20 years later, will Joseph Kony’s victims get justice?

Author: Michael Aboneka
LLM Candidate, Centre for Human Rights

Joseph Kony is a Ugandan leader of the Lord’s Resistance Army (LRA). The LRA started its operations from Northern Uganda extending to some parts of Sudan, the Democratic Republic of Congo and the Central African Republic. He claims to be fighting to liberate the Acholi and Ugandans from oppression and captivity.

He has both individual and command responsibility under articles 25 and 28 of the Rome Statute of the International Criminal Court (Rome Statute). Kony founded the LRA as its supreme leader and commander with effective control over it. He ordered his commanders to attack Lwala Girls School and abducted 70 girls in 2003, and attacked Pajule, Abok, Lukodi internally displaced persons camps among others. He was indicted with 21 counts of war crimes including murder, inducing rapes among others and  12 counts of crimes against humanity including acts of inflicting serious bodily injury and suffering, rape, sexual enslavement, abduction and enlisting over 30,000 children.

A warrant of arrest for Kony was issued in 2005 for 33 counts of war crimes and crimes against humanity under articles 7 and 8 of the Rome Statute. The United States of America designated LRA as a rebel group and in 2013, put a bounty of five million Dollars for his arrest. The US and UK further imposed economic and financial sanctions against Kony and his family.

It is reported that the LRA is growing weaker as a number of LRA fighters have been captured or defected and surrendered to the government army. There is still hope that the hunt for Kony will materialise someday as a result of the reported growing weakness of the LRA. Recently, Uganda’s army said they destroyed Kony’s Camps and took some equipment, but seems to have given up hunting for him.

Is there hope for the victims? The ICC Prosecutor was on 4 March 2024 granted leave to commence the confirmation of charges hearing in absentia on 15 October 2024 under article 61(2)(b) of the  Rome Statute after the demonstration that it took all reasonable steps to ensure that Kony gets the information concerning his charges. This will be the first time such a session will take place in the absence of the accused.

To ensure fair hearing under article 67(1)(b)(d) of the Statute and rules 21(2), 22 of the Rules of Procedure and Evidence, regulations 67, 73,76 of the Regulations of the Court, the Pre-Trial Chamber III on 2 May 2024 granted the application for appointment of a defence Counsel for Kony (in absentia). To this end, a defence Counsel Peter Haynes has been appointed to execute the defence. One of the biggest questions, however, is, how complete and thorough the defence counsel will represent his client in absentia – that is, if Kony decides to hide and does not show up on the day of the hearing. The ICC seems determined to continue to prosecute him in his absence and may go ahead to proceed with trial and perhaps convict and sentence him if found guilty.

Can Kony be tried in Ugandan Courts? Much as Uganda established the International Crimes Division of the High Court to prosecute individuals under the Statute, application of the same is a hurdle. The International Criminal Court Act was enacted in 2010 and Kony’s alleged crimes date back to between 2002-2003 which means that under the principle of non-retrogressiveness provided under Article 24 of the Rome Statute, Kony cannot be tried for the crimes committed before the coming in force of the Rome Statute and any subsequent laws arising from it.   Much as the Amnesty Amendment Act, 2006 (section 2A) gives the Minister power to declare an individual not eligible for amnesty, it is not clear whether if Kony surrendered he would be denied amnesty since there were earlier attempts of peace talks urging him to stop the aggression and seek amnesty.

Prosecuting Kony requires expertise and resources. Uganda does not have a witness protection law. This is a danger to the witnesses as the majority will not feel safe to testify. Secondly, the investigations need to be robust and Uganda has no required capacity. Thomas Kwoyelo was acquitted of 15 charges because there was insufficient evidence, and witnesses had memory loss. The International Crimes Division of the High Court of Uganda, however, found him guilty  of 44 other offences including murder, rape, torture, pillaging, abduction and destruction of settlements for internally displaced people in August 2024.

The ICC tried and convicted Dominic Ongwen and sentenced him to 25 years in prison, which was confirmed by the Appeal Chambers. This is a precedent set for the trial of any of the LRA commanders. Kony must be tried for his crimes and reparations made for the victims and their families for justice to prevail.

About the Author:

Michael Aboneka is an Advocate of the Courts of Judicature of Uganda and Partner at Thomas & Michael Advocates. He is the Team Leader of Walezi Wa Katiba Foundation, and a constitution building, civic space and governance expert. Michael is a member of Uganda Law Society, East Africa Law Society, Pan African Lawyer’s Union, International Society of Public Law & World Youth Alliance. He is currently pursuing his LLM in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria, South Africa.