Gov’t Not Responsible for Compensating Kwoyelo’s Victims-Attorney General

The Attorney General has asked the judges at the International Crimes Division of the High Court to dismiss an application demanding the court to order the government to compensate victims of atrocities committed by convicted former Lord’s Resistance Army Revel Commander Thomas Kwoyelo.

This follows an application filed in court by the victim's lawyers along with 103 victims requesting the court to issue an order compelling the government to take responsibility for compensating the victims for the crimes committed by Kwoyelo.

Kwoyelo was convicted by the court in August this year for committing war crimes and crimes against humanity and was consequently sentenced to 40 years in jail on October 25.

While highlighting their application during a reparation hearing held at the Gulu High Court Thursday, the victim's counsel, Jane Magdalene Amooti, told the court that matters related to reparation are a state responsibility under international law.

Amooti also requested the court to issue an order compelling the Attorney General to establish a Trust Fund for victims from which funds will be drawn to meet the reparation needs of the victims in Pabbo and Lamogi Sub-counties. She highlighted that 3,150 victims have been identified, of which 1,500 are in Pabbo Sub-county in Amuru District. 

“Under international law it’s a state responsibility and even where the convict is indigent, looking at the UN's basic principles of reparation, it’s still the duty of the government to repair all the lives of victims it can be through programmes, even creating the victims fund,” says Amooti.

The victim's counsel says they are considering having in place both individual and community reparation and a symbolic award of 4 million shillings each to the victims to suit the varied needs of the victims.

Johnson Natuhwera, a Senior State Attorney who represented the Attorney General however told the court that the primary responsibility for compensating the victims lies with the convict who committed the crimes but not the government. 

He said the government wasn’t held accountable by the court for any crimes during sentencing and it would be unlawful to be ordered to give remedies which isn’t derived from the court's sentencing.

“For a remedy to be given by the Attorney General, it has to be derived from a sentencing judgement. There is nowhere in the judgement where it says the government was held accountable for any crimes,” says Natuhwera.

He noted that the was no legal basis to hold the Attorney General who is a third party liable for the obligation of the convict and urged the court to dismiss the applicant's requests citing it as a wrong way of praying for judicial remedy.

Natuhwera suggested that in any case the convict is found unable to repair the lives of the victims through reparation, the court can opt for the principle of complementarity under the Rome statute to seek support from the Trust Fund for Victims at the International Criminal Court (ICC).

Jacky Amusugut, a state attorney who also represented the Attorney General said it’s misleading to hold the government liable for compensation yet it’s the same state that ensured the convict is prosecuted.

But Caleb Alaka, Kwoyelo’s Defence lawyer argued that there is sufficient evidence to show that the government didn’t provide adequate protection to the majority of the victims and should be held accountable for compensation.

Alaka particularly noted that the government failed to protect Kwoyelo from being abducted at the young age of 12 adding that even after his abduction, it failed to rescue him from the LRA.  He said Kwoyelo is indigent and cannot compensate the victims.

“The accused has indicated he has no asset in the country, he has no source of income and has never had gainful employment. He is as poor as a church mouse,” he submitted.

Alaka told the court that it would be a mockery of justice to issue a court order in vain since the prosecution hadn’t produced an iota of evidence to prove the convict’s source of wealth.

Justice Stephen Mubiru, during the hearing however advised the victim’s counsel that the court can only grant enforceable remedies arguing that policy decisions are reserved for the parliament and executives.

The court also yesterday admitted an application from the Foundation for Justice and Development Initiative (FJDI) to join the reparation proceeding as a friend of the court. It however dismissed an amicus curiae application from the International Center for Transitional Justice (ICTJ) for breaching the fundamental principles of neutrality.

In his ruling on the ICTJ application, Justice Mubiru noted that the court had agreed on two principles of the applicant for having expertise in working in areas of reparation and having written much literature on the same subjects for many years. 

He however observed that the applicant highlighted their biased interest in joining the proceeding as an advocate for victims which contravenes the fundamental grounds for being a friend of the court.

Justice Michael Elubu adjourned the court to December 16 when the court returns to rule on the reparation order.