Thomas Kwoyelo defence lawyers consulting each other at the Gulu High Court Circuit. Photos by Brian Komakech
By Brian Komakech
Gulu: Judges at the International Crimes Division of the High Court have rejected former Lord’s Resistance Army (LRA) rebel commander Thomas Kwoyelo’s defense lawyers’ application seeking to guide their client during his defense trial.
Kwoyelo’s defense lawyer, Caleb Alaka on Monday sought the powers of the court sitting at the Gulu High Court Circuit to allow the defense to intervene in guiding him as he puts up a defense against war crimes and crimes against humanity indictments.
The application was made shortly after Alaka told the four panel members of the justices of the ICD that their client had chosen to present an unsworn statement as his mode of defense in the trial.
“The accused was given options as it’s the practice of how he is going to give his defense. The accused intends to give an unsworn statement,” Alaka submitted.
At a criminal trial, an unsworn statement is given without the obligation of an oath, and a suspect who chooses it is not subjected to cross-examination.
Alaka however told the court that while the accused had chosen to present unsworn evidence, there was a need for the court to make exceptional adjustments to allow the defence to offer guidance due to the peculiar nature of the case.
Firstly, he reasoned that the case’s background spans more than a decade, while there are over 50 state witnesses’ evidence submitted in court that can’t all be recalled by the accused without being reminded.
Kwoyelo’s trial commenced in November 2018 and he was initially indicted on 93 counts of war crimes and crimes against humanity charges allegedly committed between 1992 and 2005 in Kilak County, Present day Amuru District.
The court however in December 2023 dropped 15 charges and confirmed 78 others to which he was asked to put up a defence.
The ICD Deputy Registrar Harriet Harty Hatanga on Monday noted that Kwoyelo would present 15 witnesses in his defense in the ongoing trial.
According to Hatanga, the witnesses included Kwoyelo himself, former LRA fighters, expert witnesses, and community members who believed in Kwoyelo’s innocence. She however said nine of the witnesses’ identified had been deducted for protection.
Hatanga noted that despite the challenges experienced in the past, the case has now reached an advanced level that awaits the closure of the defense presentation.
“It’s been a burden for us given the time it has taken, and the resource implications of the case. We are happy that we can now see the light at the end of the tunnel. We expect that within three weeks or less, we should see the defense closing its case. This is exciting because once the defense closes its case, the judges can retire and write the final ruling,” said Hatanga.
William Byansi, the State Prosecutor however during the court session objected to the application of the defence arguing that the move offends the rules of procedure in the trial and occasions prejudice to prosecution. Byansi noted that it would be ideal for the court under the rules to remind the accused of the indictment and evidence but not the defense.
“There is no way his defense can start taking him through the evidence or the incident without offending the rules or causing prejudice to the prosecution. My Lord, the defense has not indicated the scope of what they are trying to apply for. They should have been a little specific about how the court should bend the rules.”
In his ruling, Justice Duncan Gaswaga noted that since the accused has asserted the rights against self-incrimination by opting to give an unsworn statement, he loses the right to the assistance of counsel although he gains the advantage of not being cross-examined.
“In this scenario, the accused cannot have it both ways. The accused has chosen to make an unsworn statement; he is restricted from seeking to be guided or assisted by the defense counsel. This is the mandatory requirement of the law,” ruled Justice Gaswaga.
He noted that the court also found no merit in the defense’s argument on limited time, arguing that firstly, the defense seems to have looked at only the time the prosecution closed its case.
“Owing to the above, the court cannot invoke its inherent jurisdiction where there is an express provision of the law. In other words, rule 2 Sub-rule 3 and Rule 25 Sub-rule B are inapplicable in light of the express provision of section 73 of the Trial Indictment Act (TIA) regarding the mode of defense for an accused. For those reasons, this application is disallowed,” he ruled.
The court was then adjourned till Tuesday, April 15, 2024, when Kwoyelo will reappear in court for the defense hearing. Kwoyelo is the first high-ranking LRA rebel commander to face trial in a domestic court in Uganda. He has been in custody at Luzira Maximum Prison since 2009 after his arrest in the jungles of the Democratic Republic of Congo (DRC) in 2009.
