The lead defense lawyer, Caleb Alaka, told court that they were uncomfortable proceeding with the pre-trial hearing before a judge who is not a judge in the International Crimes Division of High Court.
The pre-trial of former Lord's Resistance Army commander, Thomas Kwoyelo has suffered another setback. Shortly after the commencement of the Pre-trial before the International Crimes Division of High Court sitting in Gulu on Wednesday, Kwoyelo's defense team challenged the legality of Justice, Suzan Okalany presiding over the proceeding.
The lead defense lawyer, Caleb Alaka, told court that they were uncomfortable proceeding with the pre-trial hearing before a judge who is not a judge in the International Crimes Division of High Court. Caleb said the rules of procedure of International Crimes Division of High Court bar a high court judge from presiding over the matter before the court.
He wondered whether Justice Suzan Okalany was a designated judge in the International Crimes Division of High Court.
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Nicholas Opiyo, another defense lawyer concurred with Alaka. He said in addition to the statutory question, the pre-trial could not proceed without further disclosure related to victim's participation and the nature of their complaints. Charles Dalton Opwonya, a sate brief and a member of Kwoyelo's Defense team disagreed with Alaka and Opiyo and asked court to disregard their concerns.
Opwonya said the pre-trial should proceed as agreed in August. He was supported by the Prosecution led by Charles Richard Kamuuli, saying the judge could preside over the matter since she is already a judge of the high Court.
As a result, Justice Suzan Okalany adjourned the house for an hour to rule on the matter. In her ruling, she said Article 139 of the Constitution of the Republic of Uganda empowers a High Court judge to handle all civil or criminal matters without any distinction.
She also explained that her role stop at the pre-trial as a bench of three other judges of the high Court have been lined up to handle the trial including the Principal Judge Yorokamu Bamwine and Justice Lydia Mugabe Ssali.
Justice Suzan Okalany therefore ruled that she is lawfully designated to preside over the proceedings of the court on the basis of her appointment by the Principal Judge, adding that there are no specific qualifications for ICD judges.
The Defense said it wasn't satisfied with the ruling and sought leave of court to Appeal the ruling in the Court of Appeal, saying proceeding would tantamount to miscarriage of justice. Court is scheduled to rule on the application later today.
Kwoyelo, who has spent about eight years on remand in Luzira Prison, faces charges related to war crimes and crimes against humanity he is alleged to have committed by serving in the rebel outfit.
He faces 12 confirmed counts of war crimes and crimes against humanity and 53 alternative charges he is alleged to have committed while fighting for the Lord's Resistance Army (LRA). The charges were slapped against him shortly after he was arrested in battle with Uganda People's Defense Forces -UPDF in Garamba National Park in the Democratic Republic of Congo in 2008.
He pleaded not guilty and is due to stand trial in October 2016. The pre-trial session is to generate consensus on major ingredients of the case to be decided during the full trial in October. Already, Court has granted leave to prosecution and counsel of victims to amend the indictment against Kwoyelo.