Day 4. A plan (with a major hole) comes together
Six hours of sleep. That's better. Not enough, but better. My disposition has improved some. First a shave and a shower. Much better. Next, suit up and go down to the terrace. They are all getting to know me now. I think I am the only white person but I am also the guy that is always smiling and looking lost. That works for them. There is a woman who works in the restaurant that looks like Bubbles from The Wire. She smiles, does a little hop, and claps. She points and says, "Uganda tea! No milk!" You know it! Tea, juice, pineapple, rolls, beans, roasted tomato and spring rolls and I am set (and rather full).
Today is official game plan day. Francis shows up at 11 and we start to plan for the big meeting. We brainstorm about what arguments and authorities we need for the torture petition. We need to break down each individual witness statement. We also discuss at length how to change public perceptions about this trial. How can we get people like Jackie to understand the righteousness of this cause? Francis says that by the time of trial any one of us should be able to stand up and handle the whole thing. I think to myself, "I'm not licensed in Uganda, so you had best have your shit together, buddy." Oops (see below).
Francis and I catch a cab (time to cover my eyes) to Nicholas's office.
The War Room.
Nicholas is the final attorney on the team. He is from northern Uganda and does extensive work on torture cases. This is the first time I've met him. About five minutes into the meeting I am impressed with his intellect and thoughtfulness on the issues. He is a very serious and deliberative man. Not many smiles come from him. But I like him.
Here is what you need to know: This is the first time a case is being tried under the Geneva Conventions Act in the new International Crimes Division of the Ugandan court system. That said, the court has repeatedly stated, rather firmly, that this is a Ugandan case being tried under Ugandan law. The problem is that Ugandan law allows for the death penalty. The Geneva Conventions does not. We want this case tried under international standards.
Now the other shoe (finally) drops. Nicholas says we need to get to work straight away getting me a temporary license to practice in Uganda.
My eyes get wide and dart to Francis. "What? Francis?"
I have not anticipated this. Francis smiles, "James, we need you to argue and give this case international legitimacy." I am going to be arguing portions of the case? Yikes! And I thought the 9th Circuit was scary! I thought this would be a supporting role where Matt and I are the guys whispering in their ears and shoving the appropriate papers forward. Now I am a foreigner slated to wear a fancy robe and make arguments to people in powdered wigs in the first case ever tried in the Uganda International Crimes Court?
Okay, I admit it. I am so excited! Now, I've argued a zillion motions, numerous appeals, but I've never had a case that has gone through actual trial. Why not have the first be a capital international war crimes case? That's one way to ease in, no?
The thinking is that the presence of a licensed foreign attorney on the team making arguments about the necessity of the application of international standards to the court will rattle them. That, coupled with the media offensive we plan to launch, may put the government in an embarrassing position. The government does not want to have its skirt lifted (regarding Kwoyelo's torture and unconstitutional pre-trial detention), and that is exactly what we are going to do with the torture petition. The torture petition, media attention to the merits of the defense case, and the notice of association of counsel pro hac vice (the Ugandan version) should put them on the defensive and soften their hard line positions. Or, looking at it a different way, we are presenting them with the opportunity to show the world that they can have an open, honest, and fair trial. Maybe they will want to make a deal. If nothing else, it may save Kwoyelo's life.
We still have the amnesty petition outstanding with the constitutional court, but the amnesty commission is dubious about our chances. The problem with amnesty is that it is internationally frowned upon because it does not give rise to accountablity for perpetrators of war crimes nor does it help to assuage the injuries suffered by the victims and their communities. On the other hand, when a government promises amnesty, there is a strong case to be made that they should keep those promises. For example, if one were an LRA fighter and saw what is happening to Kwoyelo, what incentive would he have to lay down arms, petition for amnesty, and rejoin society? If the government arbitrarily grants amnesty, would he really be willing to take the chance?
We need to prepare an appeal in advance of losing the amnesty argument and there is no time to waste preparing for trial. Nevertheless, we are all (the three of us there) excited about how this is coming together. But we have a problem. A major problem.
We are woefully lacking in resources, human and financial, to properly prepare for and try this case. We need investigators to go north and interview witnesses. Every trip to Gulu (five hour trip) runs at minimum $500 for two days. The prosecution has at least 70 witnesses. We need our own and rebuttal witnesses. That means finding the witnesses in the northern villages (we can't exactly use the yellow pages). The trial proper will last for months. All of us, including you, my loyal readers, need to brainstorm about how to raise funds for this defense. Francis is preparing a defense budget which I will publish and when I get home I need to get to work straight away to find funds to help finance this case to its conclusion.
We can't walk away from this. As Francis said to me yesterday, if nobody stepped up Kwoyelo would already be sentenced and the truth about this ugly war would never come to light. The consequences surrounding how this case is handled and concluded has the potential to positively change this country (and continent) forever, impact the treatment of countless accused, and set global precedent for fairness and due process in future war crimes cases. Put simply, this is an historic opportunity to do a very good thing. We simply have to find a way.
Thoughts?
-James
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