The Kwoyelo trial: A pre-emptive attack on truth?

By Haggai Matsiko

Experts divided over the value in trying former LRA commanders locally

Hours before the ground-breaking trial of Thomas Kyoyelo started in Gulu on July 11, hundreds had gathered outside the newly established International Crimes Division of the Uganda High Court.

They could not find space in the already jam-packed court room. Many murmured in anticipation as they waited to see Kwoyelo, a man who was abducted by the Lord’s Resistance Army (LRA) rebels of Joseph Kony at the age of 15 and rose through its ranks to become one of its most dreaded leaders.

In the crowd were former villagemates from Acut Cama, who remembered him a passionate dancer of ayije – a traditional Acholi dance, and former schoolmates from Pawel Langeta Primary School who describe him as a jolly person nicknamed scooter because of his athletic abilities.

Others had only heard of Kwoyelo because of his alleged deadly operations that claimed their loved ones and could not hold back their fury. A group of people reportedly mobbed Kwoyelo’s relatives to ask about the life of the former rebel commander.

Kwoyelo finally arrived in a convoy of four vehicles with one truck full of heavily armed police officers and another with prison officers. A marching brass band completed the celebratory mood around the court premises. But leading area politician, Norbert Mao who is a former Gulu district LCV chairman would tell me later that it was more out of curiosity than celebratory.

Some, like Mary Ekol from Dokolo, had travelled a long way expecting to see a dark giant, fierce-looking with blood shot eyes. She says she was shocked to see a tiny lad-like man, possibly no more than 50Kgs in weight and shorter than five inches, clad in a light green faded shirt.

Kwoyelo is a former director of operations in the LRA rebel group. He was captured in March 2009 by the Uganda People’s Defence Forces (UPDF) as they sought to flush the rebels out of the thick Garamba forests in the neighbouring Democratic Republic of Congo’s – during the fierce Operation Lightening Thunder. The LRA rebels had escaped to Garamba after their leader, Kony, refused to conclude the 2006-2008 Juba Peace Talks to end his deadly machinations against civilians. Soon after, Kony murdered some of his commanders like Vicent Otti whom he accused of devoting himself to the peace talks and forsaking the cause.

To some, Kwoyelo’s trial is a harbinger of justice to thousands that were tortured and internally displaced for over 10 years in two decades of war between the Kony rebels and the government of Uganda. They hope it will bring relief to victims.

They are uncomfortable that Kwoyelo is being tried and in Gulu – a few kilometres from his village of Acut Cama, Pabbo Sub-county in Amuru district. They fear that what they call “the ghost of Kony” still lingers in the hearts of victims. Among them are those who say that, because of the nature of Kony’s operations (abducting children and forcing them to murder their parents and burn down their villages), the trial could polarise the community, pitting father against son in the region that is still grappling with an intricate reconciliation after being ravaged by East Africa’s fiercest of rebellions.

But Mao, the Democratic Party President General who was also part of the efforts to end the war, say the trial is “a pre-emptive attack on the truth and national reconciliation process of the country.”

Mao is convinced that the trial is the government’s strategy to pre-empt an ICC indictment. “We think this is to show that Uganda has the capacity to try its war crimes criminals,” he says. “But this is a double aged sword, the trial puts Museveni and his commanders like Tinyefuza and their operation north. We remember how Brig. Charles Otema killed Peter Oloya (known as Yumbe) when they raided Gulu prison in 2002. In fact this trial has potential to re-awaken debate on genocide against the Acholi.”

Mao says genocide is not only judged against the intention.

“Even the effect matters and no doubt putting those people in concentration camps for over 10 years had a genocidal effect, he says.

Uganda set up the International Crimes Division of the High court in Gulu in the wake of the Juba Peace talks. At the time Kony had indicated that he would not sign the peace agreement unless the ICC arrest warrant against him was dropped. The ICD was viewed as an institution that could skirt the need to bring LRA leaders to the ICC. In the end, Kony fled to Garamba without signing the agreements.

The government, however, continued with establishing the court that now has Kwoyelo as its first defendant. The division has the authority 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).

The Director of Public Prosecutions, Richard Butera says that the decision to try Kwoyelo under the Geneva conventions Act was reached because the ICC Act 2010 has limitations as it cannot be applied to cases committed before its enactment.

Kwoyelo has pleaded not guilty to the 53 charges that the prosecutor preferred against him. The charges include murder, kidnap with intent to murder, attempted murder, among others contrary to the Geneva Convention 1964 and the Uganda Penal Code Act. Legal experts say that prosecution preferred all these charges against him in order to guarantee that he is convicted on at least some counts, as it might be difficult to prove even half of the 53.

The ICD heard that Kwoyelo committed the crimes from 1993 to 2005 mainly in Pabo Sub-County in Amuru district. On July 25 the three Judges leading the trial – Justices Akiiki Kiiza, Elizabeth Ibanda Nahamya and Alfonse Owiny Dolo – will hear the Kwoyelo’s defense.

Kwoyelo’s defence hinges on the state’s refusal to apply Uganda’s Amnesty Law to Kwoyelo. According to Uganda Amnesty Commission, Kwoyelo applied for amnesty but the DPP turned down his application. Yet over 12,000 suspects including Kwoyelo’s seniors like Brig. Kenneth Banya and Brigadier Sam Kolo Otto, Onen Kamdulu, as well as Lt Col. Opio Makasi, have all been granted amnesty.

Santos Ongom, the Project Manager of Grassroots for Reconciliation Group, an organisation that aims at re-uniting the victims of the war and former combatants says that the people he has been engaging in the organisation’s reconciliation programmes are not comfortable with the trial. He says they prefer the Acholi traditional court system, Mato Oput, instead of the ICD.

“Kwoyelo is not among the top five LRA commanders; the government granted his seniors amnesty, people are wondering why is the government so bent on trying Kwoyelo,” Ongom said.

Kwoyelo’s lawyer Caleb Alaka is presenting the same argument against the prosecution on July 25. “Since the brigadiers were granted amnesty, the denial by the directorate of public prosecutions infringes on his constitutional rights to fair treatment,” he contends.

Mao adds that since Kwoyelo was an abductee, it is clear that he was operating under “superior orders” and that his “degree of responsibility” could not have been graver than that of the brigadiers. “But above all, Kwoyelo was a child that should have been protected by the government,” Mao says.

Experts say that trying Kwoyelo is likely to re-awaken demands by the international community to have all the amnestied senior officials tried too. But above all they argue that if Kwoyelo’s case is different from that of his amnestied seniors and the DPP feels he must be prosecuted, the reasons for denying him amnesty have to be made clear to him.

The DPP says that this is exactly what he is set to do. “They say he should be granted amnesty, we are convinced otherwise. Let them wait for our evidence,” Butera says. “That there are many suspects out there that have not been tried does it make it a defense for those who have been tried.”

A legal expert working with the government intimated to The Independent that as a colonel in the LRA, Kwoyelo allegedly commanded an attack on innocent civilians in northern Uganda in which over 20 people were killed, ordered his forces to inhumanly assault civilians, destroyed houses and property and took people hostage which is evidence against Kwoyelo.

It is reported that in one of his operations, Kwoyelo attacked Kony’s village, causing untold misery something that irked his boss, Kony which the prosecution could forward as evidence that Kwoyelo sometimes acted on his intuition and not “superior orders.” But all this will weigh on the prosecution to prove.

“Besides there have been many international trials of war criminals that have set precedents where the superior orders defence has been challenged.” the lawyer said. “But we also have people here who escaped from Kony’s camp, why did Kwoyelo have to wait until he was captured?” In fact, Kwoyelo claims that before he was captured, he had been detained by Kony for several months.

“These arguments are being presented by NGO’s, politicians – people who did not directly experience the horrors of the Kony war- but the people who suffered the wrath of Kony disagree,” he says. “Go and interview former Aboke girls, you will have a different picture.”

Principal Judge, Yorokamu Bamwine, who presided over the trial in Gulu on July 11 emphasised that the court has capacity to try all cases of war crimes and crimes against humanity, including suspects like Joseph Kony, Okot Odhiambo and Dominic Ongwen, presently wanted by the ICC.

The ICC has, in fact, announced that they are considering an application by the government to have the suspects tried locally once captured. If that happens, many hope that the trials will bring relief to a butchered community and not be what Mao calls pre-emptive attacks on justice.