Kwoyelo’s lawyers question legality of presiding judge
Ex-LRA rebel commander Thomas kwoyelo in court on Thursday. The judge is expected to deliver a ruling in his appeal challenging her legality in handling Kwoyelo's pre-trial hearing. Photo by Julius ocungi
What you need to know:
- Kwoyelo’s trial followed the judgment of the Supreme Court last year which held that he should be tried before ICD of the High Court on grounds that the Director of Public Prosecutions (DPP) didn’t discriminate against him when he slapped the 53 criminal charges against him.
- On August 15th this year, Kwoyelo appeared at Gulu High Court before Justice Okalany, but the pre-trial hearing flopped when his known lawyers Caleb Alaka and Nicholas Opiyo failed to show up.
GULU. Former LRA rebel commander Thomas Kwoyelo’s lawyers have questioned the legality of the judge presiding over his pre-trial hearing, saying she is not among judges of the International Crimes Division of the High Court.
Mr Kwoyelo had appeared on Wednesday afternoon before presiding judge Suzan Okalany at Gulu High Court.
He was represented by lawyers Caleb Alaka, Nicholas Opiyo, Geoffrey Anyuru and Dalton Opwonya.
Kwoyelo’s Pre-trial hearing was to commence by 9am, but was adjourned to 2pm, following a closed-door meeting between his lawyers and the prosecution at the Judge’s Chambers. Details of the meeting were not disclosed.
The former LRA commander is facing charges of war crimes and crimes against humanity he allegedly committed in northern Uganda.
Mr Alaka, Kwoyelo’s lead lawyer, said rule 6 sub rule 1 of the judicature of the International Crimes Division 2016 mandates the head of the division to designate a judge who is within the ICD to hear Kwoyelo’s case.
“My Lord with utmost respect, we are aware that you are a High court judge, but what we are not aware about is whether you are in the International Crimes Division of the High Court,” Mr Alaka said.
In his argument, Mr Alaka said the International Crimes Division was created to handle special cases and involving a judge who is not in the Division is an abuse of the procedure in the pre-trial of Kwoyelo.
Mr Alaka also told the court that it was illegal to conduct a pre-trial since no application and decision was made following the pretrial hearing that was presided over by Justice Lydia Mugambe in April this year.
He said Justice Mugambe’s orders were still valid, citing that no party whether the prosecution or the defence challenged court to nullify the orders.
But Mr Charles Richard Kamuli, the state prosecutor, said the appointment of Justice Okalany to preside over Kwoyelo’s case was done formally, citing that Article 139/1 of the constitution gives the High Court unlimited jurisdiction to try all cases.
Mr Kamuli also cited Section 14/1 of the Judicature Act, saying it gives power to Justice Okalany to preside over the pre-trial hearing of Kwoyelo.
Justice Okalany in her ruling acknowledged that rule 6/1 of International Crimes Division stipulates only an ICD judge to preside over high profile crimes like that of Kwoyelo, but noted that her qualification too equates to the judges at ICD.
She noted that provision 139 of the Article of Uganda and Section 14 of the judicature act empowers the High cCourt to handle all matters whether civil or criminal without distinction.
“I respectfully therefore refuse to excuse myself from this pretrial,” Justice Okalany said.
Mr Opiyo, however, objected to the ruling saying they will appeal Justice Okalany’s ruling in the Courts of Appeal.
Justice Okalany consequently adjourned the court after a long hearing that lasted till 7pm .
ICD is a special division of the High Court established in 2008 and aimed at fighting impunity and promoting human rights.
Kwoyelo was captured in 2008, by UPDF from DR Congo. He was charged with 53 counts of murder, wilful killing, kidnap with intent to kill, aggravated robbery and destruction of property during the two decade war led by LRA’s Joseph Kony in Northern Uganda.
Kwoyelo’s trial followed the judgment of the Supreme Court last year which held that he should be tried before ICD of the High Court on grounds that the Director of Public Prosecutions (DPP) didn’t discriminate against him when he slapped the 53 criminal charges against him.
On August 15th this year, Kwoyelo
before Justice Okalany, but the pre-trial hearing flopped when his known lawyers Caleb Alaka and Nicholas Opiyo failed to show up.
To that effect, the judge suggested
Ex-LRA rebel Kwoyelo turns down new lawyers
Presiding judge Susan Okalany offered to allocate him new lawyers in a bid to have the pre-trial hearing start but the former rebel commander rejected the offer.
for Kwoyelo to enable speedy trial although he rejected the proposition, saying his lawyers knew best his case.
