The Conviction and Sentencing of Ex-rebel, Thomas Kwoyelo, 15 Years On

[Emma Charlene Lubaale is a Ugandan Senior Lecturer in Law at the University of Greenwich in London, and a non-resident Research Professor at Rhodes University’s Faculty of Law in South Africa. Some of her recent publications focus on National accountability for international crimes in Africa and the intersection of gender and criminal justice in Africa.]

Introduction 

Thomas Kwoyelo was a mid-level commander in the Lord’s Resistance Army (LRA), a rebel group notorious for its brutal tactics in Uganda. Key figures in the LRA including Kwoyelo and Dominic Ongwen, were abducted as children. Despite their initial victimisation, Kwoyelo and Ongwen rose through the ranks to become commanders, participating in and orchestrating numerous atrocities. Kwoyelo was recently convicted and sentenced to 40 years in prison for war crimes and crimes against humanity. His trial marked the first time an LRA commander was prosecuted by Uganda’s judiciary. This case highlights two key issues: the trial’s length and its comparison to Dominic Ongwen’s case before the International Criminal Court (ICC). 

The Length of the Trial

The trial of Kwoyelo took place in Uganda’s International Crimes Division (ICD). It spanned 15 years due to legal, procedural, and logistical challenges. Captured in 2009, his trial began in 2019 after a lengthy pre-trial detention. Initial delays were caused by legal disputes over amnesty under Uganda’s Amnesty Act. The Covid-19 pandemic further delayed proceedings due to court and travel restrictions. Ensuring victim participation and addressing reparations added complexity. The 78 charges, including war crimes and crimes against humanity, required extensive preparation (Uganda v Thomas Kwoyelo, HCT-00-ICD-SC-02 OF 2010 hereinafter Kwoyelo Judgment). This involved gathering testimonies from numerous witnesses and survivors in remote areas. 

Kwoyelo was convicted in August 2024 and sentenced in October 2024, 15 years after his capture. The conviction was based on overwhelming evidence of his direct involvement in the crimes (Kwoyelo Judgment). Judges highlighted his prominent role in the LRA’s operations, including planning and executing attacks that caused significant loss of life and suffering. Kwoyelo’s successful prosecution in Uganda’s ICD highlights the potential for domestic courts to foster accountability for international crimes. His conviction and sentencing mark a landmark in justice for LRA victims, but the inordinate delay in rendering justice remains a concern. Domestic proceedings are crucial for accountability for international crimes, as the ICC is merely complementary to national jurisdictions (Preamble Rome Statute). However, the 15-year duration of the Kwoyelo trial raises fairness concerns for both victims and Kwoyelo. Barriers like the Covid-19 pandemic delayed proceedings, but even post-pandemic, there was a lack of urgency. Charges were only confirmed in December 2023. Uganda’s Constitution mandates timely justice in criminal matters (§126(2)(b)), but the 15-year wait for Kwoyelo’s victims suggests otherwise. This delay highlights the need to strengthen national accountability mechanisms, including robust legal frameworks and adequate resources for prosecuting international crimes.

Various international human rights treaties to which Uganda is a party including the International Covenant on Civil and Political Rights (ICCPR §14) and the  African Charter on Human and Peoples’ Rights (ACHPR § 7) guarantee the accused the right to be tried within a reasonable time. Uganda’s own Constitution guarantees the accused a “fair, speedy, and public hearing before an independent and impartial court” (§ 26(1). A 15-year wait to know one’s fate is far from speedy, clearly undermining Kwoyelo’s rights. While his crimes are indeed atrocious and demand accountability, the rights of the accused should not be sacrificed. The court deducted 15 years from his sentence for time spent in custody, meaning he will serve 25 years of a 40-year sentence (Kwoyelo sentencing Decision). However, this does not address the violation of his rights due to lengthy pre-trial detention. Kwoyelo’s case highlights the need for national criminal justice systems to prioritise the procedural rights of accused persons. 

How Kwoyelo’s Case Before the ICD Compares to Ongwen’s Case Before the ICC

While Kwoyelo’s trial marked Uganda’s inaugural prosecution for international crimes, it was the second instance of a Ugandan being convicted for LRA-related offences. The first was Dominic Ongwen, who was found guilty by the ICC in 2021 on comparable charges. In the decision of the Trial Judgement, which was confirmed by the Appeal Chamber, Ongwen was convicted of 61 counts of war crimes and crimes against humanity. Both Kwoyelo and Ongwen were abducted as children and forced into the LRA, later becoming commanders responsible for its atrocities. Their similar backgrounds raise questions about how Kwoyelo’s trial in Uganda compares to Ongwen’s at the ICC. 

Charges, Conviction and Sentence 

Both Ongwen and Kwoyelo faced numerous serious charges, but there were differences in the nature and number of these charges. Kwoyelo was initially charged with 78 counts of war crimes and crimes against humanity; 31 were dismissed, and he was acquitted of three murder charges (Kwoyelo Judgment pp. 201-210). He was ultimately convicted of 44 counts by the ICD, including murder, rape, enslavement, kidnapping, and pillaging (Kwoyelo Judgment pg.201-210). Ongwen, on the other hand, faced 70 counts of war crimes and crimes against humanity, including murder, rape, sexual slavery, forced marriage, torture, conscription, and using children under 15 in armed conflict. He was convicted on 61 counts by the ICC (Trial Judgment, para. 3116).

Although both individuals faced serious charges, Ongwen’s indictment encompassed a wider array of gender-based crimes and the use of child soldiers, indicative of his higher rank and broader command within the LRA compared to Kwoyelo, who was a mid-level commander. The limited gender-based charges against Kwoyelo also stem from challenges within Uganda’s legal framework for international crimes. Specifically, while Uganda’s International Criminal Court Act of 2010 incorporates the Rome Statute in Ugandan law, it could not be applied retroactively to Kwoyelo’s case. Consequently, certain crimes outlined in the Rome Statute, such as forced pregnancy for which Ongwen was convicted, could not be considered in Kwoyelo’s case due to the lack of a legal basis. These gaps highlight the crucial need for robust legislative frameworks for international crimes at the national level, as there is a direct link between the legal framework and accountability for the full spectrum of crimes committed by perpetrators. 

In terms of sentencing, Kwoyelo received a 40-year prison term, with the ICD considering his abduction as a child and his expression of remorse as mitigating factors. Ongwen, on the other hand, was sentenced to 25 years in prison by the ICC, which also considered his abduction and indoctrination. Despite facing more charges than Kwoyelo, Ongwen’s sentence was significantly lower. This raises questions, given that Ongwen was a senior commander leading the Sinia Brigade, one of the LRA’s four main brigades, which gave him substantial authority and responsibility over a large segment of the LRA’s operations. In contrast, Kwoyelo was a mid-level commander, serving in specialised roles such as commander of operations, director of military intelligence, and commander in charge of sick bays.

The disparity in their sentences is not solely based on the number of charges or the nature of their commands. Several factors, including the laws applicable to the courts exercising jurisdiction, contribute to this difference. Notably, Kwoyelo was tried by the ICD of the Ugandan High Court, while Ongwen was tried by the ICC. These two courts have different sentencing guidelines and considerations. For instance, the ICC’s maximum sentence is life imprisonment whereas Uganda’s criminal justice system allows for the death penalty. Thus, within this spectrum, a 40-year sentence for Kwoyelo could be seen as proportionate. However, these disparities in sentencing undermine consistency and fairness, which are crucial for maintaining public trust in the justice system. They highlight the need for harmonising sentencing practices for comparable charges between the ICC and national courts. Without such standardisation, accused persons might prefer to be prosecuted by the ICC rather than national courts, yet the ICC lacks the capacity to handle all cases. Therefore, more standardised sentencing practices between the ICC and national courts should be considered to reduce these disparities.

Defences 

Kwoyelo, like Ongwen, argued that he was abducted by the LRA as a child, indoctrinated, and forced to commit crimes under duress (Kwoyelo Judgment para 111). However, Uganda’s criminal law does not recognise duress as a defence for serious offences like murder, so the ICD did not consider it in Kwoyelo’s case. In contrast, the Rome Statute applicable to the ICC recognises duress as a defence. The ICC examined this in Ongwen’s case but found that he did not face imminent death or serious harm, thus rejecting the defence (Ongwen Trial Judgment, para. 2668). Both the ICC and ICD acknowledged the complex backgrounds of Kwoyelo and Ongwen, recognising their initial victimisation and subsequent roles as perpetrators, which influenced their sentencing as a mitigating factor. However, these factors did not absolve them of responsibility for their actions as adult commanders. 

The International Criminal Court Act of Uganda of 2010 (ICC Act) was not applied in Kwoyelo’s case because it was enacted after his crimes were committed, so Uganda relied on its national laws. The ICC Act incorporates the Rome Statute’s provisions on excluding criminal responsibility, meaning duress can be a defence in future cases if the criteria in Article 31(1)(d) of the Rome Statute are met. The ICC’s interpretation of this article is crucial as it sets precedent for national courts that have adopted the Rome Statute in their national laws. The ongoing controversy between the Ongwen and Al Hassan cases regarding the duress defence highlights the need for clarity. In Ongwen, the Trial Chamber (para. 2668) rejected the duress defence based on the interpretation it gave, while in Al Hassan, a separate opinion (para. 102) suggested it was wrongly applied in Ongwen, leading to Al Hassan’s acquittal on all gender-based crimes. Resolving these issues is important for consistent legal standards as national courts are often drawing on the approach of the ICC to prosecute crimes at the national level (see e.g. paras 217 and 222 of Kwoyelo case where reference was made to Ongwen case).  

Reparations 

The fact that both Ongwen and Kwoyelo were victims of the LRA raises a question on how courts should deal with their harm at the reparation level. Notably, both Kwoyelo and Ongwen testified that they were abducted before their teenage years while still in primary school, a factor considered by both the ICC and ICD in their sentencing. This consideration indicates that Kwoyelo and Ongwen are victims of crime, as their abduction and indoctrination were seen as mitigating factors. In addition, in its Reparation Order, the ICC acknowledged the “long-lasting consequences of material and moral harm” on child soldier victims. Expert evidence noted that high doses of traumatic exposure led to an “unusually high burden of mental disorders and other forms of intense suffering” (Reparation Order, paras 268-369). The Court also recognised that a “significant number” of abducted children in the LRA suffered from anxiety, depression, aggressive behaviours, PTSD, everyday distress, and spiritual disturbances (Reparation Order, paras 268-369). 

Despite the traumatic experiences Ongwen endured, he was not granted reparations for his childhood abduction. The ICC ordered reparations solely for the victims of his crimes. Similarly, in its December 2024 Reparation Judgment, the ICD awarded reparations to the 103 victims, excluding Kwoyelo. This raises the question of whether this outcome aligns with the legal frameworks of both the ICC and the ICD. The answer is affirmative. Under the ICC and ICD regimes, reparations are awarded against convicted persons (Rome Statute, Article 75, Ntaganda Reparation Order Addendum, para 17). Consequently, Ongwen and Kwoyelo could not receive reparations as victims in the same proceedings pertaining to crimes they were convicted of.  

With both the ICC and ICD handing down reparation orders for comparable harms in respect of LRA-related offences, an issue also arises as to how the ICC and ICD can complement each other to ensure effective implementation of these orders. On 28 February 2024, the ICC issued a Reparation Order of €52.4 million to benefit nearly 50,000 victims of Ongwen’s crimes. Similarly, in its Judgment on Reparations in December 2024 for up to 103 victims, the ICD ruled that “for each death, the government should pay Sh10 million, Sh4 million for each person who suffered bodily injuries, Sh3.5 million for each person who lost property including dwellings, livestock, or household goods and Sh5 million for each victim who suffered from sexual and gender-based crimes”.

The ICC in the Ongwen Reparation Order ruled that “domestic proceedings do not impact reparations before the Court” (para. 49). It however acknowledged the notion of complementarity, emphasising “that the Court’s reparations proceedings do not exist in isolation and are indeed part of the wider context of different national and international efforts to address the victims’ harm” (Reparation Order, paras 52-53). Effectively, the ICC acknowledged the significance and value of advancing towards a more integrated reparations process and system, expressing an intention to more prominently emphasise complementarity, which is crucial for the effective implementation of reparation orders, particularly for related offences and harms, as demonstrated in the case of the LRA atrocities. 

Conclusion

The conviction and sentencing of Kwoyelo underscore the opportunities, complexities and challenges of prosecuting international crimes at the national level. Despite the significant delay, his trial represents a landmark moment for Uganda’s judiciary in holding LRA commanders accountable. The comparison with Ongwen’s case at the ICC highlights differences in judicial processes and opportunities for complementarity.