anyone should be excluded. In other words, it is a blanket amnesty. However, to date, he has not received a verdict and his application is “pending”. Further complicating matters is that other LRA members with higher seniority in the rebel group have successfully received amnesty. Caleb Alaka, Kwoyelo’s chief Defense Lawyer argued:

“High officers in the LRA…were granted amnesty. Since the brigadiers were granted amnesty, the denial by the directorate of public prosecutions…infringes on [Kwoyelo’s] constitutional rights to fair treatment.”

In other words, by trying Kwoyelo while amnestying others, Kwoyelo’s defense raises the specter that this constitutes a violation of the constitutional guarantee of equality before the law. If the judges at the trial decide that there is a constitutional issue with his amnesty application, the issue will be referred to the Supreme Court of Uganda which would, presumably, have to adjudicate who, specifically, is admissible under the amnesty. 

Exacerbating the controversy is that the Directorate of Public Prosecutions (DPP) noted in Alaka’s statement is the same body adjudicated Kwoyelo’s amnesty application.

Thomas Kwoyelo with his lawyer at the first hearing of the International Crimes Division of the Ugandan High Court in Gulu (Photo: Moses Akena)

Some will say this argument is irrelevant because amnesty laws for international crimes run contrary to the international duty and obligation to prosecute. That is not so clear, particularly in this case. Kwoyelo is not one of the LRA commanders sought by the ICC. Further, despite the high rhetoric of human rights groups, as numerous legal scholars have pointed out, the international duty to prosecute may be crystalizing but has not yet crystalized. Amnesties continue to be used as much, if not more frequently, in negotiated peace settlements and, to quote the renowned legal academic Michael Scharf on this issue:

“a ‘rule’ that is so divorced from the realities of State practice…cannot be said to be a binding rule at all, but rather an aspiration.”

To date, the international community has not vehemently demanded that other captured LRA leaders like Brigadiers Sam Kolo and Kenneth Banya, who have received amnesty, must be prosecuted. It is unclear why Kwoyelo should be treated substantially differently than either Kolo or Banya. More specifically, if Kwoyelo’s case is unlike others and the Government feels he must be prosecuted, the reasons for denying him amnesty and thus necessitating his prosecution must be made clear to him and his defense. Indeed, you would think this should happen before his trial.

There are numerous other interesting dynamics to consider during this trial that both international lawyers and conflict resolution observers should be keen to keep an eye on. For lack of time, I will briefly consider two.

First, Kwoyelo’s charges are based on violations of Uganda’s 1964 Geneva Conventions Act. The Act requires that the violations be done in the context of an international conflict, understood here as a conflict between two or more states. In order to demonstrate that Kwoyelo’s acts occurred in the context of an international conflict, rather than a civil war, the prosecution may have to provide evidence that external actors were directly involved in the war. In order to do so, the prosecution would presumably have to illustrate that the government of Sudan was a party in the conflict. While it is clear by now that Khartoum used the LRA as a proxy group against Southern Sudan’s SPLM/A, the Government of Uganda has never produced direct evidence of it.

Second, the trial – if conducted fairly and legitimately – will certainly set a key precedence for international criminal justice as it relates to Uganda. In 2008, the ICC rejected an admissibility case to have the Court’s warrants against Kony and other senior LRA members dropped. While one trial may not be sufficient, if the International Crimes Division can successfully try LRA combatants, attempts to challenge the ICC’s warrants may receive new life.

The next hearing in the trial is scheduled for July 25th, when the issues raised by the defense will be considered and adjudicated. While many are seeking a “speedy” trial, it seems unlikely that this will not be a drawn-out affair. While it is unclear whether he chose to do so voluntarily or not, Kwoyelo stood for the entire four hours of his court date yesterday. He may have to stand for many, many more hours to come.

I will leave readers with this, the oddly celebratory scene, outside the High Court in Gulu, after Kwoyelo entered the court to await his hearing:

Note: an earlier version of this post incorrectly stated that Kwoyelo has twice applied for amnesty. He has only applied once.