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9-10.12.2019- Continuation of trial

The trial of Thomas Kwoyelo resumed before the ICD in Kampala on December 9th and 10th, 2019. The two-day hearing session follows an adjournment on October 9th, 2019. The hearing was held before two Judges on the first day and before one Judge on the second day.

The accused was absent on December 9th, due the Court’s failure to issue a production warrant to the prison authorities to enable them to bring him before Court, as required by Section 13 of the Trial on Indictment Act and Article 28(5) of the Constitution (which guarantees the rights of an accused person to be present at his or her trial).

The Defence team also raised the issue of the absence of two other important actors: the interpreter[1] and the Court assessors. In March 2019, the Court appointed assessors in line with Rule 30 of the Rules of procedure and Evidence of the ICD. The assessors are non-lawyers who advise the Court during the course of the trial and offer guidance in reaching its decision. They represent the views of the society and their presence is thus key in terms of ensuring accountability and transparency to the general public. Recent case law has highlighted the importance for the assessors to attend the whole trial : an assessor who has been absent from part of the trial and has not heard the evidence of only one witness should  be refused the opportunity to resume participation and give his or her opinion to the Judge, and a sentence based on the opinion of such assessors should be quashed and a re-trial be conducted (Okao Jimmy Alias Baby & 4 Others V Uganda, Criminal Appeal No. 55,62 & 67 Of 2016 Court Of Appeal, 2 May 2019).

As a result, the trial was adjourned to December 10th in order to secure the presence of the accused, the interpreter and the assessors, though the assessors were eventually still missing. On this day, other issues arose, as the prosecution team informed the Court that they were experiencing logistical challenges, notably lack of funds and facilities to bring the witnesses to Kampala. The prosecution, defence and victim lawyers proposed for the hearings to resume in January 2020 in Gulu, for purposes of proximity for the witnesses.

The Victim Counsel requested facilitation (transport, accommodation, meals and refreshment) for 30 Amuru-based victims. The Judge stated that the Court would take into consideration all the technicalities raised by the parties and directed the Registrar to meet with the Victims Counsel and discuss the logistical arrangements of victims’ participation.

All these incidents strengthen the need for a Status Conference to be held to handle the technical challenges faced by the different parties or the issue of victims’ participation.[2]

The ICD’s shortcomings, such as the non-issuing of the production warrant, which lead to constant postponement of the trial, directly affect the rights of the accused person in terms of a fair and speedy trial as provided for under Article 28(1) of the Constitution of Uganda and also Article 14(3)(C) of the International Covenant on Civil and Political Rights.

The hearing has been adjourned to January 13th, 2020 and will be held in Gulu.

[1] Article 28(3)(f) of the Constitution provides the right for an accused person to have an interpreter if he or she does not understand the language used in the trial.

[2]Rule 31(4) provides that “The Trial Judge or Trial Panel may, in order to facilitate the fairand expeditious conduct of the proceedings, confer with the Parties byholding status conferences as often as is necessary”.

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