Back to the trial

12-13.11.18 – Plea taking

SUMMARY OF HEARINGS

On the 12th and 13th of November 2018, the ICD started the trial of Thomas Kwoyelo with the process of Plea taking.

The trial panel consisted of three Justices.

The process of plea taking is regulated by Rule 26 of the Rules of Procedure and Evidence of the ICD. A total of 93 counts were brought against the accused in the confirmed amended indictment dated from the 30th August 2018. Each individual count was read out by the Registrar of the ICD and then translated into Acholi to the Accused by an official court translator. In response, Kwoyelo almost invariably answered: “Yes I have understood the charges. I do not know anything about that and I did not do it.”  The Court entered a plea of not guilty for all the charges.

However, some of the counts were referred to coded persons  (C4, C5, etc), and were intended to protect the identity of the victims and witnesses. This was opposed to by the Defence team who argued that such coding did not provide the Accused with sufficient particulars to make an informed decision on how to plead to that specific charge. According to the prosecution, it was submitted that the coding was pursuant to an order of the pre-trial judge and was therefore within the ambit of the Rules of Procedure and Evidence of the ICD, making this sufficient for the purpose of plea taking.

The victims Counsel also argued that in international practice, disclosures are made at the stage of taking of evidence, preventing the disclosures by the court at this stage without the provision of protection for the persons whose identity has been shielded in the indictment as it was provided for in the rules.

The Court then took an adjournment to meet with all the parties’ representatives. It then ruled that in keeping with the principle of equality of arms, the disclosures of the victims’ identities in the indictment should be already made at this stage to the Defence team, so as to meet the requirements of sufficient particulars necessary for plea taking within the scope of the ICD rules.

The Trial Panel adjourned the hearing of the case to the 4th of February 2019, at Gulu. The court also adjourned for 20 minutes to meet with the counsel for all parties to resolve all the issues raised by the Counsel in open court, such as the appointment of assessors (raised by the Prosecution) and the hearing of the Bail application.

However, the Court was not reconvened as was the case in the first adjournment on concerns of disclosure and did not communicate its decision in open court with regard to the issues raised. This bears the risk of creating a communication gap between the Court and the audience. This more generally raises the issue of whether such meetings between the panel and counsels fall within the ambit of status conferences provided for under Rule 31(4) of the ICD rules and whether the outcomes of such meetings are to be shared in open court for the benefit of all.

The date of hearing of the bail application is maintained for Thursday 15 November 2018 at the Gulu High Court.

© 2019, Avocats Sans Frontières. Tous droits réservés. Webmaster: Média Animation asbl