Thomas Kwoyelo when he was still with the LRA (Monitor)
Last summer Justice in Conflict regularly reported on the trial of former LRA Commander Thomas Kwoyelo. After being arrested by the Uganda People’s Defence Forces (UPDF) in the Democratic Republic of Congo (DRC) in 2009, the Ugandan Department of Public Prosecutions (DPP) decided to charge Kwoyelo with war crimes under the Geneva Conventions and with crimes under national law.
The trial received considerable national and international attention as it was the first case of the newly created International Crimes Division (ICD) of the Ugandan High Court. The ICD had been founded in reaction to questions of accountability that arose during the Juba peace talks between the Government of Uganda (GoU) and the LRA. Meanwhile the Ugandan Parliament has passed the International Criminal Court (ICC) Act, which allows the ICD to prosecute Rome Statute crimes on the domestic level.
In a nutshell, the ICD referred the Kwoyelo case to the Constitutional Court when Kwoyelo’s defence lawyers protested that Kwoyelo had been denied amnesty under the Amnesty Act. In their view, this constituted a violation of equal treatment under the Ugandan Constitution. The Constitutional Court decided in late September 2011 that Kwoyelo should be eligible for amnesty and ordered the ICD to cease the case against him.
Even though the case was stopped, Kwoyelo remained in detention. He then decided to sue the GoU for illegal detention and petitioned the Ugandan High Court for amnesty on 23rd of November 2011. The High Court indeed ruled that Thomas Kwoyelo should be given amnesty and be set free. The Department of Public Prosecutions and the Amnesty Commission are the two competent institutions in this case and decided to meet to consult the Kwoyelo case after the High Court ruling. In early February the Department of Public Prosecutions again denied amnesty to Thomas Kwoyelo, citing that there can be no amnesty for charges of war crimes. Thomas Kwoyelo thus remains imprisoned in Luzira Prison in Kampala to date.
The judges of the ICD in charge of the Kwoyelo case (Justice and Reconciliation Project)
There are several conclusions that can be drawn out of the way the first domestic war crimes trial in Uganda developed. First and foremost, the ongoing back and forth concerning Thomas Kwoyelo’s amnesty again underlines that Uganda is at the crossroads with transitional justice. The actions of the DPP hint at a re-orientation towards more accountability and less amnesty in the future. The DPP has made that clear by repeatedly denying amnesty to Kwoyelo, despite court orders, and by announcing that it has prepared additional cases against former LRA rebels that it will pursue should Kwoyelo be found guilty. As far as I am aware there is no explicit government position on how amnesty and prosecution should relate to each other in the future, and the lack of clarity might well spark fears and unrest among LRA returnees as I have described in a piece last summer.
Secondly, the first case of the ICD has arguably also shown that demands for more positive complementarity, meaning more domestic trials, in ICC cases should be voiced more carefully. Creating institutions that are legally able to try ICC cases in the situation countries is an important goal. I have frequently argued for more positive complementarity at the ICC myself.
Yet just creating these institutions is not enough. One has to ensure that appropriate laws are in place and that the court is qualified to deal with international war crimes cases. There are several examples of how things went wrong in this context at the ICD. In general the GoU was seemingly in a hurry to demonstrate that the ICD was up and running by presenting a first case and preferably a conviction. Some sources have accused the GoU of presenting the ICD with a pre-determined budget and timeline for a ruling in the Kwoyelo case.
Thomas Kwoyelo before the ICD in Gulu
It is important to acknowledge that the ICD is doing something that has never been done anywhere else in Africa. Creating a High Court Division competent of ruling on Rome Statute Crimes is a novel development. The judges include well qualified experts with experience in international criminal law and most of them have attended best-practice training at the ICC in The Hague according to the ICD Registry.
Despite the ICD Project being generally commendable, there are some other problems that emerged from the rushed effort to try a first case at the ICD as quickly as possible. The case before the ICD showed that witness protection laws in Uganda are inadequate. The judges are only able to order ad-hoc measures to protect witnesses if there are clear signs for danger. The Justice Law and Order Sector (JLOS) of the Ugandan Government is working on laws to alleviate this problem, but results are not expected before mid-2012.
Last, but not least, the ICD is so far working with guiding principles instead of full rules of procedure. The guiding principles are open for best practice approaches from other cases of international criminal law, which makes them highly flexible. Yet, a lack of full rules of procedures may lead to problems of fair trial or delays in some cases. All in all the Kwoyelo trial has proven that the ICD is a politically independent institution that is to be taken seriously. Still, it has also shown the remaining weaknesses in the systems and has highlighted the danger of cases becoming politicized. The fact that Kwoyelo is still in jail despite numerous court rulings seems to be an indicator that the DPP was trying to make a political point by indicting Kwoyelo.
Justice in Conflict 
I find it strange that the article waxes lyrical about the ICC, international justice and the progress Uganda has purportedly made, but then fails to address or discuss what is really the key issue right now. By now, Ugandan courts have ruled repeatedly that a prisoner in detention should be freed, and Uganda’s prosecutorial services have simply ignored it. Think about it — in a democratic country that respects the rule of law this is unthinkable. When a court rules that a prisoner is to be freed, it matters little what the prosecution thinks. They have lost their case. This is the news, not the aspirational claims your article is replete with. Kwoyelo’s continued detention is unjustifiable, no matter what you think of the ICC, the ICD and the promise of international justice.
In that vein, one of your conclusions is simply ludicrous: “The actions of the DPP hint at a re-orientation towards more accountability and less amnesty in the future.”
No, the actions of the DPP smack of complete lawlessness and impunity. Again, in a democratic country, the prosecution is not the institution that gets to decide about ‘accountability.’ There’s a thing called the Judiciary for that. Only if we contemplate these things — as your article does — on some abstract plain of ‘international justice’ do we fail to see what is now the real issue in this case.
Dear Maya,
Thanks for your comment. I completely agree with you that the fact that Thomas Kwoyelo has not been freed despite several court rulings is a serious issue that gives reasons to doubt the rule of law in Uganda. Even beyond the concrete case of Thomas Kwoyelo there are a lot of things amiss in Uganda regarding questions of democracy and the rule of law. I’ll just name the crackdowns against the Walk to Work protest, illegal evictions in northern Uganda, and interference of security forces with High Court rulings in the past as some examples. But this blog and indeed this post is not about the state of the rule of law or democracy in Uganda. It observes the Kwoyelo Trial from a perspective of international criminal law and justice. That is the reason why the post focuses on the connections between the ICD, transitional justice and international criminal law.
I would also like to point out that my conclusion that “The actions of the DPP hint at a re-orientation towards more accountability and less amnesty in the future.” is not simply ludicrous. Unfortunately trials of international crimes and politics are still deeply intervowen in the world we are living in today. How war crimes and crimes against humanity are dealt with should be decided by the judiciary on the basis of laws, as you rightly point out. Institutions that do not have a legitimate stake in it should not interfere. Sadly, this is not the case in many countries where these crimes take place. In Uganda we can see how the way forward for the transitional justice concept in the country has become an object of political bargaining. The DPP should respect the judiciary, but de facto it seems like they are following their own political agenda trying to promote accountability over the amnesty approach followed in the past. In how far this approach is backed by the Government of Uganda remains unclear.
So whether we like it or not, as long as politics do play a role in war crimes trials it is a perfectly valid approach to discuss the politics surrounding these trials. I explicitly stated that the Kwoyelo trial “has highlighted the danger of cases becoming politicized.” Maybe I should have pointed out more explicitly that making court rulings the object of politics goes against the rule of law, but I thought the article made that clear.
Thanks for the comment, Patrick. My initial comment was too strongly worded — your article certainly raises important questions, and this is an important discussion to have.
That being said, I continue to believe that you miss what is really at issue here (at least at this point in time). Trying to dissociate transitional justice and international justice from democracy and the rule of law is a strange way to approach my criticism. And I don’t think the word ‘politics’ is a silver bullet that gets you out of this bind either. What’s at issue right now is Uganda’s disregard for the rule of law, not greater accountability for international crimes. You are taking some strange, long view of international justice, completely dissociated from on-the-ground realities. If the Ugandan government continues to break the law, violates basic fair trial standards, and reneges on its promises, this has absolutely no precedential value for the greater topic of ‘international justice.’ It just means a travesty is taking place in Uganda, and it should be addressed as such. Your article, as I’ve said before, talks about these abstract notions of justice and accountability, as if we were talking about some millennial project inevitably leading to a better future.
This brings me to the other problem inherent in your article (and this is probably why you do not seriously grapple with the rule-of-law problem I am trying to highlight). You assume that Kwoyelo should indeed be prosecuted and convicted, and that is the best way forward for Uganda. International justice will have run its course, and we can move on to the next trial (and the next conviction). But hold on for a second. There is a reason why the Ugandan courts have ordered his release. If you focused a little more on why the courts decided this case should not be prosecuted, I am pretty sure this would allow you to paint a more complete, and especially a more nuanced, picture of what is at stake in the international justice debate. You allude to it in the paragraph on positive complementarity — this trial is an illustration of why imposing positive complementarity at all costs can be a mistake, and the prosecution’s lawless behavior is bringing the complex issue of peace v. justice to the fore (and making the mistake even more embarrassing).
I think it’s absolutely fine that you’ve chosen to talk about politics and international justice. But my point is that you are taking a very narrow and one-sided view of what the Kwoyelo case means for these topics. Your trying to dissociate international justice from the rule of law and democracy is an illustration of that. There’s a lot more to international justice than just trials and convictions, and I think it would’ve been useful to address that in greater detail.
Dear Maya, I think we do agree on the core questions here. Again, I think you are right with the arguments you bring forward and there are many valid reasons why the rule of law deficencies in the Kwoyelo Case should receive more attention both within Uganda and on an international level.
Yet, the focus of this series of articles has so far been to describe the trial from a perspective of international criminal justice and transitional justice. My focus has always been on the conflicting approaches of passing an Amnesty Act and then deciding to indict former rebels for war crimes despite the Amnesty Act still being in force. The reason why Kwoyelo was not been convicted is simply that he is entitled to the amnesty, and there is no legal way to bar him from that right without violating constitutional rules of equal treatment. Legally the case is thus very clear, and it is fair to say that the Ugandan courts all in all did a good job (which unfortunately cannot be said about the DPP). My interest in the case was to highlight the dilemma between having an Amnesty Act and pursuing trials at the same time. In doing so, I do not think I dissociated rule of law from transitional justice, as the article explicitly names the fair trial issues that have come up during the Kwoyelo Trial.
That said, I do not assume Thomas Kwoyelo should be prosecuted. The Amnesty Act was passed in 2000 with massive local support from the war affected areas in northern Uganda. It seems that the majority of the people living in these areas prefer to forgive the former rebels in order to be able to live in peace. Research suggests on the other hand that direct victims of the LRA, those who were mutilated and/or tortured, see things a bit differently. In private they are supportive of trying those responsible for these crimes. This makes the question whether Kwoyelo should be tried or not a very complex question replete with political and moral dilemmas. I do not believe in a global project of international criminal justice that will one day deliver us from all international crimes. Each and every conflict in which those crimes have taken place is very complex and informed decisions on a case to case basis have to be taken. Indeed, I have argued in past articles on the Kwoyelo trial that Uganda has so far done pretty well with the amnesty and I have explicitly pointed out how undermining the amnesty through trials might be a danger for social peace in northern Uganda.
Finally, I think it is very useful to have this discussion here as it brings up important issues that should have been addressed more directly in the original post. Thanks for that.
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