Killer laughs last

By Haggai Matsiko

Lawyers sneak ex-LRA commander Kwoyelo past conviction because of problematic legal framework and poor structure of war crimes division

When the UPDF arrested Thomas Kwoyelo, one of the commanders of the notorious Lord’s Resistance Army (LRA) rebels from the Garamba forests of DR Congo in March 2009, they did not take him to prison; they detained him at a safe house in Wakiso district, near the capital, Kampala.

Over the three months he was quizzed by intelligence officials, one question came up again and again: “Why did you kill Alfred Bongomin?”

Bongomin was an NRM LC3 chairman of Pabo village in northern Uganda at a time when supporting President Yoweri Museveni was equivalent to signing your own death sentence. People like Bongomin were, therefore, highly prized by the ruling NRM. Then on February 12, 2002, he was beaten and burnt to death by unknown assailants.

Although police arrested opposition MPs Reagan Okumu and Michael Ocula who hail from the region and charged them with the murder, they were later acquitted.

But not before one of the witnesses, David Okumu Okoya, a former rebel, fingered two rebels for the murder. Okoya told court that Kwoyelo and another LRA rebel called Ocira told him at his base in Pabo, that they had killed Bongomin.

Kwoyelo is a short stocky man with tinny blood-shot eyes and a snarly faux smile who has since grown a mane of long dark hair that he likes to oil neatly and comb straight backwards during court appearances. His shirts and pants are usually so carefully pressed it is easy to see why he was so precise on the field. Abducted by the rebels of Joseph Kony when he was only 15, Kwoyelo perfected the art of killing, rose to the rank of colonel in the LRA and served as the rag-tag army’s director of operations. He is said to have been extremely lethal; commanding many attacks on innocent civilians, killing and abducting many and destroying their homes.

Now, however, Kwoyelo lawyers say the atrocities he allegedly committed should not be an issue because under one of Uganda’s most problematic legal shenanigans, he, like all for LRA rebels is entitled to an amnesty.

About 26,000 ex-rebels, including Kwoyelo’s senior’s —Brig. Kenneth Banya, Brig. Sam Kolo Otto, Onen Kamdulu, as well as Lt Col. Opio Makasi— have been granted amnesty.

A notorious ex-rebel Lt. Col. Charles Arop, also a former director of operations LRA, was granted amnesty in Nov.2009 much later after the arrest of Kwoyelo and inception of the International Crimes Division (ICD) of the High Court.

Arop allegedly led “Christmas Massacres” part of a series of attacks in 2008 and 2009 resulting in the deaths of at least 620 civilians and the abduction of more than 160 children in DRC.

A state lawyer that has worked on the case since 2008 said that some of these senior LRA officials that were granted amnesty had cut deals with the UPDF and the majority had surrendered peacefully unlike Kwoyelo.

“Kwoyelo always operated in his village,” the lawyer said, “there are people whose homes he attacked, burnt their houses, slaughtered their goats in their face and left them to suffer. They are there and vividly remember what he did.”

Why try only Kwoyelo?

Kwoyelo is the only ex-LRA rebel before the International Crimes Division (ICD) of the High Court. Located in Gulu, the epicenter of the 20-year long armed rebellion against Museveni’s government, the court was set up to try LRA commanders. But its more nefarious intention was to appease Kony and his band of killers and lure them from the battlefield at the height negotiations dubbed the “Juba Peace Talks” of 2006-2008.  Earlier in October 2005, the International Criminal Court (ICC) in The Hague had indicted Kony and four of his commanders for alleged war crimes and crimes against humanity.

During the Juba talks, Kony’s emissaries insisted that he would only quit fighting if the indictment were quashed. When the ICC refused to budge, the Ugandan government concocted the ICD as a means of skirting indictments by claiming it could try the rebels at home and not in the ICC. What appeared like a neat maneuver has turned into an ugly nightmare for the government and Kwoyelo’s victims as he is on the threshold of walking free.

The ICD was set up to try genocide, crimes against humanity, war crimes, and any other international crime defined in the 1964 Geneva Conventions Act, the Penal Code Act, and the 2010 International Criminal Court Act (ICCA). But if its first test, the Kwoyelo case, is a harbinger, the court has tough times ahead.

The charges

The Director of Public Prosecutions, Richard Butera, seemingly under local and international pressure, experts say, has tried all possible legal gymnastics to try Kwoyelo but the ex-rebel remains a slippery fish.

The international community viewed the Kwoyelo trial as a model for Africa. But most importantly, trial—Uganda’s first war crimes trial—was seen by many as a harbinger of justice.

In August 2010 Butera’s team charged the ex-rebel leader with 12 counts of violations of Uganda’s 1964 Geneva Conventions Act. Realising that the defence team could punch a hole in the case since war crimes under the act relate to international armed conflicts, on July 11, 2011, prosecution padded the charge sheet with 53 alternative counts of crimes under the 2010 ICC act and Uganda’s penal code including murder, attempted murder, kidnapping to which Kwoyelo pleaded not guilty.

Matters started to unravel when Kwoyelo’s defense team requested assistance from the state to support the preparation of their case, namely funds to secure two to three professional investigators, two researchers, and one consultant but these funds were not availed.

They argued that for a fair trial, the principle of equality of arms requires each party (prosecution and defence) to be given the same resources such that none of the parties is at a substantial disadvantage. The government refused to provide the funding.

But Kwoyelo’s defense was undeterred. One of the lawyers on Kwoyelo’s team intimated to The Independent that they would have gone on with the trial because such a case is good for the profession but it requires a lot of resources.

“When we realized that we were spending our own money, we decided to challenge the trial and it worked,” the lawyer said.

Instead of attempting to prove Kwoyelo’s innocence, the team concentrated on proving his entitlement to amnesty under the law.

The case was referred to the Constitutional Court and in August last year it ruled that Kwoyelo, like other ex-rebels, deserves amnesty. The court ordered the ICD to cease the trial and to immediately release Kwoyelo.

The government continues to detain Kwoyelo, but on Jan.25, Justice Vincent Zehurikize of the High Court in Kampala ordered DPP and the Amnesty Commission to issue an amnesty certificate to Kwoyelo.

The case is before the Supreme Court and the prosecution hopes it can overturn the Constitutional ruling. For now, the Supreme Court lacks quorum and cannot hear the appeal.

The Kwoyelo case has been a big blow because with the ruling, experts say, no LRA rebel can ever be tried because of the Amnesty law.

The law provides amnesty for any rebel who “renounces and abandons involvement in the war or armed rebellion.”

It is an ironical twist because, according to one of Kwoyelo’s lawyers, Kwoyelo, who was captured on the battlefield, did not even want amnesty. “It took a lot of convincing for him to accept it,” the lawyer told The Independent.

A 2012 report by Human Rights Watch entitled Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division, states that the amnesty law is part of a “problematic legal framework” that stands in the way of war crime trials in Uganda.

“Amnesties for genocide, war crimes, and crimes against humanity are inconsistent with international law and practice,” it states, “which provide that such crimes should be prosecuted.”

Punishment or Forgiveness

But to Lino Owor Ogora, the Justice & Reconciliation Project, Gulu, says critics of amnesty miss the point.

He notes that if these critics had lived in northern Uganda during the period of the insurgency, they would understand and appreciate the notion of ‘peace first, justice later’ and amnesty.

Ogora argues that the offer of amnesty was a crucial factor in ending the conflict and the reason northern Ugandans, led by religious and traditional leaders were at the forefront of advocating for it.

But Ogora’s is not looking at the past only.

“With the LRA still very much alive and committing atrocities in Central African Republic and Southern Sudan, the amnesty law is still needed,” he adds.

He also argues that in a situational survey conducted by the Justice and Reconciliation Project (JRP) in December 2011 in Acholi region, more than 90 per cent of the respondents believed that amnesty was still relevant.

However, according to Avocats Sans Frontières (ASF) or Lawyers without Borders, justice should not be sacrificed at the altar of forgiveness.

“As we call for forgiveness, restitution and reconciliation, let us not forget that fairness and justice also deserve to play their role as Uganda continues to fight impunity,” Severine Moisy, the ASF Kampala Head of Mission says, “Justice is an important part of building sustainable peace.”

ASF adds that the Princeton Principles on Universal Jurisdiction note that blanket amnesties are incompatible with a state’s obligation to prevent impunity. This is why for ASF, those who are “most responsible” for committing grave crimes should be tried.

Observers say the need to see justice done is critical as people have not fully accepted ex-rebels that were amnestied.

A top official from northern Uganda told this reporter of an incident in northern Uganda where Banya (another ex-rebel who was granted amnesty) was in a bank in Gulu and attempted to jump the queue and was booed.

We still remember how you killed our children and you shouldn’t be here now pretending nothing happened, someone reportedly shouted at him.

To address such situations, ASF proposes that government puts in place other accountability measures like an effective national truth and reconciliation mechanism which will supplement the amnesty law by giving the victims of the LRA conflict the opportunity to have a proper account of the acts committed by those who have been granted amnesty and therefore foster forgiveness and reconciliation from an informed point of view.

Such initiatives have been adopted by other post-conflict countries such as Sierra Leone (Truth and Reconciliation Commission Act 2000).

Other obstacles

Apart from the amnesty law, the HRW report also notes that there is a problem with trying Kwoyelo under the penal code.  “Prosecutions for ordinary crimes are preferable to impunity, but they can constrain the extent to which the gravity and scope of crimes, and responsibility for them, can be addressed,” it states.

The report also criticises the ICC Act because it cannot be used to try crimes committed before its adoption in 2010 yet most of the war crimes were committed before that.

According to the report, there is no reason under international law that the act cannot be used to prosecute crimes that predate its enactment.

This is because, the report states, the principle of non-retroactivity [prohibits criminalizing acts committed prior to the entry into force of a rule banning such conduct as a crime] is not violated where the conduct to be prosecuted was already a crime under international law, and the national law is not creating a new offense, but is establishing jurisdiction to try the offense.

A question of fairness

HRW also touches on one of the core issues that were at the heart of the collapse of the Kwoyelo trial— lack of assistance to defense counsel—which it says poses serious concerns to assuring fair trial rights.

Most importantly, HRW raises the concern that UPDF officials have not been investigated and considered for prosecution before the ICD just like the LRA. The report says that this raises issues of victor justice and lack of impartiality.

But to one of the prosecution lawyers, right from the negotiations for the Juba peace talks, it was agreed that since the UPDF has its internal court system—court martial—it would be used to discipline the UPDF officials.

One of Kwoyelo’s defence lawyers says that targeting only the LRA, discredits the court and is inclined to make people suspicious of the court.

To him, this is just part of the problem. He says that the structure of the ICD makes it incapable of delivering a fair trial.

For those arguing reconciliation, the case of Kwoyelo, re-affirms the fact that justice in northern Uganda may not necessarily boil down to dragging ex-LRA commanders to court. But their critics insist that to fight impunity the government has to try these commanders.