In a ruling, Justice Duncan Gaswaga noted that since the accused has asserted the rights against self-incrimination by opting to give an unsworn statement, he loses the right to the assistance of the counsel although he gains the advantage of not being cross-examined.
Judges at the International
Crimes Division of the High Court have rejected an application by the lawyers of the former Lord’s Resistance Army
(LRA) rebel commander Thomas Kwoyelo seeking to question their client during his defence trial.
Kwoyelo’s defence Lawyer Caleb
Alaka on Monday sought the powers of the court sitting at the Gulu High Court Circuit
to allow the defence to intervene in guiding him as he puts up a defence
against war crimes and crimes against humanity indictment.
The application was made shortly
after Alaka told the four panel members of the justices of the ICD that their client
had chosen the unsworn statement as his mode of defence in the trial.
“The accused was given options as
it’s the practice on how he is going to give his defence. The accused intends
to give an unsworn statement,” Alaka submitted.
Under the criminal trial, an unsworn
statement is given without the obligation of an oath and a suspect who chooses
it is not subjected to cross-examination.
Alaka however told the court that
while the accused had chosen to present unsworn evidence, there was a need for
the court to make exceptional adjustments to allow the defence to offer
guidance due to the peculiar nature of the case.
Firstly, he reasoned that the
case’s background spans more than a decade, while there are over 50 state witnesses'
evidence submitted in court that can’t all be recalled by the accused without
being reminded.
Kwoyelo’s trial commenced in
November 2018 and was initially indicted of 93 counts of war crimes and crimes
against humanity charges allegedly committed between 1992 and 2005 in Kilak County,
Present day Amuru District.
The court however in December
2023 dropped 15 charges and confirmed 78 others to which he was asked to put up
a defence.
The ICD Deputy Registrar Harriet
Harty Hatanga on Monday noted that Kwoyelo would present 15 witnesses in his
defence in the ongoing trial.
According to Hatanga, the witnesses
included Kwoyelo himself, former LRA fighters, expert witnesses and community
members who believed in Kwoyelo’s innocence. She however said nine of the witnesses'
identities have been deducted for protection.
//Cue in: “The prosecution made…
Cue out:…who they are.”//
She noted that despite the
challenges experienced in the past, the case has now reached an advanced level that
awaits the closure of the defence presentation.
//Cue in: “It’s been a…
Cue out:…form of accountability.”//
William Byansi, the State
Prosecutor however during the court session objected to the application of the
defence arguing that the move offends the rules of procedure in the trial and
occasions prejudice to prosecution.
Byansi noted that it would be ideal for the
court within the rules to remind the accused of the indictment and evidence but
not the defence.
//Cue in: “there is no…
Cue out:…of the court.”//
In a ruling, Justice Duncan
Gaswaga noted that since the accused has asserted the rights against
self-incrimination by opting to give an unsworn statement, he loses the right
to the assistance of the counsel although he gains the advantage of not being
cross-examined.
“In this scenario, the accused
cannot have it both ways. The accused has chosen to make an unsworn statement;
he is restricted from seeking to be guided or assisted by the defence counsel.
this is the mandatory requirement of the law,” ruled Justice Gaswaga.
He noted that the court also found
no merit in the defence’s argument on limited time, arguing that firstly, the
defence seems to have looked at only the time the prosecution closed its case.
“Owing to the above, the court
cannot invoke its inherent jurisdiction where there is an express provision of
the law. In other words, rule 2 Sub-rule 3 and Rule 25 Sub-rule B are
inapplicable in light of the express provision of section 73 of the Trial Indictment
Act (TIA) regarding the mode of defence for an accused. For those reasons, this
application is disallowed,” he ruled.
The court was consequently
adjourned to Tuesday when Kwoyelo reappeared before the court for the defence
hearing.
