By Susan Kendi
Adecade after the capture of Lord’s Resistance Army commander Thomas Kwoyelo, his moribund trial at the International Crimes Division of the High Court in Uganda is an object lesson in how to produce failure from the complementarity system under the Rome Statute. In this second part of the three-part Journalists for Justice interview with former Kwoyelo lawyer and Chapter Four Uganda activist Nicholas Opiyo, explores whether the ICD has been employed as a tool for dodging accountability.
JFJ: Has the ICD achieved accountability for any of the crimes in Uganda?
Opiyo:The ICD has been used as a political tool to shield the government of Uganda from external accountability so that each time we make the case about intervention by the ICC, they say “but why should they intervene there is a complementary court, we have a domestic system that can handle all these cases”.
We passed the ICC Act, domesticating the Rome Statute, but have led the continental push for an African mass walkout from the ICC. The ICD has become a political tool in that discussion: President Museveni is glad to show it off, and each time is asked for accountability, he says, “We have domestic mechanisms to handle that.” But I think there was a measure of desperation to return peace to northern Uganda and therefore in the context of the Juba peace talks the court was haphazardly and hurriedly created. I think that for those reasons the court has remained really largely symbolic, in as far as the war in northern Uganda is concerned.
JFJ: How much help has been provided to the ICD to build the capacity to undertake investigations, prosecutions and trial of the former LRA army commanders and UPDF soldiers who committed the atrocities in northern Uganda?
Opiyo:First of all, the government doesn’t admit that the UPDF committed atrocities in northern Uganda. They have at every turn rejected that proposition even in the face of abundant evidence that government soldiers committed atrocities. And so they are unwilling to subject themselves to the ICD. They argue that if there are any crimes, the UPDF has a robust internal justice system that adequately dealt with them and so as a result, no single government soldier has been tried to my knowledge in the courts, before the ICD or before the UPDF military tribunals for crimes committed in northern Uganda.
So the question of accountability on the part of government soldiers remains unresolved. Secondly, the ICD really is a donor’s court, it was created as a result of the peace process in Juba between the LRA and the government of Uganda. The agreement in Juba provided for a special court be created to deal with the aftermath of the conflict. The ICD is as a result of donor pressure and so much effort has been put into the court and perhaps the reason Kwoyelo is being tried is because the court was baying for blood.
The court was looking for its first client to try and the timing of Kwoyelo’s return perhaps was unfortunate. The court was looking for someone to try, to demonstrate that it was working, because there was a political reason for that. The court was looking to him as a guinea pig and that’s why I think they’re stuck with him for nine years now.
In order to deal with concerns about the non-trial of UPDF soldiers the state could make the argument that, “We have local systems that are sufficient to deal with the ICC cases”. But the court has received enormous support from various actors, the UNDP has given the court money, the ICC has trained the judges, the prosecutors, the police, investigators, but there has not been any single training for the defence counsel. So the focus has always been on the court, prosecutions and investigations and so much money has been spent in that regard.
The judges have traveled all over the world, especially to The Hague so many times. In fact I know it on good authority, that most of the evidence before the court was evidence that was obtained in the process of investigating the case of the ICC and so there’s been sharing of information of evidence, of expertise, of resources between the ICC and the ICD.
JFJ: Who funds the ICD?
Opiyo:I cannot quite put my hand on who the main donors are but I know people who have been involved with the ICD. An NGO called Avocats sans Frontières, ASF perhaps has been the longest supporter of the courts, providing training resources for the judges, for the prosecution, for the lawyers. I know that the [United Nations Development Programme] has spent a lot of money on what they call outreach activities for the court, to finance community consultations, and screening of public trials. I know for a fact that the ICC has given material support to the court but beyond that, I have no idea who the other funders of the court are.
JFJ: Apart from the Kwoyelo trial, what other cases are in the ICD relating to the atrocities committed in northern Uganda?
Opiyo:None, none, zero. The Kwoyelo case is the only case from northern Uganda in respect of the LRA war. That’s the only case. The cases before the court now are cases of terrorism, cases of human trafficking and nothing else.
JFJ: Are there any developments on the Kasese situation, in which an estimated 100 people were killed in a siege on the palace of the region’s traditional ruler?
Opiyo:Kasese is particularly tragic. I was personally in Kasese at the time of the killing on 26 November of 2016. I had gone there to attend the wedding of a Ugandan journalist who is working in Kenya, Joy Doreen Biira, and I was physically present and saw what happened in Kasese. We have since been investigating Kasese with a view of putting out an accurate account of what happened and instituting a suit against the state.
As far as we know, there has been absolutely no attempt on the part of the state to investigate the conduct of security forces in Kasese, every attempt to ask for investigations have been stonewalled. The king of the region and his subjects have been charged in a court of law for numerous crimes including treason, murder and over 136 people are facing charges or are waiting trials before the High Court but on the part of government forces zero attempts at any accountability.
In fact police officers, soldiers, who were involved in the attack, their leaders were promoted. The army commandant who led the operation to kill people was promoted to a general, he is now the commandant of the land forces — no accountability. So we hope that by the second anniversary in November we’ll have a report out; we’ll have filed a case in court, [but] the victims are afraid.
The amount of intimidation against them is intense and hopefully by November we’ll have a few people willing to come forward so we can file a suit against the state. We are documenting these cases, hundreds of families lost their loved ones, many more have never seen the bodies of their loved ones who are killed.
JFJ: What would be some of the recommendations of what needs to be done in relation to the ICD, the Kwoyelo trial, the Dominic Ongwen case and the situation in Kasese?
Opiyo:That’s a whole thesis. But one, we must begin to hold to account perpetrators of mass violence and heinous human rights violations regardless of their rank, regardless of their position, whether they were government forces or non-state actors. The absence of accountability or even just investigations on Kasese and indeed of other crimes by government forces across the country is heartbreaking to say the least. I think we must commit to proper transparent public investigations of crimes committed by government forces and non-state actors. Two, when we commit to a justice process, can we at least pretend to have a fair process? Clear rules, clear systems with the interest of pursuing justice not a political end. Can we have a permanent ICD with permanent judges because you can’t keep moving a judge from the commercial division of the High Court, a family division of the High Court, to come to the ICD.
The ICD is a specialized court that needs permanent judges to be able to be consistent, to be able to develop the expertise necessary to try the kind of crimes they’re supposed to try. In the absence of a permanent court we are going to have a weak, perhaps ineffective, court unable to meet the expectations of the people. Those three are enough.
Next: ‘Ugandans are not numb; they are just bottling up anger’ https://www.jfjustice.net/en/complementarity/ugandans-are-not-numb-they-are-only-bottling-up-angera
See also: Ugandan Lawyer lays bare the agony of representing Thomas Kwoyelo https://www.jfjustice.net/en/complementarity/kwoyelo-lawyer-lays-bare-the-agony-of-representing-him-and-why-trial-is-moribund