Ugandan Lawyer lays bare the agony of representing Thomas Kwoyelo

By Susan Kendi

How does a multiple victim of war become the foremost defender of an alleged war crimes perpetrator?

Like many of his fellow citizens, lawyer Nicholas Opiyo bears the emotional scars of the Lord’s Resistance Army’s two-decade-long insurgency in northern Uganda. Opiyo’s father and sister were abducted by the LRA. Yet, when LRA commander Thomas Kwoyelo was captured in battle in the Garamba hills in the Democratic Republic of Congo (DRC) by the Uganda People’s Defence Forces (UPDF) in 2008, Opiyo agreed to be his lawyer.

For the first time, in an exclusive interview with Journalists for Justice (JFJ) carried out on the sidelines of the third edition of the Global Action against Mass Atrocities, Opiyo lays out the conflicting emotions he wrestled with before making the decision, in the interest of preserving the integrity of the trial, to offer free legal services to Kwoyelo, a man who just months before was in league with the very people who had caused his family so much pain.

Kwoyelo, by all accounts, has gotten a rough ride from Uganda’s International Crimes Division. First established as the Special Division of the High Court, the ICD was later renamed the War Crimes Division in 2008, before coming into its current name. That indecisiveness is also apparent in the way Kwoyelo has been treated. Even after a decade in detention, the charges against Kwoyelo have still not been confirmed. The case, variously described by experts as “complex”, has been adjourned for a variety of reasons that include lack of quorum among defence lawyers and lack of funds. In Opiyo’s telling, the Kwoyelo trial has become a monument to the failure of complementarity under the Rome Statute.

This is the first of a three-part serialisation:

JFJ: Please introduce yourself?

Opiyo: My name is Nicholas Opiyo. I am a human rights lawyer working with the human rights charity, Chapter Four Uganda, based in Kampala. I was born and raised in northern Uganda and lived through the LRA conflict for my whole childhood.

I went to school in northern Uganda, I still have siblings who live in northern Uganda. My father is there; my mother is there. As a child living in northern Uganda at the height of the conflict, I had to survive abduction by the LRA, like any other child. I just spent nights queuing for relief food and items from non-governmental organisations.

Young children who feared abduction walked five miles or even more every night to sleep in open public spaces, and were called night commuters. My sister was abducted and spent six years in the ranks of the LRA as a sex slave or what they call a wife of the commander’s and I lived through the conflict.

Large parts of my family lived in camps for the internally displaced for a long time. My father was abducted seven times by the LRA on different occasions when he went to the village for burials or for weddings. So I literally grew up in northern Uganda and made it through the harsh conditions of war to luckily become a lawyer.

JFJ: Given your history, how did you come to be one of the defence lawyers in the Thomas Kwoyelo trial?

Opiyo: I think that, one of the most difficult decisions [I had to make] was whether I should accept the request by Thomas Kwoyelo to be one of his three first defence lawyers when he was first charged. The reasons are simple, Kwoyelo could have been the one who abducted my sister, he could have been the one who abducted my father. There is no doubt he is accused of serious crimes that he himself doesn’t deny having committed.

Second, Kwoyelo could have been me because like any young child living in Uganda, he was abducted and conscripted into the LRA. Thirdly and more importantly, Kwoyelo’s father was a close friend of my father. His family was known to my family and so when they made the request for me to join his legal team, it was a very [difficult] personal decision that I had to make in light of the fact that my own sister was abducted by the LRA, my father was abducted, I was a victim of the war.

I thought at the time that like everybody else, Kwoyelo deserved a fair trial, that he deserved due process, and that he was unable to afford a lawyer. For those reasons, I agreed to join his legal team.

At the beginning we were only three lawyers on the defence team. We were not only the first lawyers acting in defence before the newly created ICD, at the time called the War Crimes Division of the High Court, but we were also the first lawyers defending a rebel commandant before a court in Uganda.

It was a very difficult decision, but we made it and we offered our services for free to defend Kwoyelo, for the integrity of the trial process. When Kwoyelo was charged before the magistrate’s court for various crimes including murder, abduction, killings, rape, we showed up to defend him.

JFJ: What were the challenges of defending one of the people alleged to be a perpetrator of atrocities in northern Uganda while at the same time being a victim?

Opiyo: The biggest problem was my own family because, I couldn’t explain to my sister that I was defending Thomas Kwoyelo. It is tough. She spent six years in sexual slavery and to hear that her own brother was defending a rebel leader was heartbreaking for her. But there were so many people in my part of the world, northern Uganda, who thought perhaps I was doing it for money.

Many couldn’t believe that we were doing it for free. In fact I spent my own money providing for the basic upkeep for Kwoyelo in prison and in going to upcountry courts for his cases. People couldn’t understand that I was doing that. But beyond people saying nasty things about you, I didn’t face any physical threats. In doing the work itself, it was clear to me that a rebel commander could not get a fair trial in a domestic court in Uganda.

The presumption of guilt is so apparent in the process, access to him in prison was a difficult issue. You were not allowed to speak to him in private, if you go to him in the first place you are being told what days of the week you could come, or what time of the week you could come, so it was difficult and drew me to the conclusion that, there was no way the trial before the ICD was going to be a fair trial for Kwoyelo or any other rebel leader charged before that court. Public opinion was up against them, the court itself did not proceed from the point that they were dealing with any other ordinary crime.

JFJ: You have previously said your sister was in sexual slavery for six years in the bush and your father was abducted seven times. How were they reintegrated into the community?

Opiyo: My father was lucky: he is a 92-year-old former teacher now who taught all over the region for many decades and so he didn’t spend long [periods in captivity] when he was abducted, he spent a couple of days. The longest he was held was four days and he would meet a student he taught, he would meet somebody who knew him from the village, who heard of him and he would quickly be released. My sister on the other hand, had a completely different experience.

She was teenager in a secondary school, St Mary’s College, Lacor about 30 minutes by bike or about 10 minutes by a car, west of Gulu town. She was a young girl and she couldn’t escape and so she spent six years in detention. She was lucky, because their camp in South Sudan was attacked by the [Sudan People’s Liberation Army] at the time and they were scattered. She had to walk for two weeks to reach the Ugandan border and then reported to the local council authority.

When she reported to the local authorities at the border, she was handed over to the army and kept her in the barracks in Gulu for a couple of weeks before handing her over to the World Vision which was running a former abductee reintegration centre. She spent about three, four months in that centre before being released to our family.

It’s been a difficult process, my sister never applied for amnesty. She never got amnesty, after four months of being in a returnee rehabilitation centre, she was handed back to the family and then nothing else was done for her after that. So it fell to the family to do all we could to offer her legal assistance, to offer her counselling services, to take her back to school, to try and get her back to her feet and thankfully she is a strong woman. She’s now a mother of one and doing fairly well, as well as she can reasonably be expected to do.

JFJ: How did you approach defending the Kwoyelo case?

Opiyo: We advised our client to take advantage of the amnesty law because like any other rebel commandant, he was entitled to apply for amnesty and he deserved to receive amnesty because other senior commanders, way above his rank, had applied for and got amnesty.

To our utter surprise when he applied for amnesty, he was denied and instead charged in a court of law. We argued that the different treatment accorded to Kwoyelo was in fact a violation of his rights because he was entitled to equal treatment under the country’s legal system and so we referred the case to the Constitutional Court to interpret whether the Kwoyelo treatment amounted to discrimination under Uganda’s laws. He deserved equal treatment like anybody else, regardless of the merits or demerits of the Amnesty Act.

The court agreed with us and ordered the government to give Kwoyelo amnesty and release him forthwith. The government appealed the case to the Supreme Court and the decision was reversed with the judges’ ruling that Kwoyelo must stand trial for what the court called international crimes. The case went back to the ICD but the most surprising thing was that government lawyers went to court to argue that the Amnesty Act was unconstitutional. A law that was tabled in Parliament by government, a law that the government had used to pardon at the time over 26,000 people who were involved in rebellion was arguing that, that law was unconstitutional and a breach of international law.

It was quite shocking for us but you know the court eventually held that there cannot be amnesties for serious crimes under international law and therefore Kwoyelo was ordered to take trial before the ICD. When the case went back to the ICD, the country began to grapple with what kind of legal system should be used to try Kwoyelo. Uganda runs a common law system in which there is no place for victims. The court had to grapple with how victims would participate in this case. The court itself had to develop rules of application and begin to think about what a pre-trial proceeding would look like since they were unknown to the justice system. Kwoyelo became a guinea pig for the ICD: the court was making rules along the way. They made the rules as they went and in so many ways made missteps.

JFJ: What were these missteps?

Opiyo: The first misstep was the court began the pretrial proceedings on the basis of draft rules of court. Draft rules are by their nature not yet finalized and therefore could not be used for trial but the court convened a pre-trial proceeding to try Kwoyelo. We challenged the application of draft rules and the court said: “Now these rules are draft. We have been told to use them; if there are problems [we can] take them back for amendments.” We challenged trials under what we saw as an illegal rule of the court. The second misstep was about victim participation. Ordinarily, victims would apply to participate in the case and every victim must show a nexus between their victimhood and the case before the court.

In this case, the court went shopping for victims. There was no victim application in court seeking to participate and so they were assumed to be victims of the LRA conflict. Some of them had no nexus between their victimhood and the case against Kwoyelo. We objected to that procedure. There was also the question of witness protection — every single witness seeking protection needed to apply to court detailing the threat against them and the court would have to make an assessment of the threats and issue appropriate protection measures. In this case the prosecution determined on its own that their witnesses were under threat and therefore refused to give us full witness statements, they gave us heavily redacted statements that we could not make sense of and so we protested and the court then stopped the pretrial proceedings and went back to the drawing board. The rules were then redrafted, gazetted and published.

The first rule of the ICD said: “Pretrial proceedings would be conducted by a court comprised of a judge of the Division.” It meant that a pretrial proceeding could only be conducted by a judge who is assigned to the ICD, but a judge from elsewhere — another division of the High Court — was assigned to conduct the trial proceedings.

Secondly and more curiously, the judge sent had recently been appointed and previously headed War Crimes at the Directorate of Public Prosecutions office, and so we raised objections and said “Fair trial demands that you bring an independent judge who belongs to this division or from outside” and so the court objected to our plea and refused to hear it. At that point it was clear to me that the trial was not about due process — it was a show trial to demonstrate that the court was working and I felt that I could not put my name to a shoddy process. I withdrew my legal services from Kwoyelo two years ago.

JFJ: Exactly what is the mandate of the court?

Opiyo: The court has had a fluid mandate. For example the court was set up by a rule by the Rules Committee of the judiciary primarily to try international crimes. At the time, it was genocide, war crimes, crimes against humanity,

you know under the Geneva Convention crimes and the Rome Statute crimes but eventually, when the court couldn’t find enough of such crimes, its jurisdiction was expanded to try cases of piracy, terrorism, and human trafficking, so a lot of the cases in the court now are cases of terrorism. In fact the only cases that the court has delivered judgment on are those of terrorism and even ongoing trials now are only for cases of terrorism.

There are a few cases of human trafficking, there’s no case of proof of piracy yet but the major focus of the court has since shifted. In the specific case of Kwoyelo now, we are on the third set of amended pleadings. Initially, he was charged under the Penal Code for murder, for destruction of property, for abduction and while they charged him for those crimes, they argued that was a crime committed in the context of international conflict but there’s no evidence of international conflict. When the lawyers objected to those charges, they were amended to include charges under the Geneva Convention Act.

So he was being charged for crimes under the Geneva Conventions Act and in the alternative the Penal Code so, they will charge you for say crimes against humanity but in the alternative charge under the Penal Code for murder, abduction and stuff like that. When those were challenged as well, they now produced a third set of charge sheets under customary international law, which is quite strange.

Not only has the court’s jurisdiction expanded to include other crimes, the charges brought before the court have now moved statute law to the Geneva Conventions Act to the Penal Code and to customary international law. So that’s where the court is.

JFJ: What are the main reasons for delays in the Kwoyelo trial from the High Court, the ICD, to the Constitutional Court?

Opiyo: They would be in two parts. The first was just a procedural delay. I think that the challenge that went to the Supreme Court caused a long delay in getting the case started, because we needed to exhaust all the processes and all those courts are not known for their expeditious way of handling cases. So the first delay would have been occasioned by the attempt by Kwoyelo to exhaust other remedies. But there are also structural reasons why this case has delayed. One, the court doesn’t have a permanent bench. I think we are now on the fourth set of judges of the court. The first set had Justice Nahamia, Justice Owindo who is now the deputy chief justice and Justice Akiki. That whole set was removed and a new set of judges was then appointed to the ICD which has Justice Gaswaga, Justice Muwanguzi, who has now been appointed to the Court of Appeal, that entire second lot has now been removed, there is now a third lot of judges in the ICD. We have Justice Mochiri.

Now you have in fact, I could even say a fourth panel — we have Justice Margaret Oguli, Justice Gaswaga — he is still there. There has been just a frequently changing membership of the bench and so the old judges who were trained, who understood the case have long since left the division. You have new judges who now have to acquaint themselves with the charges, with the proceedings and you know as such has also caused a lot of delay.

The third reason is that, I think that the absence of definitive rules of the court from a very start, left the court fumbling in trying to make up rules as they went along. There was no standard on how to deal with victim participation, defense counsel, the question of disclosure, all of that also occasioned great loss of time. I’m not quite sure the court is even now ready on victim participation. Will the victims cross-examine defence witnesses? Would the victims cross-examine prosecution witnesses? What is their participation? I don’t even think the court has a register of victims because no victim has applied to join the case so the court process has been hijacked by what I think is conflict entrepreneur NGOs, who are going around mobilizing victims to come and join the court. Who are advocating for an expansion of the charges to include sexual offences. So all of that has caused inordinate delays in the trial of Kwoyelo.

Next: Kwoyelo trial cements a tradition of dodging accountability in Uganda http://www.jfjustice.net/en/complementarity/kwoyelo-trial-cements-a-tradition-of-dodging-accountability-in-uganda

See also: ‘Ugandans are not numb; they are only bottling up anger’ http://www.jfjustice.net/en/complementarity/ugandans-are-not-numb-they-are-only-bottling-up-angera