The trial of Thomas Kwoyelo alias Latoni, the former Lord’s Resistance Army rebel commander, which is the first case of war crimes ever to be tried before a domestic court in Uganda, has taken so long, prompting his victims to ask that he be tried by the International Criminal Court (ICC) in The Hague just like Dominic Ongwen. They are skeptical whether the International Crimes Division (ICD) has the means to fully achieve this enormous task as ICC would.
The ICD, which is a subordinate court of the High Court of Uganda, has unlimited original jurisdiction in all matters as per the ICD Practice Directions of 2011, which confirmed the court’s jurisdiction to try any offence relating to genocide, crimes against humanity, war crimes, terrorism and other international crimes. Some of the cases before the ICD include, Uganda versus Thomas Kwoyelo, Jamil Mukulu, Mumbere Charles Wesley, Adea Maxwell, Onyaeko Ugochukwu, Sheikh Siraje Kawooya & others, among others.
The ICC cannot prosecute all crimes from the member countries and thus there is need for effective prosecution at the national level in fulfilment of the principle of complementarity. The ICD represents a new model of international criminal justice that mixes elements of both international and domestic law and procedure. It also operationalises the Transitional Justice Mechanism of justice for LRA victims.
The principle of complementarity requires that a national criminal justice system effectively punishes international crimes in a manner similar to that provided for in the ICC Statute. In Uganda, the ICD has the primary responsibility of trying such offenders.
The effective prosecution of international crimes necessitated taking measures at the national level and the establishment of the ICD was a state action in accordance with Uganda’s obligation under the Rome Statute.
The ICD recently enacted the new Rules of Procedure and evidence modelled on those of the ICC. Among other issues, it is important that the victims are heard and compensated for what they have lost. Given the nature of crimes before the ICD, it is also important that witnesses who appear to testify are adequately protected.
The ICD is in the process of formalising Registry Guidelines which are meant to serve as a practical tool to guide investigators, prosecutors. Registry staff and judicial officers on sensitive approaches and best practices for handling witnesses and victims at the various stages of the criminal justice process.
The success of current and future war crimes trials depends on the willingness of witnesses and victims to provide relevant testimony upon which the perpetrators would be held accountable. This can only be achieved through taking appropriate measures to protect the safety, privacy and physical and psychological wellbeing of the victims and witnesses in general.
All this is achievable and will be achieved. What is needed is the government of Uganda to develop the political will to provide the required financial and material resources to ICD to be able establish its registry with a functional witness protection and Victim Support Unit.
The absence of a legal framework to put in place mechanisms for witness protection during investigations, trial and after court proceedings remains a challenge for the proper operation of the ICD.
This justifies the call for priority funding to be accorded to ICD to meet the international standards although government argues that ICD is a division of the High Court and thus should be at par with the rest of other subordinate divisions in respect to budgetary and logistical facilitation.
However, this debate overlooks the objectives and goals of the ICD. Authorities should recognize the importance of the ICD as a court of Complementarity and committed to achieving results. Although ICD is named as a ‘Division”, its functions, form, laws and jurisdiction show that it’s a domestic court applying both international and national laws in whose jurisdiction fall international crimes. This, therefore, requires additional funding than the ordinary court budget.
Therefore, the ICD is not just a division of the High Court but a court of international jurisdiction which prosecutes international offences such as war crimes and crimes against humanity the same way ICC does.
It is necessary to make more efforts to entrench the ICD in Uganda’s Criminal Justice System and make it fully functional as an international to the level and standard of an international. Efforts towards improving the ICD’S set up should continue so that the national system is able to effectively investigate, prosecute, defend and adjudicate upon the serious international crimes within its mandate.
Ms Njuki is the communications officer
at the International Crimes Division of the High Court, Kampala.
This article was originally published by Daily Monitor.
