Impact of Kwoyelo pre-trial to Uganda's jurisprudence

Aug 24, 2016

The case has brought a change in the socio-political life of people in the greater Acholi sub-region.

By Dorah Acaye P'Obina

The Kwoyelo case is the first of its kind to be tried in Uganda's judicial system. It has espoused Uganda's jurisprudence through a prism of change; a change that espouses growth in our judicial system.

It has espoused the strength of Uganda's statehood and sovereignty eliciting the inalienable, political and legal mystical ability of a nation that is growing to control its own affairs, despite its inadequate machinery. This synchronises the legal and political union of the nation; as a result it greatly impacts the nations jurisprudence.

The case has brought a change in the socio-political life of people in the greater Acholi sub-region.

The background of the case tells a tale that raises intrigue, sympathy and empathy. It creates a mystical dilemma that can only be viewed through a lens with utmost precision to avoid mistakes as it is the very first of its kind, the genesis of many more to come.

The facts of the case are that Kwoyelo was abducted as a minor aged 13 years on his way to school. He thus remained in captivity and was forcefully conscripted in the LRA Army where he "rose" to the rank of colonel until 2008 when he was arrested by the Ugandan army in Garamba, DRC Congo. He was detained at the Luzira government prison. The dilemma retorts on the fact that in as much as Kwoyelo is accused of having perpetrated these inhumane crimes, he was also merely a victim of circumstance.

Through the Kwoyelo case, Uganda's judicial activism as a nation is put to test. The case being the first of its kind is a courtesy call for precedence. The case sets a precedent that will be used in dispensation of justice many years to come. The case raises a multifaceted category of issues which include interalia reparations, victims' participation and accountability, when it comes to stakeholders like state actors and witnesses.

The case espouses customary law aspects and transitional justice mechanisms for retributive Justice.  Among the Acholi, there is the mato oput method, which has gained notoriety and has been used in solving and settling disputes among the Acholi people. Infact a faction of the Acholi people want the transitional justice mechanism of mato oput to be used to try Kwoyelo instead of a full trial.

Transitional justice mechanisms, however, raise ripples because the nature of crimes allegedly perpetrated by the accused are crimes against humanity, therefore, the mechanisms may easily raise the issue of criminal accountability. The purpose of the criminal justice system is to deter, effectuate retribution, punish and rehabilitate a criminal.

However, suffice to note is that the African criminal Justice system does not give space for rehabilitation, save for a few circumstances. Thus an argument may arise that there is a need to pursue accountability for the criminal aspects of the case.

Consequently, it also illustrates and effectuates the doctrine of complementarity. The preamble of the Rome Statute emphasises the complementary role of the International Criminal Court to criminal jurisdictions. Article 17 of the Rome Statute hinges on a state's ability and ultimately inability and willingness to investigate and prosecute international criminal offences. The fact that the pre-trial is taking place in Gulu, Uganda, exhibits the growth of the judicial system as a whole.

In conclusion, considering the fact that this an unexplored avenue in our jurisprudence, it is important to closely monitor the Kwoyelo case with utmost precision because it rests on an intricate balance as many stakeholders are involved. The case in my opinion raises "a tale of two cities" with the doctrine of complementarity at hand. It also opens up a Pandora's Box of lots of expectations.

The writer is a lawyer based in Gulu

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