Uganda’s first ever war crimes trial could start before the end of the year, IWPR understands, despite uncertainty over new legislation intended to make such prosecutions possible.
The country’s director of public prosecutions, Richard Butera told IWPR that his department is preparing to refer the case of Thomas Kwoyelo - a former Lord’s Resistence Army, LRA, commander, presently in custody in Gulu - to the newly-established war crimes division of the High Court.
If Kwoyelo’s trial goes ahead, it will represent the first time that an ICC situation country has been in a position to try its own war criminals.
Kwoyelo has been in a Gulu jail since he was captured in March 2009, charged with 12 counts of kidnap with intent to murder. But his case has been unable to proceed to trial because the regional court has no jurisdiction over capital offences.
Kwoyelo has not even been assigned a lawyer yet, although Butera says that this will change as soon as his trial begins at the war crimes court.
Although Butera declined to give a precise indication of when the referral might take place, a source close to him suggested the trial could start before the end of the year.
Since the ICC does not have the resources to try all suspected war criminals, its mandate is to prosecute only those deemed most responsible for atrocities, with the remainder being tried by national courts, provided that the local judiciary is capable of doing this.
The ICC has so far indicted five members of the LRA for war crimes – none of whom have so far been apprehended – and is unlikely to open any more cases in the country.
The war crimes division of the High Court got a green-light to start operating just ahead of the recent ICC review conference n Kampala, when Ugandan president Yoweri Museveni announced that he had put his signature to the controversial ICC bill – which enables the Ugandan judiciary to try war crimes – adopted by parliament on March 10.
Mirjam Blaak, Uganda’s ambassador to the ICC, said that she was very happy that Museveni had at last signed the bill, which has been in the pipeline for the past six years.
“It was important to have the bill signed before the review conference took place,” she said. “They wouldn’t have cancelled the review conference if it hadn’t been, but it was an understanding that we would.”
However, there has been much confusion over the ICC bill, with many people, even those close to the government, being uncertain about whether the president had actually signed it.
Lindah Nabusay, Museveni’s deputy spokeswoman, said that she was not aware that the president had put his pen to the legislation.
Nearly two months after being reportedly signed by Museveni, few people have been able to get hold of a copy of the ICC bill.
David Donat Cattin, director of the international law and human rights programme at Parliamentarians for Global Action, has been unable to obtain a copy of the legislation, despite his best efforts.
“It is a bit surprising that it is not yet available, especially because it was adopted unanimously in parliament,” he said.
Blaak explained the delay by claiming that the government needed time to incorporate last-minute changes that were made, and that it would be published “very soon”.
But the apparent secrecy surrounding the ICC bill gives some indication of how difficult it has been to push the new legislation through parliament.
The bill was first tabled as far back as 2004, but Blaak says that it was pushed to one side while peace talks between the LRA and the government were taking place.
When it was finally presented to parliament in 2006, two elements of the new law proved particularly divisive: an apparent reference to the death penalty, prohibited by the ICC, and an explicit clause protecting a serving president from prosecution.
“The Ugandan constitution also gives wide immunity to a serving president, but it would have been disgraceful to have put this in black and white within the ICC bill,” said Cattin. “It would have sent out quite the wrong message to the international community and we couldn’t have lived with that.”
Blaak says that, in the latest version signed by the president, both elements have been dropped.
Akiki Keeza, head of the new war crimes division of the High Court, says that now that the ICC bill has been signed, the Hague-based court should get behind Uganda’s efforts to try war criminals.
“It is the duty of [ICC] member states to put in place mechanisms to try people who have commited attrocities,” said Keeza. “Before the [ICC review] conference, the president of the ICC visited us here and did not express any objections to what we are doing. The ICC have a responsibility to support us.”
For those in northern Uganda, who have suffered greatly during the years of the LRA insurgency, the question of whether the war crimes division of the High Court is the best avenue for justice remains open.
Emmanuel Mwaka Lutukumoi, spokesman for the opposition Democratic Party, says rather than trying war crimes suspects in Kampala, traditional justice mechanisms, such as mato oput, should be employed.
This system has been used by Acholi clans for generations to settle disputes, and involves victims sharing a bitter drink made from the mato oput tree in a spirit of reconcilliation and forgiveness.
Another point of contention is the question of whether the government will be able to provide reparations for the victims of those tried by the Ugandan justice system.
The ICC’s Trust Fund for Victims can issue compensation in connection with trials that are currently ongoing, but no similar provisions have been made under the ICC bill.
Milly Arao is a disabled woman in Lira district, who has sought compensation for injuries she sustained in an LRA raid on the Barlonyo internally displaced people’s camp in the north of the country. She says that the rebels massacred more than 300 civillians, including ten of her relatives.
“We are always marginalised and no one helps us. We are looked at as a people that are useless,” she said.
According to recent data from the International Bar Association, less than a third of the 111 signatories to the Rome Statute have satisfactorily adopted ICC implementing legislation.
A further 20 per cent of member states have partially-adopted ICC laws, while 50 per cent have not adopted any implementing legislation at all.
Bill Oketch is an IWPR-trained reporter. Blake Evans-Pritchard, IWPR Africa Editor, contributed to this report.
This article is part of a series of articles produced by IWPR-trained reporters to coincide with the ICC review conference, held in Kampala between May 31 and June 11. This series aims to go beyond the negotiations that took place in Kampala, assessing what the issues raised during the conference mean to those communities that the ICC is supposed to serve.