Can a Court in Uganda Deliver Justice to Victims of the Lord’s Resistance Army?

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Dominic-Ongwen-at-his-confirmation-of-charges-hearing-in-ICC-courtroom-I-on-21-January-2016-©-ICC-CPI
Dominic-Ongwen-at-his-confirmation-of-charges-hearing-in-ICC-courtroom-I-on-21-January-2016-©-ICC-CPI

GULU: Uganda—On a Monday morning in March, dozens of people gathered outside the courthouse in this hot, dusty city in northern Uganda. They sipped passion fruit juice as they prepared to watch legal proceedings projected on a canvas screen, which had been set up in the shade.

Inside and up three flights of stairs, journalists and representatives of various development organizations pressed together on wooden benches in the courtroom. Lawyers, dressed in black robes, made small talk, though their easy laughter clashed with the gravity of the matter at hand. The trial of Thomas Kwoyelo was about to begin.

Kwoyelo, 49, is a former colonel in the Lord’s Resistance Army, or LRA, a brutally violent rebel group founded in northern Uganda in 1987. Headed by notorious warlord Joseph Kony, the LRA formed to topple the government of President Yoweri Museveni, who had come to power the previous year and remains in office today. At the same time, the group’s goals were always more complicated than that: Kony, now 57, has described himself as a spirit medium ordered by God to cleanse Uganda of “corruption, sins and immoral thinking.” He has also espoused a vision of society rooted in the Ten Commandments of the Bible. Hostilities between the LRA and the Ugandan military killed tens of thousands of people and displaced nearly 2 million others.

After fighting with the LRA for 16 years, Kwoyelo was injured in battle in 2009 and taken into custody by Ugandan authorities. Two years later, in 2011, he was charged with 93 counts of war crimes and crimes against humanity, including rape, murder and the recruitment of child soldiers.

A number of procedural and other hurdles delayed the start of the trial, which is supposed to be a major breakthrough for the Ugandan judiciary: It is the first trial of an LRA official and the first war crimes trial of any kind to take place in a Ugandan court.

Even before the case against him gathered momentum, Kwoyelo was familiar to people from this region of Uganda, some of whom recall being abused by him directly. Consy, a 25-year-old woman who sells cabbage for a living, told me recently how LRA fighters abducted her from her home in July 2006, when she was just 12 years old. She was forced to work as a porter for the group, carrying supplies on long journeys through the jungle. Kwoyelo once gave her a bag of bullets to carry.

After some time, Kwoyelo selected a soldier for Consy to marry while in captivity, but not before sexually assaulting her himself. “He would summon us and order for us to be paraded before him, then he would select the one he wanted,” said Consy, whose full name is being withheld to protect her identity. “After using the woman, he would later assign the woman to other soldiers.”

Consy later gave birth to a son she believes is Kwoyelo’s. “It was not easy,” she said. “I did not have breast milk, and yet I had to breastfeed.”

At a time when the ICC’s credibility is in doubt, the trial of Thomas Kwoyelo could provide an alternative model for justice in Uganda and beyond.

For Consy and the other captives, life with the LRA was marked by constant danger. Some women were forced to kill their children—sometimes, Consy said, by smashing them against trees. Consy herself was burned with torches on the order of LRA higher-ups, an act she believes was meant to frighten her into submission. “You can see my leg and both my arms were put on fire as a punishment,” she said. Consy escaped the LRA after nearly two years in captivity, running with her child during fighting with government forces in Kitgum, in northern Uganda.

Years later, when Consy heard that Kwoyelo was going to stand trial, she was eager to testify. The abuses she suffered, however, fall outside the official indictment period, which stretches from 1992 to 2005—the height of LRA activity in Uganda.

The date restriction is not the only way in which victims like Consy have been silenced in the eyes of Ugandan law. Others lack the means to travel to Gulu to participate in the proceedings, or lawyers never consulted them in the first place.

Though it would be unrealistic for all of Kwoyelo’s alleged victims to be given an official role in the trial, the exclusion of those like Consy who have compelling testimony pertaining to his wartime conduct is one of several factors that have cast a cloud over the proceedings for some Ugandans and outside observers. Lawyers for Kwoyelo and for victims also complain that, so far, the Ugandan judiciary has failed to demonstrate it is up to the task of guaranteeing a fair and speedy trial.

Still, prosecutors believe the trial can provide a measure of accountability for the atrocities carried out by the LRA. Just as important, at a time when the credibility of the International Criminal Court in The Hague is more doubtful than ever, especially in Africa, a successful domestic trial for international crimes could provide an alternative model for justice in Uganda and beyond.

Perpetrator, or Victim?

Kony, a former altar boy, had a knack for inspiring devotion on the part of his followers, many of whom were convinced he had mystic powers and could summon and control spirits.

In recent years, he has gained a measure of international notoriety, largely due to the viral video “Kony 2012,” which was produced by the California-based nonprofit organization Invisible Children. The video was rightfully criticized for oversimplifying the Ugandan conflict, and discussion of Kony’s heinous crimes was soon drowned out by complaints about Invisible Children’s work. Overall, international attention to the LRA conflict has been intermittent at best. In 2011, the United States deployed 100 Special Forces officers to aid the local military in an operation to capture or kill Kony. Washington invested close to $800 million in the effort, but withdrew its troops in 2017, claiming that although Kony was still at large, he no longer posed a severe threat.

Uganda has been at peace for more than a decade, but the conflict left deep scars, and efforts to support the country’s recovery have been similarly uneven.

Though Kony set his sights on Museveni, a native of southern Uganda who has long been unpopular in the north, ordinary Ugandans were the LRA’s primary victims. Rebels raided villages and camps for internally displaced people. They cut off the lips, ears and limbs of their victims, leaving behind a trail of gruesome mutilations. And they abducted children to use as soldiers and sex slaves.

Kwoyelo was one of those children, captured as he was walking to school in 1987. He was 17 years old at the time, and he quickly ascended the LRA’s ranks, coordinating attacks on civilians from his base in the Kilak hills of northern Uganda.

The battle in 2009 that led to Kwoyelo’s arrest took place in Ukwa, in the northeastern region of the Democratic Republic of Congo. By that point, the LRA had shifted most of its operations to Congo. The group—which these days is estimated to number just 100 or so fighters, down from thousands at its peak—has also spilled into South Sudan and the Central African Republic, where Kony, still on the run, is widely believed to be located.

Kwoyelo’s lawyers argue that their client should be seen as a victim rather than a perpetrator, noting that he was a minor when he was abducted and claiming that he acted purely out of self-preservation. “The human values that we have here, he doesn’t have them. The laws we have here, he doesn’t know them,” Charles Dalton Opwonya, a member of the defense team, told me. “His values are different. When you kill, then you are a good person. That is what they are taught.”

Opwonya also plans to tell judges that Kwoyelo has already been punished during the decade he has spent in state custody, and as such deserves not just to be freed, but also to be compensated.

Since his 2009 arrest, Kwoyelo has been held in Kampala’s notoriously overcrowded Luzira Prison. At first, officials hoped his trial would begin in 2011, but before that could happen the Constitutional Court granted Kwoyelo amnesty under a 2000 law intended to encourage LRA combatants to renounce the rebellion and return home. The law has resulted in the freeing of more than 12,000 former fighters, some of whom are alleged to have held a higher rank than Kwoyelo.

The state appealed the amnesty decision in Kwoyelo’s case, getting it overturned in 2015 by the Supreme Court, which ruled that Kwoyelo should be tried by the International Crimes Division of the Gulu High Court. Another year passed before the pretrial hearing, at which the charges against Kwoyelo were drawn up and confirmed.

Kwoyelo’s lawyers argue that their client should be seen as a victim who acted purely out of self-preservation.

As this process dragged on, Nicholas Opiyo, a leading human rights defender in Uganda and one of Kwoyelo’s lawyers, grew increasingly disillusioned. Opiyo’s own life has been marred by the LRA conflict. His sister was abducted and spent several years in captivity. Yet despite these personal losses, Opiyo was determined to ensure Kwoyelo benefited from due process.

He now believes that standard has not been met. He says early statements from the prosecution had been so heavily redacted that they were impossible to defend against. He also notes that the charges against Kwoyelo were revised six times. Frustrated, Opiyo left the case in May 2017. “I did not want to lend my name and my reputation to such an unfair process,” he says.

Nevertheless, the proceedings have moved ahead. Last October, Kwoyelo appeared at the courthouse in Gulu to plead not guilty to all 93 charges against him. His voice monotone and his eyes alert, he said again and again, “I did not know about it and I did not do it.” Dressed in an ill-fitting black suit, he appeared awkward and out of place—almost childlike.

In addition to drawing the ire of lawyers, the delays have made it difficult to sustain public interest in the case. “The fact that the court is dragging on the case for so long has made it hard to keep abreast of information,” says Francis Opio, team leader for the Foundation for Justice and Development Initiatives, which provides updates about trial proceedings to residents of areas affected by the conflict and advocates for victim participation.

The court has appointed lawyers to represent approximately 38 victims, though more are free to apply, allowing them to present their concerns to judges directly, separate from the prosecution and defense teams. If Kwoyelo is found guilty and sentenced, his victims will also be able to sue the government for reparations. It’s a potentially effective way to get Ugandans invested in the trial, though Opio says this is undermined by poor communication.

“The victims don’t seem to know what is going on,” Opio says. “You have a trial today, and then tomorrow they will adjourn it for a month, and that creates a gap in the flow of information.”

Domestic Courts vs. the ICC

On March 11, the day Kwoyelo’s trial finally began, the defendant was given a chance to address the court. “I have been severely denied justice,” he said, wearing the same suit he had on in October. “I do not receive information in time, even for this particular session. I have been in prison for 10 years now.”

He followed the statement with an unexpected proposal. “Therefore, with due respect to this court, I request that my case be transferred to the ICC because I want it to be completed.”

Uganda has been a member of the ICC since 2002, when it ratified the Rome Statute, the court’s founding treaty. In 2004, the country became the first to “self-refer” to the ICC, inviting prosecutors to investigate LRA activity in the north of the country. This led to the issuing of arrest warrants in 2005 for Kony and other top LRA commanders, including Dominic Ongwen, whose trial in The Hague began in December 2016 and is still ongoing.

But while Uganda initially cooperated with the court, the relationship has since soured.

It got so bad that following his 2016 presidential inauguration, Museveni dismissed the ICC as useless. Last November, Museveni joined his Tanzanian counterpart, John Magufuli, in criticizing the ICC investigation of crimes against humanity in Burundi—an investigation they claim could undermine local peace initiatives.

So far, the ICC’s work in Uganda has been restricted to prosecuting crimes committed by the LRA, despite the fact that the Ugandan military is also accused of committing war crimes as part of its response to the insurgency. Some speculate that the Ugandan government’s insistence on trying Kwoyelo domestically is a cynical ploy to shield Museveni and his generals from ICC prosecutors. By demonstrating that Ugandan courts can handle trials for war crimes and related offenses, Museveni’s administration could argue that it no longer has any need for the ICC.

“In this country, many leaders have committed atrocities that could go to The Hague,” says Opwonya, the defense lawyer. “Personally, I feel they would rather manage their Hague from here.”

But while the government might want to present the Ugandan judiciary as a viable alternative to the ICC, complaints about its performance continue to mount—and they’re not just coming from Kwoyelo. On the first day of the trial, Henry Kilama Komakech, a lawyer for victims, told the court that he and his co-counsel, Jane Amooti, had received insufficient financial support and so could not fulfill their obligations as outlined by the court. Neither had been able to travel to liaise with victims, Komakech said. Amooti didn’t even have the money necessary to travel from Kampala, the capital, to Gulu for hearings. “Why start up a trial when there is no money?” Komakech asked.

Concerns about the Ugandan court’s performance also extend to its efforts to ensure the safety of witnesses. On the third day of Kwoyelo’s trial the courtroom was abruptly closed to the public so the prosecution could call a “protected witness.” Journalists and organizations monitoring the trial were ordered to leave, with no word on when they would be able to return. They were told that the witness is a former member of the LRA, but no other identifying details have been disclosed.

The ICC has a slew of methods to protect witnesses who have security concerns. These include face and vocal distortion, video conferences and, in some cases, closed hearings. But without similar technology and resources, the Ugandan court has adopted an extreme system of witness protection, closing the courtroom completely and making it impossible for most people besides judges and lawyers to follow the testimony. Of the 120 witnesses the prosecution is expected to bring, it is unclear how many might get this treatment.

“In Uganda we don’t yet have a very good regime of protecting witnesses. We don’t have the law, we don’t have resources, we don’t have an institution in charge of just protection,” says William Byansi, lead counsel for the prosecution. “We are just trying to manage the situation as it is. When it came to testifying in court, some of these witnesses expressed fear. We cannot offer them much in terms of protecting them from where they are. We can at least protect them from the public.”

While Uganda initially cooperated with the ICC, the relationship has soured, and Museveni now dismisses it as useless.

There are drawbacks, though, to having witnesses testify behind closed doors. Solomy Awiidi monitors the trial for the Refugee Law Project, a Kampala-based human rights organization. While the Refugee Law Project understands the need for careful witness protection, she expects victims to decry the lack of access to information. “The question is, ‘Why is it closed?’” she says. “‘Why can’t we, the other victims who are in communities, be part of it?’”

Confronted with these and other concerns, Harriet Ssali, registrar for the High Court’s International Crimes Division, says some lawyers and observers appear to have unrealistic expectations of what the Ugandan judiciary can do. “When [lawyers] look at their colleagues in the ICC being paid in a certain way, they expect the same,” she says. “We keep reminding them that this is a domestic court.”

‘The Expectations Are High’

After two weeks of closed testimony in March, Kwoyelo’s trial was adjourned until next month. The prosecution is expected, at that point, to continue going through its list of witnesses. Court officials believe the trial will take three years to complete.

Meanwhile, victims like Consy, who have no formal attachment to the proceedings, are trying to get on with their lives. After the two years she spent in LRA captivity, Consy returned home with her child, only to be rejected by her family. Her father had been killed by the LRA, and her mother, now married to another man, wanted nothing to do with her. Consy and her son, the one she believes was fathered by Kwoyelo, moved in with her grandparents, but they face persistent taunts and stigma. When her son asks why the neighbors are rude to her, and why his father is not around, she doesn’t know how to answer.

Consy is not alone in her distress. Rose Abalo, 50, says she was captured along with her husband and other residents of northern Uganda’s Amuru district in 1996. The captives were marched to the Kilak hills, Kwoyelo’s old fiefdom. Along the way, they found a woman standing outside her home. Abalo says she watched as Kwoyelo beat the woman to death with a stick. He then left her body behind on the ground and forced everyone to keep marching.

Later, all the female captives were forced to lie in a circle beneath a large tree and hit with sticks. Abalo was pregnant at the time, and she thinks the rebels singled her out for this reason. They told her to lift up both her arms, threatening to cut her hands off. They then slapped her arms with the side of a machete. The women were freed without explanation and told to run home. Abalo never heard what happened to her husband and the other men.

She lived out the rest of the war in a camp for displaced people. It was dirty, overcrowded and a hotbed for illnesses including malaria, cholera and HIV/AIDS. “Life in the camp was very hard,” she says. “There was very little we could do.”

Former child soldiers and residents of areas affected by the Lord’s Resistance Army participate
in a traditional Acholi dance performance, Gulu, Uganda, Dec. 12, 2017 (AP photo by Adelle Kalakouti).

Though Abalo was finally able to return home in 2009, the government, she says, seems to have forgotten about her. “The only thing I know is that [Kwoyelo] caused a lot of suffering in my life. Every night I don’t sleep.”

There are countless other stories of similar torment and anguish, at the hands of both the LRA and the Ugandan military, many of which will not be heard by the court in Gulu. When it comes to providing some measure of justice to these victims, there are multiple ideas about how best to proceed.

Romain Ravet is the Uganda country director for Avocats Sans Frontières, an international NGO that works to support vulnerable populations by advocating for their legal rights. He remains a believer in the power of local trials, rather than ones that unfold thousands of miles away in The Hague.

“We believe in justice being seen by the people who are most affected, so in this case by the victim,” he says. “We believe that this justice has more benefits in terms of helping with reconciliation, helping with transition, helping people find closure.”

“The process of the ICC is different, and we also support that process, but our consultations with victims show that what happens in The Hague is unlikely to help communities in northern Uganda feel like they can put this conflict behind them—feel like they can move on.”

As to whether the Kwoyelo trial specifically can have this effect, however, Ravet’s optimism is waning. “We hope this is going to take a new turn,” he says. “The expectations are high.”

There are others in Uganda, though, who believe that criminal trials are not the way forward. Ambrose Oola, a leader of the Acholi ethnic group, which is based in northern Uganda and suffered greatly under the LRA, says traditional justice processes would be more beneficial for everyone involved. In Acholi ritual ceremonies known as mato oput, for example, those accused of crimes admit their guilt and are forgiven by their victims. Both drink bitter herbs and are healed. “Outside influences are putting weight on our systems without providing solutions to the problems we face,” he told me. “We think the international community is insensitive to the things that bear meaning to our people.”

Other Ugandans, including former abductees, share this view. Evelyn, whose full name has been withheld for security reasons, spent 11 years in LRA captivity. She says she lived closely with Kwoyelo, even recuperating in his bed after she was injured in a battle. She has no interest in criminal justice, hoping instead that Kwoyelo can be forgiven. “He was trained and what he was doing was instilled in his mind by other commanders. I think it was not his choice,” she says. “I think he should be forgiven. Let him not undergo a trial and come home.”

At this early stage, it’s too soon to tell what the ultimate lessons of the Kwoyelo trial will be, and whether and how they might inform future justice initiatives in Uganda and other countries trying to come to terms with past atrocities. For now, the only sure thing is that, for the LRA’s victims, the consequences of the conflict will endure regardless of the verdict Kwoyelo receives.

As Consy puts it, “What he did will always remain in our memory and in our hearts.”

Credit: Sophie Neiman a freelance journalist based in northern Uganda, writing about politics, conflict and human rights.

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