Wakilii

Uganda v Kwoyelo Thomas alias Latoni (Criminal Session Case 2 of 2010)

High Court · [2023] UGHCICD 4 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Defence no case to answer submission at close of prosecution case in trial on indictment for international crimes and Penal Code offences
Decision
Accused acquitted on 14 counts; ordered to enter defence on 78 counts

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that crimes against humanity and war crimes form part of jus cogens norms under customary international law and have direct domestic application without requiring statutory codification. The International Criminal Court Act 2010 was not intended as exhaustive codification but recognition of existing customary law. The principle of legality is not violated where conduct would universally be acknowledged as wrongful under established customary international law. The accused was acquitted on 14 counts where the prosecution failed to establish essential elements, particularly the element of hostage-taking for advantage and certain murder counts lacking evidence. The accused was ordered to enter his defence on 78 counts where prima facie cases were established across war crimes, crimes against humanity, and Penal Code offences.

Outcome

Accused acquitted on 14 counts; ordered to enter defence on 78 counts

Facts

The accused, Kwoyelo Thomas alias Latoni, was indicted on 93 counts for crimes allegedly committed between 1992 and 2005 as a commander in the Lord's Resistance Army (LRA) during a non-international armed conflict in Northern Uganda. The prosecution alleged the accused held command positions including Director of Military Intelligence and was based in Kilak hills, Amuru District. He allegedly had effective command and control over subordinates who carried out attacks on civilian populations including abductions, killings, destruction of property, rape, enslavement, and torture. The LRA operated under a hierarchical military structure led by Joseph Kony. At the close of the prosecution case, defence counsel submitted there was no case to answer on all counts, challenging both the sufficiency of evidence and the legal basis for prosecuting crimes against humanity under customary international law.

Issues

  1. Whether the prosecution established a prima facie case on the charges of war crimes in violation of Article 3 common to the Geneva Conventions
  2. Whether the prosecution established a prima facie case on the charges of crimes against humanity under customary international law
  3. Whether the prosecution established a prima facie case on the charges of serious crimes under the Penal Code Act
  4. Whether the accused can be prosecuted for crimes against humanity under customary international law given that the International Criminal Court Act No. 11 of 2010 was enacted after the alleged offences were committed
  5. Whether prosecution of crimes against humanity under customary international law violates the principle of legality (nullum crimen sine lege) under Article 28(7) and (12) of the Constitution

Orders

  • 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.
  • 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 accused shall be put to his defence on those 78 Counts.

Rules and key headnotes

No Case to Answer — Evidential Requirements — Prima Facie Case
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. A finding of no case to answer is justified when there has been no evidence to prove an essential ingredient of the alleged offence, or 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.
Legality Principle — Nullum Crimen Sine Lege — Customary International Law
The principle of nullum crimen sine lege (no crime without law) does not prevent prosecution under customary international law for conduct that would universally be acknowledged as wrongful. The concept of law comprises both written and unwritten law. Customary international criminal law regarding war crimes and crimes against humanity existed long before partial codification in the Nuremberg and Tokyo tribunals and continues to have independent application alongside statutory law.
Jus Cogens Norms — Peremptory International Law — Direct Domestic Application
Jus cogens norms (peremptory norms of international law) including prohibitions against genocide, slavery, murder, torture, prolonged arbitrary detention, and systematic racial discrimination have direct application domestically without necessity of ratification or domestication. These norms prevail over and invalidate conflicting rules of domestic law including constitutional provisions. The constitutional requirement for treaty ratification under Article 123 does not apply to jus cogens violations because such norms do not rely on state consent.
War Crimes — Armed Conflict Definition — Non-International Armed Conflict
A non-international armed conflict within the meaning of Article 3 common to the Geneva Conventions is characterized by sustained protracted armed violence conducted by dissident armed forces or organized groups under responsible command that exceeds isolated and sporadic acts of violence, internal disturbances, riots or tensions. Relevant factors include the number, duration and intensity of confrontations, type of weapons used, number of casualties, extent of material destruction, and number of civilians fleeing combat zones. Territorial control by the armed group is not necessary if forces have de facto control or can move freely within defined territory.
Codification of Customary Law — International Criminal Court Act — Relationship with Custom
The International Criminal Court Act No. 11 of 2010 was not intended as exhaustive codification of customary international criminal law but rather to give effect to the Rome Statute and provide for domestic offences corresponding to crimes within the ICC's jurisdiction. Even where a statute codifies an area of law, it leaves untouched common law falling outside its scope. Custom and treaties may co-exist on the same subject matter with separate methods of application. The Act does not displace existing customary international law and customary international law continues to govern offences not stipulated by the Act.
War Crimes — Hostage Taking — Essential Elements
The offence of hostage taking as a war crime in violation of Article 3(1)(b) common to the Geneva Conventions requires proof that the perpetrator unlawfully deprived a victim of freedom, wantonly and sometimes under threat of death, where the victim was taking no active part in hostilities, with the intention to obtain some advantage or undertaking from a third party. The element of seeking advantage or undertaking from a third party distinguishes hostage taking from mere abduction or unlawful detention.
Crimes Against Humanity — Universal Jurisdiction — State Duty to Prosecute
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 territory under their jurisdiction. National justice must be the first bulwark against violations of humanitarian law. The absence of a strong record of national investigation and prosecution of international crimes is not an obstacle to the formation and identification of customary law. Objection to 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.

Legislation cited (27)

Cases cited (14)

  • Wibiro alias Musa v R [1960] EA 184
  • Kadiri Kyanju and others v Uganda [1974] HCB 215
  • Ramanlal Trambaklal Bhatt v R [1957] EA 332
  • Uganda v Alfred Ateu [1974] HCB 179
  • Prosecutor v Dusko Tadic (Case No. IT-94-1-T)
  • Prosecutor v Kupreskic et al (Case No. IT-95-16-T)
  • Prosecutor v Tihomir Blaskic (Case No. IT-95-14-T)
  • Prosecutor v Ramush Haradinaj et al (Case No. IT-04-84-T)
  • Prosecutor v Dusko Tadic (Case No. IT-94-1-AR72)
  • Salvatori Abuki v Attorney General (Constitutional Petition No. 2 of 1997)
  • Tumwesige Francis v Attorney General (Constitutional Petition No. 36 of 2018)
  • Andrew Karamagi and another v Attorney General (Constitutional Petition No. 5 of 2016)
  • Case of Almonacid-Arellano et al v. Chile, IACtHR, Judgment of September 26, 2006, para 151 - 153
  • Prosecutor v Dusko Tadic (Case No. IT-94-1)

Full judgment

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Uganda v Kwoyelo Thomas alias Latoni (Criminal Session Case 2 of 2010) [2023] UGHCICD 4 (18 December 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.