THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT GULU

[INTERNATIONAL CRIMES DIVISION]
HCT-00-ICD-SC-02 OF 2010

UGANDA ……………………………………………………………… PROSECUTOR

VERSUS

KWOYELO THOMAS alias LATONI …………………………….…… ACCUSED

BEFORE: 1. HON. MR. JUSTICE MICHAEL ELUBU (PRESIDING JUDGE)

2. HON. MR. JUSTICE DUNCAN GASWAGA
3. HON. MR. JUSTICE STEPHEN MUBIRU
4. HON. JUSTICE DR. BASHAIJA K. ANDREW
(ALTERNATE JUDGE)

REGISTRAR: HW JULIET HARTY HATANGA

REPRESENTATION:

PROSECUTION: 1. GEORGE WILLIAM BYANSI D/DPP

2. CHARLES RICHARD KAAMULI A/DPP
3. AKELLO FLORENCE OWINJI A/DPP
4. LILLIAN OMARA ALUM CSA

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DEFENCE: 1. CHARLES DALTON OPWONYA
2. CALEB ALAKA
3. EVANS OCHIENG
4. GEOFFREY BORIS ANYURU

VICTIMS: 1. MARY MAGDALANE AMOOTI

2. HENRY KILAMA KOMAKECH

ASSESSORS: 1. ODONGKARA FRANKLINE

2. AJOK NIGHTY
3. OCEN DANIEL

TRANSLATORS: 1. MR. ROBERT ADONGAKURU ROBERT

2. MR. OTTO DAVID LABEJA
3. MR. OCAN ROBERT

COURT CLERK: 1. MR. KITANDWE PAUL

RULING ON A NO CASE ANSWER

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1. Introduction

2. Kwoyelo Thomas alias Latoni (hereinafter referred to as ‘the accused’) is indicted in 93

Counts, which fall in three broad categories: (i) Crimes against humanity under
customary international law (CIL); (ii) War Crimes committed in violation of Article
3 common to the Geneva Conventions; and (iii) other serious crimes under the
Uganda Penal Code Act, Cap 120.

3. It is alleged that the crimes charged in this indictment were committed in the context of a
non-international armed conflict that occurred in Northern Uganda between the Lord’s
Resistance Army (hereafter referred to as ‘LRA’) together with associated local armed
units, and the Armed Forces of the Republic of Uganda, between the years 1987 and 2005.
It is also alleged that the intensity of those armed hostilities exceeded internal disturbances
and tensions, such as riots and isolated and sporadic acts of violence.

4. The prosecution alleges that in carrying out the protracted armed violence, the LRA had
well-structured armed forces. That the structure was under the overall leadership of Joseph
Kony, and had a sufficient degree of organization that operated in an organized,
hierarchical system of power with headquarters, divisions, brigades, battalions and
companies, and that each unit had a commander assigned to it. That Joseph Kony, the
commander-in-chief of the LRA, would generally communicate orders to other leaders
who passed them to the brigade commanders, who then communicated them to the
battalion commanders who in turn passed them on to their subordinates. That the LRA thus
had the ability to plan and execute sustained military operations for a long period of time.

5. Further, it is alleged that in the LRA, subordinates followed the orders of their superiors
almost automatically. The LRA fighters, conditioned by, and under threats of physical
punishment, obeyed superiors and followed orders. That the LRA maintained a violent
disciplinary system that guaranteed adherence to orders and rules. That the LRA was
composed of a sufficient number of fungible individuals capable of replacement to
guarantee that the orders of superiors were carried out if not by one subordinate, then by

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 another. The prosecution alleges that the accused was aware of these fundamental features
of the LRA, as an organized and hierarchical system of power.

6. The prosecution further alleges that between 1987 and 2005, the accused was at all material
times a member of the LRA, an organized armed faction that engaged in fighting the
Government of the Republic of Uganda. That he held a number of command positions,
and that due to his participation in numerous LRA operations, the accused was always in
the know of the factual circumstances that culminated into the existence of this non-
international armed conflict. That as such, a nexus existed between the armed conflict and
the acts of the accused, which amount to violations of Article 3 common to the Geneva
Conventions, and other serious violations of International Humanitarian Law and the
Penal Code Act.

7. That for instance, between 1992 and 2005, the accused was a military commander in the
LRA and held several positions including commander of Operations, Director of Military
Intelligence and In-charge of all Sick Bays. That most of the time during his operations,
the accused was based in Kilak hills located in the present day Amuru District. That his
areas of operation covered the whole of Kilak County and in these areas he was a
subordinate only to the overall leader of the LRA, Joseph Kony. The prosecution contends
that as such, for that period, the accused had effective command and control, or authority
and control, over his subordinates. That he mobilized his authority and power in the LRA
to secure compliance with his orders and he carried out and caused his subordinates to carry
out the conduct which amounted to the crimes stated in the indictment.

8. That his positon allowed the accused to exert control over the crimes charged as well as to
prevent or repress any conduct by his subordinates of which he disapproved. That his
subordinates complied with his orders as he had the power, inter-alia, to issue or give
orders. That he could also ensure compliance with the orders issued, to order forces or units
under his command, whether under his immediate command or at a lower level, to engage
in hostilities. That he could discipline any subordinate, and had the authority to send forces
to the site of hostilities and to withdraw them at any time. That despite the effective control

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 he held over his subordinates at the relevant time, he culpably failed to adopt necessary
and reasonable measures to prevent or punish their crimes.

9. The prosecution asserts that the LRA leadership including the accused shared a common
plan, purpose or design which was to take any action necessary to gain and exercise
political power and control over the territory of Uganda, in particular Northern Uganda.
That the modus operandi of the LRA included among others abduction, destruction of
property and killings in order to prevent or minimize resistance to their activities and to use
members of the population to provide support to the LRA. That between 1992 and 2005
the accused and his subordinates carried out several attacks in Kilak County formerly of
Gulu District, now the present day Amuru District. That all the attacks which took place in
Kilak County, now the subject of these charges in the indictment, were either carried out
by the accused, under his command, or by his subordinates with his full knowledge and
authority. The offences or the conduct alleged herein were committed within the territory
of the Republic of Uganda.

10. The prosecution contends that from 1987 to 2005, the overall objective of the LRA was to
overthrow the Government of Uganda through armed rebellion and to procure resources to
pursue their criminal activities. That to achieve these objectives, the LRA adopted a
number of policies that were implemented throughout the organization, such as launching
attacks on civilians, including those living in protected internally displaced persons’ camps
(IDP camps). That male abductees were to be conscripted into their fighting ranks, and
female abductees to serve primarily as domestic servants, sex slaves and forced exclusive
conjugal partners. That the conduct and acts that form the basis for the charges in this
indictment were committed between 1992 and 2005, as part of a widespread or systematic
attacks directed against the civilian population of Northern Uganda. All acts and the
conduct imputed to the accused were sufficiently connected to those attacks so as to fulfil
the requirement of nexus between the acts of the accused and the attacks.

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11. The defence

12. For their part, joint counsel for the defence submitted that the prosecution has not
established a prima facie case in all the three categories of crimes charged in the indictment
to warrant the accused person to be called to his defence.

13. On the 14 counts of crimes as violations of Article 3 common to the Geneva Conventions
under Customary International Law, counsel argued that in all instances, there was
insufficient evidence to establish a link or 'nexus' between the accused and the acts
attributed to him. Further, that he never knew of, or ordered the alleged attacks.

14. That the prosecution failed to prove the essentials ingredients of the offences in all those
counts under that particular category of the indictment.

15. Regarding the 59 Counts of other serious crimes under the Penal Code Act, counsel for
the defence submitted that the essential ingredients of the offences were also not
sufficiently established. In particular, that the prosecution failed to prove the essential
ingredient of the accused’s participation in the alleged crimes. That the accused was never
properly identified by the witnesses and in addition, that the evidence of the prosecution
witnesses was so contradictory; which rendered it practically impossible to be relied on to
prove any of the ingredients of the offences charged in that category. That some of the
evidence bearing on the offences was so weak given that some of the witnesses could not
recall what exactly transpired since it was almost 18 years after the event that they recorded
statements.

16. As regards the 20 Counts in the category of offences under Customary International Law
(CIL) in the indictment, the defence raised the issue pertaining to the principle of legality
and a fair trial under Article 28 (12) of the Constitution of the Republic of Uganda, 1995.
The main thrust of their argument is that crimes against humanity have been codified by
Uganda and defined under Section 8 of the International Criminal Court Act No. 11 of
2010. That by the time the alleged offences were committed, the said Act had not been
enacted. That since Act No. 11 of 2010 does not have specific provisions for its

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 retrospective application, the alleged crimes against humanity allegedly committed before
its passage cannot be sustained against the accused given the principle against
retrospectivity of legislations. Counsel submitted that on all the counts, the accused be
found to have no case to answer and he should be acquitted.

17. The finding of a case / no case to answer.

a. The procedural requirements.

18. Regulation 8 (1) of The High Court (International Crimes Division) Practice
Directions, 2011, requires the application to the instant case, of the rules of procedure and
evidence applicable to criminal trials in Uganda. Section 73 of The Trial on Indictments
Act provides that when the evidence of the witnesses for the prosecution has been
concluded, the court, if it considers that there is no sufficient evidence that the accused
committed the offence, shall, after hearing the advocates for the prosecution and for the
defence, record a finding of not guilty (see Wibiro alias Musa v. R [1960] E.A. 184 and
Kadiri Kyanju and others v. Uganda [1974] HCB 215). However, if it considers that
there is sufficient evidence that the accused person committed the offence, it is required to
call on the accused person to enter his defence and inform the accused person of his rights
in doing so.

a. The evidential requirements.

19. A prima facie case is established when the evidence adduced is such that a reasonable
tribunal, properly directing its mind to the law and evidence, would convict if no evidence
or explanation was set up by the defence (see Ramanlal Trambaklal Bhatt v. R. [1957]
EA 332). The evidence adduced at this stage, should be sufficient to require the accused to
offer an explanation, lest he runs the risk of being convicted. Therefore, a prima facie case
cannot be established by a mere scintilla of evidence or by any amount of worthless,
discredited prosecution evidence. The prosecution at this stage is not required to have

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 proved the case beyond reasonable doubt, since such a determination can only be made
after hearing both the prosecution and the defence.

20. There are mainly two considerations justifying a finding that there is no prima facie case
made out as stated in the Practice Note of Lord Parker which was published and reported
in [1962] ALL E.R. 448 and also applied in Uganda v. Alfred Ateu [1974] HCB 179, as
follows:

a. When there has been no evidence to prove an essential ingredient in the alleged
offence, or
b. When the evidence adduced by prosecution has been so discredited as a result of
cross examination, or is manifestly unreliable that no reasonable court could safely
convict on it.

21. The preliminary objections.

22. As part of their submissions of a no-case-to-answer, counsel for the accused contended that
the indictment is bad in law in respect of those counts preferred as constituting conduct in
violation of Article 3 common to The Geneva Conventions, as well as those constituting
crimes against humanity in violation of Customary International Law.

a. The contextual nature of the armed conflict.

23. All four Geneva Conventions although regulating mostly inter-state armed conflicts, in
their Common Article 3 extend general coverage to armed conflicts “not of an international
character,” occurring within the territory of a single state and in which the armed forces of
no other state are engaged against the central government. On 13th March, 1991, Uganda
acceded to the Additional Protocol II to the Geneva Conventions, which defines such
conflicts as those which “take place in the territory of a High Contracting Party between
its armed forces and dissident armed forces or other organised armed groups which, under

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 responsible command, exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this Protocol.”

24. However, the Courts have held that this territorial element is not necessary (see ICTY,
DuŠko Tadic Case, (“Prijedor”), Judgment of 7 May 1997, Case No. IT-94-1- T, pp.
239-240, para. 654; ICTY, KupreŠki et al Case (“LaŠva Valley”), Judgment of 14
January 2000, Case No. IT-95-16-T, p. 220, para. 552; and ICTY, Tihomir BlaŠki Case
(“LaŠva Valley”), Judgment of 3 March 2000, Case No. IT-95-14-T, p. 69, para. 205). It
is sufficient that forces, which although not those of the legitimate government, have de
facto control over, or are able to move freely within, defined territory without international
recognition or formal status of a de jure state.

25. The evidential factors for determining whether or not the armed conflict threshold test has
been crossed in “not of an international character” situations, were decided in Prosecutor
v. Ramush Haradinaj et. al., case No. IT-04-84-T, Judgement of 3 April 2008, paras. 49
and 60 and The Prosecutor v. Dusko Tadić, IT-94-1-AR72, Appeals Chamber, Decision,
2 October 1995, para. 70, to include:

26. “The number, duration and intensity of individual confrontations; the type of
weapons and other military equipment used; the number and calibre of munitions
fired; the number of persons and type of forces partaking in the fighting; the number
of casualties; the extent of material destruction; and the number of civilians fleeing
combat zones.”

27. The defining characteristics therefore are: (i) sustained protracted armed violence taking
place; (ii) conducted by dissident armed forces or other organised and well-disciplined
forces or groups under a responsible command; and (iii) not involving the armed forces of
any other State.

28. As regards the conflict at hand, considering the intensity of combat and the level of
organisation of the Lord’s Resistance Army, the calibre of weapons involved, the armed

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 conflict exceeded isolated and sporadic acts of violence, internal disturbances, riots or
tensions. The nature of this conflict triggered the application of International Humanitarian
Law.

29. A non-international armed conflict can be internationalised if a non-state armed group in

fact acts under the control or on behalf of a foreign state. Although there is some evidence
suggesting that on diverse occasions during the conflict, the Lord’s Resistance Army
received material support from the Republic of Sudan, there is no evidence to show that
the said state attained such a degree of direction and control over the Lord’s Resistance
Army, as to be considered a military intervention by that state itself. For all intents and
purposes, the armed conflict prima facie retained its non-international character.

a. The principle of legality in relation to crimes against humanity in

contravention of customary international law.

30. In the category of violations of Article 3 common to The Geneva Conventions pursuant
to customary international law, the accused stands indicted with the offences of: murder in
Counts 2, 16, 21, 51 and 75; Pillaging in Counts 13 and 70; Cruel treatment in Counts 43,
48 and 72; Violence to life and person in Counts 87 and 92; Hostage taking in Counts 4
and 32; Outrages against personal dignity in Counts 44, 49, 73, 82, 86 and 91.

31. In the category of crimes against humanity in violation of customary international law, the
accused stands indicted with the offences of: Murder in Counts 1, 15, 20, 50 and 74; Other
Inhumane Acts in Counts 47 and 71; Torture in Counts 85 and 90; Rape in Counts 84 and
89; Enslavement in Count 81; and the offence of Imprisonment in Count 31. It is defence
counsel’s contention that those counts contravene the principle of legality in so far as they
arise under The International Criminal Court Act, No. 11 of 2010 which came into force
on 25th June, 2010, long after the period during which the accused is alleged to have
committed these offences.

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32. The principle of legality is often referred to as the principle of “nullum crimen sine lege,”
which translates to “no crime without law.” It states that no one can be punished unless
there is a clear and definite law that provides for such punishment. According to Article 28
(7) of The Constitution of the Republic of Uganda, 1995, no person may be charged with
or convicted of a criminal offence which is founded on an act or omission that did not at
the time it took place constitute a criminal offence. Similarly, except for contempt of court,
no person shall be convicted of a criminal offence unless the offence is defined and the
penalty for it prescribed by law (see Article 28 [12]). The principle helps to ensure that the
state cannot simply create new offences retroactively to punish individuals for conduct that
was not previously prohibited.

33. The Courts in Uganda have tended to interpret those provisions as requiring prosecution
on the basis of written (lex scripta) pre-existing criminal norms approved by the State (lex
praevia), defining prohibited conduct and setting out the related sentence (lex certa), hence
decisions such as those that require an offense to be defined and penalty for it prescribed
(see Salvatori Abuki v. Attorney General, S.C. Constitutional Petition No. 2 of 1997).
It is a constitutional imperative that a criminal offence is specifically defined and that it
should be clear to all what its elements are. The said elements or ingredients should not be
ambiguous or vague or too broad as to defy specific definition (see Tumwesige Francis v.
Attorney General, Constitutional Petition No. 36 of 2018). Fair notice to the citizen
comprises a formal aspect, an acquaintance with the actual text of a statute and a
substantive aspect, an understanding that certain conduct is the subject of legal restrictions
(see Andrew Karamagi and another v. Attorney General, Constitutional Petition No.
5 of 2016).

34. However, the concept of law comprises written as well as unwritten law. Although the
majority of international crimes forming part of the law of armed conflict (jus in bello)
reflected in war crimes have been established by international conventions, some have
emerged from customary international law. While both Article 123 (2) of The
Constitution of the Republic of Uganda, 1995, and Section 4 of The Ratification of
Treaties Act, Cap 204 necessitate ratification and domestication of treaty-based law

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 before its application in Uganda, this limitation does not apply to that part of customary
international law that is not treaty-based. For example, the peremptory norms of
international law, in so far as they cannot be derogated from or waived by states, have
direct application domestically without the necessity of ratification.

35. According to Articles 53 and 64 of The Vienna Convention on the Law of Treaties,
those treaties that are in conflict with general international law norms accepted and
recognized by the international community of States as a whole, as norms from which no
derogation is permitted, and which can be modified only by a subsequent norm of general
international law having the same character, are void. Consequently, if a new peremptory
norm of general international law emerges, any existing treaty which is in conflict with that
norm becomes void and terminates. In the same vein, domestic law, including
constitutional provisions of states, that are inconsistent with jus cogens norms, may not
stand in the way of application of peremptory norms by the international community.

36. The concept of jus cogens is by definition, a set of rules from which states may not
derogate. The concept recognises that there is a fundamental core group of international
norms from which sovereigns may not derogate. Jus cogens violations, at a minimum,
include: the prohibitions against genocide; slavery or slave trade; murder or disappearance
of individuals; torture or other cruel, inhuman, or degrading treatment or punishment;
prolonged arbitrary detention; and systematic racial discrimination. Jus cogens norms are
also referred to as peremptory norms, and they are peremptory because they prevail over
and invalidate international agreements and other rules of international law in conflict with
them. Jus cogens norms are binding on all states whether or not the states consent to them.

37. International law only criminalises serious acts rather than any violation of international
human rights law as an international crime. Jus cogens norms protect universally observed,
fundamental human rights and so do not rely on the consent of states. Therefore, Article
123 of The Constitution of the Republic of Uganda, 1995 (which within the domestic
legal order places the democratic will of the people above international law) requiring the
ratification and domestication of treaties, does not apply to Jus cogens norms violations.

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 Similarly, The Geneva Convention (IV) Relative to the Protection of Civilian Persons
in Time of War, of 12 August 1949 specifically provides that:

Article 146 — Each High Contracting Party shall be under the obligation to
search for persons alleged to have committed, or to have ordered to be
committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts

Article 158 - The denunciation shall have effect only in respect of the denouncing
Power. It shall in no way impair the obligations which the Parties to the conflict
shall remain bound to fulfil by virtue of the principles of the law of nations, as they
result from the usages established among civilized peoples, from the laws of
humanity and the dictates of the public conscience.

38. To prove the existence of a customary rule, the two constituent elements of the custom
must be established, namely, the existence of sufficiently consistent practices (material
element), and the conviction of states that they are bound by this uncodified practice, as
they are by a rule of positive law (mental element). “Violations of the laws and customs of
war,” are considered to form part of customary international law (see Judicial Decisions:
International Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, 41
AM.J. IN'L L. 172 (1947). States have a duty to exercise jurisdiction over offences
prohibited by peremptory norms of international law (jus cogens), when committed by their
nationals or on a territory under their jurisdiction. It was held in the Case of Almonacid-
Arellano et al v. Chile, IACtHR, Judgment of September 26, 2006, para 151 – 153 that

“the State may not invoke the statute of limitations, the non-retroactivity of
criminal law or the ne bis in idem principle to decline its duty to investigate
and punish those responsible ... crimes against humanity are intolerable in the
eyes of the international community and offend humanity as a whole ...
crimes against humanity is a norm of General International Law (jus cogens),
which is not created by said Convention, but it is acknowledged by it.”

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39. The concept of jus cogens reflected in Article 158 of The Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War, was indirectly recognised
in Uganda by The Geneva Conventions Act, Cap 363, which it domesticated the
convention. The Act rendered punishable in Uganda, violations of jus cogens norms,
practices and usages recognised and established among civilized peoples, from the laws of
humanity, and the dictates of public conscience, by practices which encourage, or condone:
(a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of
individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e)
prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent
pattern of gross violations or internationally recognised human rights, and the customs of
war under customary international law. The principle of nullum crimen is not infringed
where the conduct in question would universally be acknowledged as wrongful and there
is doubt only in respect of whether it constitutes a crime under a particular system.

40. Moreover, the repression of serious violations of international humanitarian law is essential
for ensuring respect for this branch of law. This is particularly in view of the gravity of
certain violations, qualified as war crimes, which it is in the interest of the international
community as a whole to punish. Although there has been some limited form of
codification of international criminal law in the statutes of the various international
criminal tribunals, for violations of jus cogens norms, such codification is in essence not
legislation of such crime into existence, but rather a recognition of crime already existing
as such in customary international law. They are a codification of rules of international
humanitarian law that are declaratory of customary law applicable to international armed
conflicts.

41. Such treaties do not set down norms of international law or legislate with respect to those
norms. They simply empower the respective tribunals to apply existing customary
international humanitarian law. A narrow interpretation of grave breaches limits the scope
under which alleged perpetrators could be held criminally liable for violations of
international humanitarian law, yet the object and purpose of international humanitarian
law, is to protect civilians to the maximum extent possible. There is no doubt that crimes

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 against humanity form part of customary international law. They found expression in
Article 6 (c) of the Nuremberg Charter of 8th August, 1945; Article II (I) (c) of Law No.
10 of the Control Council for Germany of 20th December, 1945 and Article 5 (c) of the
Tokyo Charter of 26th April 1946, three major documents promulgated in the aftermath
of World War II (see Prosecutor v. Dusko Tadic aka "Dule" (Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, International Criminal
Tribunal for the former Yugoslavia (ICTY), 2 October 1995 para 76). As a matter of
customary international law, the term “crimes against humanity” includes a range of
serious human rights abuses committed as part of a widespread or systematic attack by a
government or organization against a civilian population, while war crimes are “serious
violations of the customs of war.” Both represent the determination of civilized man to
value human life and dignity and to lessen suffering.

42. Therefore, objection to the prosecution of war crimes and Crimes against humanity as jus
cogens, at any level by any jurisdiction is incompatible with the character of the norms.
National justice must be the first bulwark against violations of humanitarian law. The fact
that there is not a strong record of national investigation and prosecution of international
crimes is not an obstacle for the formation and the identification of customary law. The
principle of legality requires that prosecution and punishment be based upon clear
provisions of international law at the time the crime was committed. The requirements of
both specificity and non-ambiguity in domestic prosecutions are met by the jurisprudence
of the international tribunals that is declaratory of customary international law, so long as
those decisions do not criminalise conduct which, at the time it was committed, could
reasonably have been regarded as legitimate. General principles of law derived from
national laws, judicial decisions and the teachings of the most highly qualified publicists
of the various nations,’ are subsidiary sources.

43. No doubt, prohibitions against the non-retroactive application of criminal sanctions and
against ex post facto criminal laws are fundamental principles of legality. However, the
rules of international criminal law emanate from sources of international law (such as
treaties, customary law, state practice, opinio juris, the general principles of law as

15
 recognized by civilized nations). The concept of penal sanctions was definitively
incorporated into customary international criminal law after the Second World War, when
the Nuremberg and Tokyo Tribunals were established. The penal sanctions contained in
the treaties which set up the two tribunals were a reflection of the general principles of law
as recognized by civilized nations at the time.

44. While according to Article 27 of The Nuremberg Charter (Agreement for the Prosecution
and Punishment of the Major War Criminals of the European Axis, of 8th August, 1945)
and Article 3 (a) of Law No. 10 of the Control Council for Germany (Punishment of
Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, of 20th
December, 1945), the Tribunals had the power to impose upon an accused, on conviction,
the death penalty or such other punishment as determined by them to be just. The
international community has since removed capital punishment from the scale of sanctions,
a significant development since the Nuremberg and Tokyo trials. The practice of the
international tribunals as appropriate, has been to have recourse to the practice regarding
prison sentences in preceding International Criminal Tribunals and the relevant national
courts. Consequently, by virtue of the general principles of law as recognized by civilized
nations, the harshest sentence that can be handed down under customary international
criminal law for a person convicted of crimes against humanity, is a term of life
imprisonment when justified by the extreme gravity of the crime and the individual
circumstances of the convicted person.

45. Since customary international law has to be assessed as of the date of commission of the
offences, the fact that The International Criminal Court Act, No. 11 of 2010 was enacted
subsequent to the material dates specified in the indictment, limits its weight and usefulness
as a source of customary international law at the time the crimes were committed. The
counts by which the accused stands indicted with offences that constitute crimes against
humanity are understandably not stated to be in contravention of The International
Criminal Court Act, 11 of 2010, but rather under customary international law. That statute
was enacted to give effect to The Rome Statute of the International Criminal Court; to
provide for offences under the law of Uganda corresponding to offences within the

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 jurisdiction of that court, and for connected matters. While codification ordinarily indicates
a legislative intent that the statute should totally supersede and replace the common law
dealing with the subject matter, The International Criminal Court Act, No. 11 of 2010
was never intended to be a codification of customary international criminal law applicable
in Uganda.

46. Even if The International Criminal Court Act had been intended to be revisionary, it is
trite that codifications generally leave untouched common law in areas falling outside the
scope of the statute. In any event, parallel with the movement for the codification of
international criminal law, custom and treaties may co-exist on the same subject matter.
The two sources do not supplant each other and have separate methods of application.
Additionally, the scope and definition of international crimes in national law might not be
the same as that under customary international law. The definitions of crimes in statutes
and international instruments may be broader or narrower than that in custom. In particular,
this Act No 11 of 2010 is not declared to be an exhaustive codification of existing
customary international law regarding war crimes and of crimes against humanity. In the
circumstances, it would be a mistake to regard The International Criminal Court Act,
No. 11 of 2010 as displacing the existing prior sources of customary international law.
Customary international law continues to govern offences which are not stipulated by the
Act.

47. As has been demonstrated above, the principle of nullum crimen sine lege is not violated
by incorporating into the indictment, those prohibitory norms which are beyond doubt, part
of customary international criminal law, since customary international criminal law,
regarding war crimes and crimes against humanity, existed long before its early partial
codification during the Nuremberg and Tokyo trials, and has since the conclusion of those
trials evolved to establish the harshest sentence for such violations as a term of life
imprisonment.

48. For the above discourse, the objection raised by counsel for the defence is accordingly
overruled.

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49. Counts in respect of which the evidence is insufficient or lacking.

a. War Crimes committed in violation of Article 3 common to The Geneva

Conventions.

50. In Counts 4 and 32 of the indictment, the accused is charged with the offence of Hostage
Taking as a violation of Article 3 (1) (b) Common to The Geneva Conventions pursuant
to customary international law. For there to be a case to answer established against the
accused, the prosecution must make out a prima facie case on each of the following
essential ingredients: (i) unlawful deprivation of freedom of a victim; (ii) wantonly and
sometimes under threat of death; (iii) taking no active part in the hostilities; (iv) to obtain
some advantage or obtain some undertaking from another; and (v) the participation of the
alleged perpetrator.

51. As regards Count 4, the prosecution adduced the evidence of C4, C5, C6, C7, C19, C20,
Odong Menya, Okot Charles, Ojok Patrick and Ogena Simon, all of Abera village,
Parubanga Parish in a bid to sustain the above elements. Save for the fourth element, there
was no evidence led to prove or show that the victims named herein above were taken
hostage with the intention of obtaining some advantage or undertaking from a third party.

52. Similarly, under Count 32, the prosecution adduced the evidence of Rodento Ochola,
Masimo Oboma, Oyet Samuel, Ocii Doctor, Sabino Obwoli Oola, Oryem Quirino, Okot
Antonio, Okoya Maurensio and Onai, to establish all the elements of this offence. Save for
the fourth element of obtaining some advantage or undertaking from a third party, this
count should also fail.

53. We therefore find that a prima facie case has not been established in respect of the above
two Counts.

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54. Other serious offences under The Penal Code Act.

55. In Counts 18, 19, 25, 27, 28, 29, 30 and 59 of the indictment, the accused is charged with
the offence of Murder. For a prima facie case to be established for the offence of murder,
the prosecution must the following essential ingredients: (i) death of a human being
occurred; (ii) the death was caused by some unlawful act; (iii) that the unlawful act was
actuated by malice aforethought; (iv) and that the accused participated.

56. As regards Counts 18 and 19, the victims were Okeny Wilson and Ojok Martin,
respectively. The evidence adduced by the prosecution shows that some time in the month
of February, 1996, the two had been abducted from around Paibi-Atiak road, Parubanga
parish in the presence of PW5 (E1’s brother). They were never seen again. Apart from the
evidence of PW5, no other evidence was called by the prosecution. The other three
elements do not have any evidence to sustain them.

57. The accused is further charged with the murder of Obalo Bicensio in Count 25; Arop
Jerimiah in Count 27; Obol Vincent in Count 28; Arop Daniel in Count 29; and one Charles
in Count 30. This is alleged to have taken place during the month of February 1996. All
these victims were from Abera village, Parubanga parish, Pabbo sub-county. In addition,
the accused was charged in Count 59 with the murder of Oyela Betty of Oboo parish,
Lamogi sub-county which occurred on the 16th of May, 2004. It should be noted that in all
these counts, apart from the prosecution naming the victims and their respective places of
abode in the indictment, no other evidence was adduced to establish the offences. The
Court finds that the prosecution has not established a prima facie case in respect of these
counts.

58. In Counts 7, 9 and 38 of the indictment, the accused is charged with the offence of Kidnap
with intent to murder. For there to be a case to answer made out against the accused, the
prosecution must establish a prima facie case on each of the following essential ingredients:
(i) unlawful taking or abduction of the victim; (ii) by the use of force, fraud, or coercion;

19
 (iii) with the intention of killing/exposure of the victim to death; and (iv) the accused
participated.

59. It was alleged in Counts 7, 9 and 38, that Menya Odong, Ongom s/o Omoyo and Oryem
Quirino, respectively, were the victims who had been kidnaped with intent to murder. All
the said victims were from Abera village, Parubanga parish. The court has not found any
iota of evidence to prove any of the elements of the offence in respect of these counts. The
prosecution has not established a prima facie case in respect of these three counts.

60. In Count 83 of the indictment, the accused is charged with the offence of Procuration of
unlawful carnal knowledge. For there to be a case to answer made out against the accused,
the prosecution must establish the following essential ingredients: (i) the victim is under
the age of 21 years; (ii) persuasion or invitation of the victim (iii) for having carnal
knowledge, perpetration (iv) by the accused or other men. It is alleged that the victim was
TR (a protected witness) of Perecu village, Parubanga parish. The prosecution led the
evidence of PW 25 (the victim) to prove the first, third and fourth essential elements of the
offence. However, the second essential element of persuasion or invitation is lacking, as
there was no evidence led to establish it. No prima facie case in respect of this count has
been established.

61. The court also noted from the indictment that Count 46 was a repetition of Count 45 which
has already been dealt with. For avoidance of doubt, no finding has been made in respect
of Count 46.

62. Counts in respect of which the prosecution has established a prima facie case.

a. War Crimes committed in violation of Article 3 common to The Geneva

Conventions.

63. In Counts 2, 16, 21, 51 and 75, the accused was indicted with the offence of Murder as a
violation of Article 3 (1) (a) Common to The Geneva Conventions pursuant to customary

20
 International law. The essential elements for this offence are: (i) an armed conflict not of
an international character; (ii) there were acts or omissions causing death; (iii) that the acts
were committed wilfully; (iv) on victims who were taking no active part in the hostilities;
(v) that there was a nexus between the acts or omissions of the perpetrator and the armed
conflict.
64. After applying the above test to the evidence on record, the court finds that there is a case
to answer in respect of Counts 2, 16, 51 and 75. With regard to Count 21, the evidence
adduced supports a case to answer only in respect to the following victims: Aceng
Christine, Loum Acupale, Ngwe Julio, Gwok Paulo.

65. In Counts 13 and 70, the accused was charged with the offence of Pillaging as a violation
of Article 3 (1) (a) Common to The Geneva Conventions pursuant to customary
International law. The essential elements for the offence are: (i) that the perpetrator
appropriated certain property; (ii) he did so without the consent of the owner; (iii) it was
done in the context of, and associated with, an armed conflict not of an international
character; (iv) the appropriation was not justified by military necessity; and (v) it involved
grave consequences for the victims. Having carefully applied the test laid out above, the
Court finds that there is a case to answer in respect of both counts.

66. In Counts 43, 48 and 72, the accused was charged with the offence of Cruel Treatment as
a violation of Article 3 (1) (a) Common to The Geneva Conventions pursuant to
customary International law. The following are the essential elements of this offence: (i)
that there was an intentional act or omission; (ii) which caused serious mental or physical
suffering; (iii) that the victim was not involved in the armed conflict; (iv) the perpetrator
partipated. The court finds that a prima facie case case has been established in respect of
all three counts.

67. In Counts 87 and 92, the accused was indicted with the offence of Violence to life and
person, as a violation of Article 3 (1) (a) Common to The Geneva Conventions pursuant
to customary international law. The essential elements for the offence violence to life under
customary international law are that: (i) there was an intentional act or omission such as

21
 murder of all kinds, mutilation, cruel treatment, rape and torture; (ii) affecting the physical
or mental well-being of the victim; (iii) who was not taking an active part in the hostilities;
(iv) by the perpetrator. The court has found that the accused has a case to answer in respect
of both counts.

68. In Counts 44, 49, 73, 82, 86 and 91, the accused was charged with the offence of Outrages
against personal dignity as a violation of Article 3 (1) (a) Common to The Geneva
Conventions pursuant to customary International law. The essential elements to establish
this offence are that: (i) there was a serious humiliation, degradation or a serious attack on
the human dignity of the victim; (ii) with the knowledge of the possibility of that effect;
and (iii) by the pepetrator. The court has found that there is a case to answer in respect of
all the six counts.

69. Crimes against humanity under customary international law.

70. In Counts 1, 15, 20, 50 and 74, the accused is charged with the offence of Murder as a
crime against humanity pursuant to customary international law. The essential elements of
the offence are that: (i) the perpetrator killed one or more persons; (ii) as part of a
widespread or systematic attack directed against a civilian population; (iii) the perpetrator
knew or had knowledge or intended that it was part of a widespread attack against the
civilian population. After applying the tests above to the evidence adduced in this part, the
court finds that there is a case to answer in respect of Counts 1, 15, 50 and 74. As for Count
20, the evidence adduced can only support a case to answer in respect to the following
victims: Aceng Christine, Loum Acupale, Ngwe Julio and Gwok Paulo.

71. In Counts 42, 47 and 71, the accused was charged with the offence of other inhumane acts
as a crime against humanity pursuant to customary international law. The essential
elements required to establish this offence are that: (i) great suffering, or serious injury was
inflicted by an inhumane act; (ii) it was done under the control of the perpetrator; (iii) as
part of a widespread or systematic attack directed against a civilian population. The court

22
 finds that there is sufficient evidence to establish a prima facie case in respect of all the
counts.

72. In Counts 85 and 90, the accused was charged with the offence of Torture as a crime against
humanity pursuant to customary international law. The essential elements of this offence
are that: (i) the perpetrator inflicted severe physical or mental pain or suffering on someone
under the control of the perpetrator; (ii) for any reason based on discrimination of any kind;
(iii) it was not inherent or incidental to lawful sanctions; and (iv) it was part of a widespread
or systematic attacks directed against a civilian population. The court finds that there is a
case to answer in respect of both counts.

73. In Counts 84 and 89, the accused was charged with the offence of Rape as a crime against
humanity pursuant to customary international law. The essential elements for this offence
are that: (i) the perpetrator invaded any part of the body of a person resulting in penetration
of any part of the body of the victim with a sexual organ, or with any object; (ii) that it was
done by force, or by threat of force or coercion; (iii) it was part of a widespread or
systematic attack directed against a civilian population; and (iv) that the perpetrator knew
that it was part of a widespread or systematic attacks on the civilian population. This court
finds that there is a case to answer on both counts.

74. In Count 81, the accused is charged with the offence of Enslavement as a crime against
humanity pursuant to customary international law. The essential elements of this offence
are that: (i) the perpetrator exercised the powers attached to the right of ownership over the
victim; (ii) it was part of a widespread or systematic attack directed against a civilian
population; and (iii) that the perpetrator knew that it was part of a widespread or systematic
attacks on the civilian population. This court finds that there was a case to answer on both
counts.

75. In Count 31, the accused is charged with the offence of Imprisonment as a crime against
humanity pursuant to customary international law. The essential elements of this offence
are that: (i) the perpetrator deprived the victim of physical liberty; (ii) in circumstances that

23
 constituted a violation of fundamental rules of international law; (iii) it was part of a
widespread or systematic attack directed against a civilian population; and (iv) that the
perpetrator knew that it was part of a such a widespread or systematic attacks on the civilian
population. This court finds that there was a case to answer on this count.

76. Other serious offences under The Penal Code Act.

77. In Counts 3, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 52, 53, 54, 55, 56, 57, 58, 59, 60,
61, 62, 63, 64, 65, 66, 67, 68, 69, 76, 77, 78, 79 and 80, the accused is charged with the
offence of Murder c/s 188 and 189 of The Penal Code Act. The essential elements of this
offence have been outlined above. Out of these 36 Counts, this court finds that a prima
facie case has been established in respect of only 28 Counts namely 3, 17, 22, 23, 24, 26,
52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 76, 77, 78, 79 and 80.

78. In Count 45, the accused is charged with the offence of Attempted Murder contrary to
section 204 (a) of The Penal Code Act. The essential elements of the offence are: (i) a
substantial or direct act done towards killing another person; (ii) with the intention of
killing that person; and (iii) with the participation of the accused. This court finds that a
prima facie case has been established in respect to this count.

79. In Counts 5, 6, 7, 8, 9, 10, 11, 12, 33, 34, 36, 37, 38, 39, 40 and 41, the accused is charged
with the offence of Kidnap with Intent to Murder contrary to sections 243 (1) (a) of the
Penal Code Act. The essential elements of this offence are that: (i) there was the unlawful
taking of the victim; (ii) the taking was by the use of force, fraud, or coercion; (iii) with the
intention of killing or exposing the victim to death; and (iv) that the accused participated.
Out of the 16 Counts charged, the court finds a prima facie case has been estrablished in
respect of 14 counts namely: Counts 5, 6, 8, 10, 11, 12, 33, 34, 36, 37, 39, 40 and 41.

80. In Count 14, the accused is charged with the offence of Aggravated Robbery contrary to
sections 285 and 286 (2) of The Penal Code Act. The essential elements of the offence
are: (i) theft of property belonging to another; (ii) with the use or threat to use violence;

24
 (iii) use of a deadly weapon; and (iv) the accused participated. This court finds that a prima
facie case has been established in respect to this count.

81. In Counts 88 and 93, the accused is charged with the offence of Rape contrary to Sections
123 and 124 of The Penal Code Act. The essential elements of the offence are that: (i)
there is carnal knowledge of the victim; (ii) without the consent of the victim; and (iii) that
the accused participated. This court finds that a prima facie case has been established in
respect to both counts.

Final Orders
The Court hereby orders that:
a. In respect of Counts 4, 7, 9, 18, 19, 25, 27, 28, 29, 30, 32, 38, 59 and 83 the accused
has no case to answer and he is hereby acquitted on these particular counts.
b. With the exception of Count 46 which is a repetition of Count 45 the accused has a
case to answer in respect of the remaining 78 Counts. The Court orders that he shall
be put to his defence on those Counts.

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Delivered at Gulu on this 18th Day of December 2023

……….………………………………………
HON MR. JUSTICE MICHAEL ELUBU
JUDGE

………………………………………………….
HON MR. JUSTICE DUNCAN GASWAGA
JUDGE

……………………………………………….
HON MR. JUSTICE STEPHEN MUBIRU
JUDGE

…..………………………………………..………
HON DR. JUSTICE BASHAIJA K. ANDREW
ALTERNATE JUDGE

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