Friday, 19 August 2016
On Monday 15 August 2016, the long awaited trial of Colonel Thomas Kwoyelo finally kicked off with a pre-trial hearing presided over by Hon. Justice Susan Okalany, a judge of the High Court of Uganda. The hearing however had to be adjourned because the defense attorneys representing Kwoyelo did not turn up. At the same hearing, the court also appointed two new lawyers on state brief and the prosecution team revealed that they would introduce a new count on sexual and gender based violence. This article presents a narrative of what transpired during the pre-trial hearing and a brief analysis of the major decisions taken.
The pre-trial hearing was held at the High Court premises in Gulu town. With the start of the trial having been postponed numerous times before, many people were happy that the trial was finally starting and showed their interest by turning up in large numbers. By 9:00am, the courtroom had been filled up to capacity by representatives of local and international civil society organizations, humanitarian agencies, the press, and members of the public. Also present in the court were victims’ representatives from Pabo and members of Kwoyelo’s family. To cater for the large number of people, the court registry had set up overflow facilities in a second courtroom and a tent erected outside the court buildings. Both these overflow facilities were equipped with television screens and sound speakers so that the public outside the courtroom could easily follow proceedings.
The decision to hold the pre-trial hearing in Gulu was taken in a bid to bring the trial closer to the people and consequently promote victim participation. The ICD registry must be applauded for having taken this decision, because it enabled many people living in the conflict-affected communities to attend. The decision to provide overflow facilities also ensured that all people could follow proceedings easily. The move by the ICD could provide valuable lessons for the International Criminal Court (ICC) which has twice turned overruled requests for insitu hearings in northern Uganda.
At around 9:00am the victims’ lawyers, Henry Komakech Kilama and Jane Magdalene Amooti had arrived. They were shortly followed by the prosecution team led by Charles Kaamuli. Other members of the prosecution team were George William Byansi and Florence Akello. But the defense lawyers were not present.
Kwoyelo was being represented by Caleb Alaka and Francis Onyango who had been his lawyers since 2008. Nicholas Opiyo, a prominent human rights activist and lawyer in Uganda had also joined Kwoyelo’s defense team and was scheduled to appear at the pre-trial hearing.
So when the court finally commenced at about 11:00am, the first issue tackled by the judge was to try and establish the whereabouts of the defense attorneys. After a brief examination conducted by the judge, it turned out that Kwoyelo himself did not know why his lawyers had not turned up in court. The judge therefore ruled that Kwoyelo had until 9:00am the following day to ensure that his lawyers turned up, or else the court would appoint two new lawyers on state brief. Proceedings were then adjourned at 11:30am.
Kwoyelo’s lawyers claim that they did not turn up for the hearing because they were not notified in time in accordance with the rules of procedure of the ICD. Caleb Alaka, the lead counsel, claimed he thought the hearing was to have been held at the Kampala High Court. Nicholas Opiyo, one of Kwoyelo’s other lawyers slammed the manner in which the hearing notice had been served upon them. In a facebook post later that evening, he explained that “a court clerk just served upon me a hearing notice at 16:10 hours for a hearing in Gulu at 9:00 hours! Ridiculous to say the least and intended to achieve the aim they must have wanted in the first place – to hear the case without a proper defense”. In the same post, Mr. Opiyo alleged that from the beginning the court considered the defense lawyers ‘troublesome’ and that the registry sidelined them by not involving them in activities such as community outreach.
The failure by the defense lawyers to turn up raises serious questions regarding legal representation. As an accused person, Kwoyelo is entitled to a proper and competent defense in order to ensure that he gets a fair trial. If the defense lawyers are not receiving the support they need from the court, as demonstrated for example by the failure to give then adequate notice and to involve them in community outreaches, then the trial is bound not to be fair. It points to a need for cooperation by all parties to ensure that the trial proceeds smoothly.
On Tuesday the hearing resumed, and just like the previous day, the courtroom and the overflow facilities were again filled up to capacity by 9:00am. The victims’ lawyers turned up shortly after 9:00am just like they had done the previous day. Shortly after, a lawyer called Charles Dalton Opwonya arrived, claiming he would represent Kwoyelo.
But this time the court could not start immediately because the prosecution was nowhere to be seen. Unconfirmed rumors circulated round the courtroom that they were holed up somewhere in Gulu Town amending the charge sheet. The audience waited patiently until 11:00am when they finally arrived. But it was not until 11:45 that Kwoyelo was led into the dock and the court was then ready to proceed.
When court finally commenced at 11:45, it was apparent that the first matter the court would have to deal with was the absence of the defense lawyers. Mr. Charles Dalton Opwonya introduced himself as the new lawyer defense lawyer. He said he had been contacted by the accused, but requested that the court meets the legal costs. This surprised the judge who said it was the responsibility of the court to appoint lawyers on state brief. She introduced another lawyer present in court called Godfrey Anyuru whom the court intended to appoint. However after asking Kwoyelo if he had been in touch with Mr. Opwonya, the court said they would not object to Kwoyelo’s choice of attorney. The judge actually praised Kwoyelo for having taken steps to get look for new lawyer.
The court therefore appointed Mr. Charles Dalton Opwonya and Godfrey Borris Anyuru as Kwoyelo’s new lawyers on state brief. The judge however ruled that Kwoyelo’s lawyers on private brief were free to rejoin the proceedings at any point in time during the trial.
The decision by the court to ensure Kwoyelo has good legal representation is a step in the right direction can complies with international standards for fair trials. What remains to be seen is if the new lawyers will live up to the expectations people have in them, and avoid any further delays caused by the absence of lawyers.
With the matter of legal representation out of the way, the judge then asked the prosecution to proceed. Mr. Charles Kaamuli, the lead prosecutor informed the court that they intended to introduce a new count on sexual and gender based violence (SGBV), under rule 13 of the ICD rules of procedure.
In support of the prosecution, the victims’ lawyers also told the judge that they also intended to introduce new counts in the future, although they were not explicitly clear about which new counts they intended to introduce.
The defense acknowledged that while amendments could be made at any stage of the trial, it was important to remember that Kwoyelo had been on remand for close to eight years so there was need to specify the timeframe under which the new amendments would be brought. The judge then ruled that the new amendments would be accepted but asked the victims’ counsels to work together with the prosecution team to ensure that all necessary amendments were filed as soon as possible.
The decision to introduce a new count on SGBV is also another point on which the prosecution must be applauded. This is because it is common knowledge that SGBV crimes were committed in northern as a result of many girls being abducted, forced to become wives, and to bear children to rebel commanders. The absence of SGBV crimes in cases involving war crimes and crimes against humanity, for example in the case involving Germain Katanga in the DRC, have always caused outrage among human rights activists. The prosecution has therefore taken a step in the right direction, although they still remain with the burden of proving it.
After the prosecution had made their submission, the judge asked the defense team if they were ready to proceed. Mr. Opwonya responded that they were not ready to proceed because the prosecution had not made full disclosure of the evidence. He requested that disclosure be made along with exhibits. The prosecution responded by agreeing to make disclosure of all evidence required by the defense team including what had already been given to the previous lawyers. The prosecution noted that the new evidence that had not been disclosed included post-mortem reports, medical treatment reports, patient register books, video tapes, photographs, 10 police statements and a certified copy of the Nairobi Peace Agreement between the LRA and the Government of Uganda. The judge ordered the prosecution team to disclose all evidence within two weeks.
The judge also ruled that based on the fact that the new attorneys had just been appointed, the court would grant an adjournment to enable the defense to prepare adequately for the pre-trial. After a short discussion with the defense and prosecution about an appropriate date, the judge ruled that the proceedings would be adjourned to 21 September 2016 and urged both parties to prepare adequately. She also ordered the registrar to serve all parties with a two weeks’ notice of the hearing.
The adjournment of Kwoyelo’s to September again raises serious questions about the ICD’s readiness to conduct the trial expeditiously. Kwoyelo has already been on remand for close to eight years, and the delays are an infringement on his right to a speedy and fair trial. It is also an infringement on the right of victims to justice. It is therefore necessary that no more delays are caused come September 21st 2016.