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15-18.07.2019 – Resuming of witnesses’ hearings

During the four days of hearings, several witnesses delivered their testimonies either in open court or in camera. On the first day, the Court heard a witness, Head of the Uganda Police’s health service since 2011, who used to work in Mbarara as the deputy head of police health service. He explained that he examined Kwoyelo on May 2009 and wrote two separate reports, which the Court admitted as evidence. He stated that Kwoyelo then did not present any signs of recent physical injury and was mentally healthy, which the Defence challenged. The lawyer highlighted that Kwoyelo actually presented several fresh scars from bullet wounds at the time of examination. He further challenged the allegation that the witness had interacted with the accused, finding no evidence of interpretation made available to Kwoyelo at the time. The witness and the defence further disagreed on the state of Kwoyelo’s mental health. It should be noted that during cross-examination, the witness called for court’s protection at several occasions but the trial panel allowed the defence to go on with cross-examination.

In spite of the testimony being opened to the public, only a handful of people were present in the courtroom, as the last series of hearings had been mostly held in camera. In this regard, a debate took place following the Prosecution’s request to hear the next witness in camera. The Defence objected, arguing that “the public should hear and know what is happening in the courtroom because they are part of the court”. The court overruled this objection and granted the Prosecution’s motion. It stated, on the basis of Section 36 (1) of the Rules of Procedure and Evidence of the Court, that all parties would be forbidden to deliver any information about the witness to the public and that the parties should refer to the witness under a code name. Referring to Section 36 (9) (c), the Court further allowed the public to follow the witness’s testimony from outside the courtroom, through a video link put in place by NGO Refugee Law Project, with distorted voice and without showing the image. However, the prosecution’s questions did not fully comply with the court’s instructions, as some personal information of the witness ended up being made public.

The decision to allow the testimony to be followed by the public is a positive sign of the Court’s willingness to foster victim participation. However, holding such hearings in public implies that all parties imperatively comply with the measures of witness protection that are ordered. Additionally, it was unclear in this case whether the proceedings should have happened in camera or not, as requested by the Prosecutor. If so, the proceedings should not be not have been made public at all. Once more, this episode highlights the urgency of clarifying rules of victim’s participation on the one hand, and witness’s protection on the other.

On the last day of this series of hearings, while their witness was in court and ready to testify, the prosecution asked for an adjournment until September 30th. The prosecution justified this request on the basis of the defence’s complaints in relation to access of the redacted details of the next witness’s testimony, which included details of the previous witness’s testimony, which had rightly given rise to the above debate. The prosecution further referred to insufficient logistics and the need for the government to disburse funds. In spite of the defence’s opposition to this adjournment, which may entail a breach Mr. Kwoyelo’s right to an expeditious trial, the trial panel decided to postpone the trial to September 30th.

Beyond the issue of witness protection, no psychological support was again available for witnesses and it is unclear whether the court has recruited a psychological expert to handle the psychological needs of witnesses. The public has been turning up for the trial on a daily basis but was excluded from the courtroom most of the days except on few occasions and after the installation of the video link.

Moreover, one of the three remaining assessors appointed in March fell abruptly sick on July 17th, leading to an interruption of the hearing on that same day. After a first assessor excused himself for medical reasons on July 1st, only two out of four assessors are left to advise the court.

Further information about the hearings available on International Justice Monitor.

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