Regular readers of this blog will be aware of the Kwoyelo Trial at the International Crimes Division (ICD) of the Ugandan High Court. Thomas Kwoyelo was a high ranking LRA Commander who was arrested in the DRC in 2009 and has been charged for violations of the Geneva Convention by the Directorate of Public Prosecutions. Mark has reported on the trial in the past here and here. In a nutshell, Kwoyelo’s defense stated that he is eligible for amnesty under the Amnesty Act of 2000 and the International Crimes Division referred the case to the Ugandan Constitutional Court to clarify whether Thomas Kwoyelo should be granted amnesty or not. This is where things started getting complicated.
To the surprise of many observers, the Principal State Attorney, Ms. Patricia Mutesi, focused her argument on the Amnesty Act as such and not so much on the specific case of Kwoyelo that was before the Constitutional Court. The Principal State Attorney in fact started to raise concerns whether the Amnesty Act as a whole is in violation of the Ugandan Constitution and Uganda’s international obligations under several treaties. The defense tried to stave off this discussion in the morning session, stating that the court was supposed to hear the case of Kwoyelo’s amnesty application and not to get into questions of the constitutionality of the Amnesty Act. Yet, the Principal State Attorney insisted on the point in her final remarks and the judges allowed her to proceed.
Let’s get the facts clear here first. From a legal point of view there is indeed no obvious reason why Thomas Kwoyelo should be denied amnesty. I think he is clearly eligible for amnesty, taking into consideration that the Amnesty Act is very broad and bordering on a blanket amnesty.
There are basically only two reasons why Kwoyelo would not be eligible for amnesty. One would be if he had already received amnesty once. In this case, he could get amnesty only under exceptional circumstances. Despite some reports that Kwoyelo had already applied for amnesty once, the Amnesty Commission has confirmed that this is not the case. The second reason would be an explicit exclusion of Kwoyelo from receiving amnesty issued by the Minister of Internal Affairs. The Minister of Internal Affairs, with approval by the Ugandan Parliament, can exclude certain individuals from receiving amnesty under a 2006 amendment to the act. Yet, experts have assured me there has not been a single case of somebody being excluded from amnesty yet. Taking these points into consideration, Kwoyelo’s defense had a strong case when going to the Constitutional Court.
It is difficult to ascertain why the Principal State Attorney chose to challenge the Amnesty Act as such during the Constitutional Court hearing. Maybe it was an act of desperation as the chances to challenge Kwoyelo’s amnesty application seemed slim. But it might also be a signal that the Government of Uganda is changing its transitional justice concept from a mixed approach, including both amnesties and trials, to an approach focusing on accountability. At this stage, these are of course mere speculations. Some informants have told me that they do not believe that the Principal State Attorney would have challenged the Amnesty Act without consulting the government, while others have the impression that debates about the Amnesty Act and the ICD have just now started within the executive and legislative branches. Be it as it may, the decision of the Constitutional Court will have huge repercussions beyond the case of Thomas Kwoyelo and will influence the course of transitional justice in Uganda for the years to come.
The significance of the decision becomes clear with a closer look at the legal argument. The Principal State Attorney is attacking the Amnesty Law because it arguably infringes on the powers of the Directorate of Public Prosecutions which, according to the constitution, has the powers to investigate anyone it deems necessary. Art. 120 III b and VI of the Ugandan Constitution read:
(3) The functions of the Director of Public Prosecutions are the following—
(b) to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial;
(6) In the exercise of the functions conferred on him or her by this article, the Director of Public Prosecutions shall not be subject to the direction or control of any person or authority.
These articles clash with sections 3.1 and 3.2 of the Amnesty Act stating:
(1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26th day of January, 1986 engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by –
(a) actual participation in combat;
(b) collaborating with the perpetrators of the war or armed rebellion;
(c) committing any other crime in the furtherance of the war or armed rebellion; or
(d) assisting or aiding the conduct or prosecution of the war or armed rebellion.
(2) A person referred to under subsection (1) shall not be prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion.
This means that the Constitutional Court might declare the Amnesty Act null and void under the Ugandan Constitution, and it is not entirely clear what this would mean for amnesties granted in the past. If the Amnesty Act is void under the constitution this could indeed mean that past amnesties granted under the act had no legal basis, leaving past applicants in a legal limbo. A High Court judge I had the chance to talk to explained to me that an annulment would indeed pose the question of the validity of earlier amnesties, even though the Directorate for Public Prosecution would, in practice, not start to investigate the bulk of past ‘reporters’. Still, it is clear that this case has the potential to influence the situation in Uganda far beyond the question whether Kwoyelo himself should receive amnesty or not. Contacts within the Amnesty Commission have told me that the institution is keen to be heard in the case and argued that it should not be forgotten that the Amnesty Act was passed by the Ugandan Parliament. So third parties are already being drawn into the discussion.
Strangely, it seems that the potentially huge repercussions of the Kwoyelo Trial have not yet really been realized by the media or stakeholders in Uganda. At least the trial has not yet triggered a public discussion about the way forward with the amnesty. As some of my interview partners have pointed out, it cannot be in the interest of the government to ‘rock the boat’ at this stage by risking the annulment of all the amnesties granted so far.
According to figures cited by Human Rights Watch, 24,000 LRA members have been amnestied until 2010 of which 17,000 were combatants. Taking into consideration that many of the LRA returnees still struggle to integrate themselves into their communities, and keeping in mind the multiple challenges they are facing when returning from the bush, it is easy to imagine the turmoil that could arise if legal uncertainties would add to their already existing problems. The developments in the Kwoyelo Trial are definitely worth following.