Conflicting Impulses: The Debate on Amnesties in the Case of Uganda’s Thomas Kwoyelo and Beyond

Posted on September 28, 2011 by Mark Kersten

Judges at Uganda's Constitutional Court have ordered Thomas Kwoyelo to be granted amnesty and set free (Photo: Michele Sibolini, AFP)

This past summer, Uganda did something it had never done before: it put a rebel from the notorious Lord’s Resistance Army (LRA) on trial for international crimes. The trial of Thomas Kwoyelo marked yet another fascinating twist in Uganda’s experience of confronting past atrocities. The government’s Directorate of Public Prosecutions alleged that Kwoyelo was guilty of 12 charges of grave breaches of the fourth Geneva Convention and 53 counts of violating Uganda’s penal code. Last week, however, judges deemed prosecuting Kwoyelo unconstitutional and ordered him to be set free.

The primary obstacle to trying any former rebels in Uganda is the state’s Amnesty Law (2000) which was passed with the backing of powerful local northern Ugandan leaders. It effectively guarantees that any individual who either escaped or was captured and subsequently renounced rebellion can be granted reprieve from any prosecution. The trial of Kwoyelo raised, once again, unresolved issues about the use of amnesty laws in societies emerging from violent political conflicts characterized by widespread atrocities.

During three months of research, I had the opportunity to attend much of Kwoyelo’s trial and speak to many of those involved and affected by his case. From its inception, there was always something peculiar and uncomfortably political about the proceedings. The case opened, quite literally, to the tune of a marching band.

While rather clumsy in their approach – much to the chagrin of the presiding judges – Kwoyelo’s defense team argued that prosecuting their client was unconstitutional. Because other former combatants, including some who were senior to Kwoyelo, had been granted amnesty, trying Kwoyelo constituted an infringement of his right to fair treatment and equality before the law. Not being able to decide on the constitutionality of the case, the ICD referred it to the Constitutional Court, which agreed with the defense and ordered Kwoyelo to be granted an amnesty and be released:

“We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.

We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith.”

Kwoyelo speaking with one of his lawyers, Caleb Alaka, a former LRA delegate in the Juba peace negotiations (Photo: Arne Doornebal)

The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC’s jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government’s next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward.

Of course, the granting of an amnesty and the defeat of the government’s case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:

“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations…Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”

Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy.

Continue reading →

Posted in Uncategorized | Leave a comment

JiC’s 100th Post

Posted on September 26, 2011 by Mark Kersten

Dear readers and friends,

This marks JiC’s 100th post. Looking back, I am still amazed at how far this project, which began with such humble expectations, has come. I hope that you have enjoyed reading our posts as much as we have writing them.

On behalf of Patrick, myself and JiC’s editor, Elke Schwarz, thank you, from the bottom of our hearts and from the top of our minds, for your support and readership.

This is a good opportunity to get some feedback from you, as readers and as the lifeblood of JiC. What would you like to see more of at JiC? Are there issues or angles that we haven’t grappled with that you would like us to in the future? We are always open to constructive criticism and welcome your views. Of course, we take compliments too!

Here’s to a few hundred more!

Mark

Posted in JiC News | 2 Comments

Gaddafi: Our Best Enemy (Film)

Posted on September 26, 2011 by Mark Kersten

“Realpolitik led the West to believe that Gaddafi’s dictatorship would go on forever and Gaddafi, convinced that rapprochement with the West would guarantee his survival, underestimated the wrath of his own people.” – Antoine Vitkine

Over the past weeks and months, I have expressed concerns over the relationship between Western states and Gaddafi’s regime and what it meant with regards to achieving justice. Most recently, I wrote a piece on the subject at Opinio Juris. In this context, I thought it would be appropriate to share a recent documentary with readers.

The French docmentary by Antoine Vitkine, entitled Gaddafi: Our Best Enemy, delves into the precarious and messy historical relationship between key Western states (especially the UK, France and the US) and Gaddafi. It is a remarkably insightful film and includes tremendous interviews with key figures, including Condoleezza Rice and Tony Blair, as well as various high-level political advisers.

Vitkine’s documentary is particularly useful in its elaboration of the events and decisions which resulted in Gaddafi – responsible for sponsoring international terrorism and oppressing his own people for decades – being rehabilitated to become an economic, political and military partner of the West. Our Best Enemy also reveals the complex but shrewd political games in which Gaddafi engaged and how Western states consequently propped up his regime by helping him regain both internal and external legitimacy.

I have posted the video, which is available on YouTube, for your viewing pleasure. Enjoy!

Posted in Film, Libya, Libya and the ICC, The Tripoli Three (Tripoli3), UN Security Council, United Kingdom, United States | Leave a comment

An Arab Fling: The West and International Justice in Libya

Posted on September 26, 2011 by Mark Kersten

The following piece is a guest-post at Opinio Juris where I have been honoured with the opportunity to guest-blog for the next two weeks. All pieces will also be cross-posted here. Enjoy!

US President Barack Obama and Gaddafi greet each other warmly just a few months prior to Gaddafi's brutal crackdown (Photo: AP)

An Arab Fling: The West and International Justice in Libya

It was so promising. Everyone appeared to be on board when, last February, the international community decided that the situation in Libya should be investigated by the International Criminal Court. Not only did the UN Security Council refer the situation in Libya to the Court, but it did so unanimously. However, despite hefty rhetoric about the importance of bringing the Libyan leader to justice, Western states have been happy to instrumentalize the Court in order to isolate Gaddafi and have just as keenly abandoned their interest in bringing the Libyan tyrant to The Hague. Their initial and overwhelming zeal for international justice also obscured their complicity in sustaining Gaddafi’s regime and its crimes against the Libyan people.

Readers of the UN Security Council Resolution 1970 will note that the resolution imposes a temporal limit on the ICC’s jurisdiction. While the Rome Statute declares that the Court can investigate events since July 1, 2002, the ICC was instructed to only investigate alleged international crimes in Libya since February 15, 2011. In addition, the referral explicitly removes citizens of non-state parties from the jurisdiction of the Court. Despite the questionably legal nature of such restrictions, the referral was celebrated as marking a new chapter in international justice and the relationship between the ICC and the Security Council. Yet, ironically, as the intervention in Libya began to succeed and Gaddafi became increasingly isolated, commitment to achieving international justice waned.

That Western states sought to prohibit the Court from investigating any Libyan crimes prior to February 15, 2011 is unsurprising. Doing so would have exposed a litany of instances in which Western states propped up the Gaddafi regime and were complicit in systemic and systematic human rights violations.

It doesn’t take much research to discover the extent to which Western states and Libya developed a remarkably cozy political, military and economic relationship. Virtually every major Western state had significant dealings with Gaddafi and his regime. Despite protestations from human rights groups and Gaddafi’s victims, he was no longer the “criminal” tyrant who presided over a “reign of terror”, as described by Ronald Reagan. Instead, he was convinced to take responsibility for Lockerbie, renounce sponsorship for international terrorism and become a partner in the fight against radical Islam, and dismantle his nuclear and weapons of mass destruction programmes. Justified by realpolitik, Gaddafi became a “friend”, an “ally” and “one of ours”. It was a remarkable transformation and one which ushered in a wave of bilateral deals which helped keep his police state in power and his people oppressed.

Former Canadian Prime Minister Paul Martin with Gaddafi in 2004, shortly after Gaddafi was rehabilitated as a legitimate international leader. Gaddafi called Martin his "friend" while Martin called Gaddafi a ‘‘philosophical man with a sense of history’’ (Photo: Globe and Mail)

Getting Gaddafi on the right side of terrorism and nuclear proliferation was necessary and the concessions achieved by restoring Gaddafi’s image were surely worth it. However, as Stephen Glover has argued: “What is not defensible is the subsequent indulging of this horrible man, and treating him as though he were a normal leader of a normal country.”

Continue reading →

Posted in Canada, France, Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3), Torture, UN Security Council, United Kingdom, United States | Leave a comment

Kwoyelo Granted Amnesty and Set Free But Questions Remain

Posted on September 22, 2011 by Mark Kersten

Thomas Kwoyelo: Out of Shackles Now (Photo: HRW)

As many readers will know, both Patrick and I have been writing about the trial of Thomas Kwoyelo in recent weeks (see here, here and here). Earlier this year, Kwoyelo became the first rebel commander of the Lord’s Resistance Army to be put in the dock in Uganda. The LRA fought the Government of Uganda for 25 years in a brutal conflict characterized by vicious human rights violations. Today, Kwoyelo was set free.

Kwoyelo’s defense successfully argued that putting their client in the dock was unconstitutional. An Amnesty Act, passed by the Government in Uganda in 2000, was intended to entice LRA rebels out of the bush by offering them protection from prosecution for all rebel-based activities. To be granted an amnesty, rebels only had to apply and denounce rebel activities. Kwoyelo did both. In Kwoyelo’s case the Director of Public Prosecutions (DPP) decided that Kwoyelo could not receive amnesty, but refused to specify why.

Other senior commanders had been granted amnesty and, according to Kwoyelo’s lawyers and Uganda’s Constitutional Court, putting Kwoyelo on trial would have violated his right of equality before the law. Here’s an excerpt from the ruling:

“We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.

We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith.

Indeed, in terms of section 3(2) of the Act, the applicant, as a reporter “shall also be deemed to be granted amnesty…” once he declared to the prison officer that he had renounced rebellion and declared his intention to apply for amnesty under the Act…

The DPP on his part shirked his obligations under the Act. We think it is rather late in the day for the learned DPP to claim his constitutional independence, using the applicant.

He has failed to furnish any reasonable or objective explanation why the applicant should be denied equal treatment under the Amnesty Act.”

Thomas Kwoyelo while on trial in Gulu, northern Uganda (Photo: Edward Echwalu)

Despite the verdict, numerous questions remain. Kwoyelo will be released and is likely to return to live with his family in Gulu. However, he has spent years in jail and may now have the opportunity to sue the government. Regardless, in the eyes of many, he will always be guilty. Hundreds of Ugandans have seen him paraded to Court in shackles, to the sound of an orchestra.

Will Kwoyelo be subjected to traditional justice mechanisms? Traditional justice, especially ‘mato oput‘, has been a popular way of pursuing reconciliation in Acholiland, northern Uganda. There will be social pressure on Kwoyelo to participate in a mato oput ceremony, but it’s worth noting that never before has an LRA rebel been subjected to the justice of the courts and then to traditional justice. It is not obvious how these two approaches can work in tandem in a single case.

Continue reading →

Posted in Amnesty, Human Rights, Justice, Kwoyelo Trial, Lord's Resistance Army (LRA), Traditional Justice Mechanisms, Transitional Justice, Uganda | 4 Comments

The Hypocrisy of Demanding Justice Without Enforcing It

Posted on September 22, 2011 by Patrick Wegner

Where justice and politics meet, the United Nations Security Council

In questions of justice in conflicts authors have often described a marked divide between the interests of Western countries and the needs of the local populations directly affected by the conflict on the ground. Two prominent examples are Roy Licklider, who has argued that:

‘We are not just engaged in academic debates now; we are talking about other people’s countries and other people’s lives. And we do not know, in such a manner as to persuade others, what is true, what will work […]’

Adam Branch accuses the ICC of experimenting with African populations in their quest to bring justice to conflicts. As has been argued in various posts published in this blog there are always vested interests in questions of justice during conflicts. For example, in the case of the ICC’s investigations of the Lord’s Resistance Army, traditional leaders have been very vocal in their demands for traditional justice because their traditional authority is at stake. But how much truth is behind the view of a clash of international and local interests in pursuing justice in conflicts beyond the different interests at play?

The case of the ICC warrants against the President of Sudan over war crimes and alleged genocide committed in Darfur serve as a valuable case study to answering this question. The international pressure on Sudan over the Darfur conflict had been mounting for several months before the ICC was brought into play by the United Nations Security Council. Even the US decided to implicitly endorse the referral of the situation in Darfur to the ICC despite their concerns about the court by abstaining and not vetoing Resolution 1594 on 31 March 2005. Throughout the whole conflict verbal condemnations and pressure, especially by France, the US, UK and Canada, had been mounting. This tendency continued after the ICC referrals and culminated in a coordinated international campaign to pressure China, as the main supporter of the GoS, during the 2008 Olympics in Beijing. Human rights organizations like Amnesty International and Human Rights Watch have also consistently been pushing for accountability in Darfur. Additionally, the US applied unilateral sanctions under strong civil society pressure at various points during the conflict.

Save Darfur rally in Central Park, NYC

Yet, this verbal engagement has not been followed up by deeds in any way. The African Union Mission in Sudan (AMIS) was accepted by Sudan in October 2004. It was endorsed by the UN Security Council as its deployment meant that Western states could dodge pressure to become active in Darfur by pointing at the AU. Yet, AMIS failed to stabilize the situation amongst a lack of vital equipment and payment delays for the soldiers stationed in Darfur. The international community never supported the mission to a sufficient degree. In early 2008, after months of stalling by the Government of Sudan and a lack of commitment by Western states, the AU mission was finally replaced by a UN/AU hybrid mission called UNAMID. Yet, history is repeating itself with UNAMID. In 2010 the deployment progress of the mission was still at little over 50 per-cent and vital transport helicopters that are needed to operate effectively in the vast savannahs and deserts of northern and western Darfur were still missing.

Continue reading →

Posted in African Union (AU), Darfur, IDP, International Criminal Court (ICC), Peace Negotiations, Sudan | Tagged , , , , , , | Leave a comment

Checking in on Ivory Coast: Justice here and Justice there

Posted on September 20, 2011 by Mark Kersten

Gbagbo (r) and Ouattara in happier times

With the vast majority of international justice attention focused on the unfolding situation in Libya, the search for justice in post-conflict Ivory Coast has been chugging along without much international scrutiny. In sharp contrast to the rigid either-or-debate regarding where Muammar Gaddafi and the Tripoli Three should be tried, the transitional government in Ivory Coast appears to have decided that justice will be served both locally and internationally.

The ICC’s interest in Ivory Coast is nothing new. The Court has been pondering its course since the country declared, in 2003, that it accepted the ICC’s jurisdiction. When widespread post-election violence erupted across across the country late last year, the Court began to apply pressure on Ivory Coast officials, declaring that the Office of the Prosecution would not hesitate to issue arrest warrants for key Ivorian leaders responsible for large-scale violence amounting to war crimes or crimes against humanity. However, as pressure mounted to get involved in Libya and other Arab Spring states, Ivory Coast was largely relegated to the backburners of international scrutiny and interest.

On deeper inspection, Ivorian authorities have been quite busy in their pursuit of accountability and reconciliation. Inspired by the South African experience, a truth commission, the Truth, Reconciliation and Dialogue Commission, (which includes football star Didier Drogba!) has been set up to examine the four months of turmoil that swept and ravaged Ivory Coast. Along with the Commission, there has been significant pressure to bring former President, Laurent Gbagbo, and others to account for their role in the post-election violence. For four months, Gbagbo refused to concede electoral defeat, instead holing up in his Presidential palace in Abidjan, as his and Ouattara’s supporters engaged in brutal street wars. Thousands perished in what has been described as Ivory Coast’s “second civil war”. Gbagbo was finally, and forcefully, removed from power with the help of a French and UN military mission.

The new government has since begun the process of seeking retributive, criminal justice for key individuals. While fears of one-sided victors’ justice persist, despite evidence that both sides committed war crimes, in August, the government charged 12 Gbagbo supporters, including the former president’s son.

Since the guns were silenced in Ivory Coast, Ouattara has appeared eager to have the ICC involved in the process of the country’s political transition. Since then, the ICC’s Office of the Prosecutor’s requested the opening of an official investigation into the post-election violence. While the ICC still cites the Ivory Coast as being “under preliminary investigation”, a few days after the request for opening an official investigation, the Court’s Deputy Prosecutor, Fatou Bensouda, visited Ivory Coast and signed a deal allowing the Court to conduct a formal investigation.

The ICC’s investigation will undoubtedly focus around the role of Gbagbo. For the Court, putting its first head of state in the dock would be a first, and a tremendous political and politically symbolic victory. It also appears to be a priority for Bensouda, who is most likely to become the Court’s top prosecutor when Luis Moreno-Ocampo’s term concludes next year.

The ICC's Deputy Prosecutor, Fatou Bensouda, was recently in Ivory Coast to sign an agreement allowing the Court to open a formal investigation into post-election violence.

Responding to the dilemma of where justice should be served, President Ouattara recently declared that justice would be served both domestically and at the ICC:

“He will be judged in Ivory Coast for economic crimes and he will also be judged by the ICC at our request so that the trial is fair…The law will be the same for everybody. Impunity will not be tolerated and those who should face the judge will do so. We will not make any exemptions.”

Continue reading →

Posted in Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Justice, Libya and the ICC, Truth and Reconciliation Commissions, Truth Commission | 1 Comment

If Caught, Libya likely won’t Extradite Gaddafi

Posted on September 14, 2011 by Mark Kersten
Jalil in London

Interim Libyan leader Jalil and UK PM Cameron. There has been more pressure on Libya to get those responsible for Yvonne Fletcher's murder extradited than to get Gaddafi, if captured, to the ICC (Photo: EPA)

In a recent comment, a reader of JiC sent me a link to a Guardian post entitled: Libya may refuse to extradite Yvonne Fletcher murder suspect. Some of the statements made in the piece by Libyan rebel officials may have major implications on whether Gaddafi, if captured, might ever reach The Hague.

For those who may not know, Yvonne Fletcher was a British police officer who was shot dead during a protest in 1984 outside of the Libyan embassy in London. Numerous groups had been hoping that, with the installation of the transitional government in Libya, her alleged murderer would be extradited to the UK to finally face justice. In the wake of Fletcher’s murder, the UK severed diplomatic relations with Libya.

So why is a piece on the extradition of Yvonne Fletcher’s murderer relevant to the Gaddafi case? Because of the following statement made by the interim justice minister in Libya’s governing National Transitional Council (NTC), Mohammed al-Alagi:

“We will not give any Libyan citizen to the west.”

Another member of the NTC, Hassan al-Sagheer, similarly declared:

“Libya has never extradited or handed over its citizens to a foreign country. We shall continue with this principle.”

In 1984, Yvonne Fletcher was shot dead during a protest outside of the Libyan embassy in London (Photo: Photograph: Mohamed Maklovf / Rex Features)

Those with a keen sense for irony will point out the rather awkward situation of Libya rejecting extradition of its own nationals, while demanding that neighbouring states return pro-Gaddafi nationals.

However, the statements above don’t necessarily mean that there is no way anyone – including Yvonne Fletcher’s killer – won’t be extradited, although they are indicative of the level of resistance among the rebel governors to handing over Libyan nationals. Yet another NTC member, Fawzi al-Ali, maintains that an individual can be extradited if a “special agreement” is reached to do so. In short, what this indicates is that there will have to be significant pressure and political will in order for anyone to be extradited to face justice – including Gaddafi.

Unfortunately, for those who would like to see Gaddafi tried in The Hague (as well as those, myself included, who would like to see an ICC trial in Libya), such pressure from states is virtually absent to date. During the early stages of the conflict, key international powers, including the US and the UK, professed the need for Gaddafi to face international justice. More recently, these states have done an about-face, arguing that justice for Gaddafi’s acts is entirely up to the Libyan people (read: the NTC).

Indeed, while Yvonne Fletcher’s murderer should certainly face justice – and the UK is right to press the NTC on the matter – there is more pressure to achieve justice for her death than for the alleged war crimes and crimes committed by Gaddafi against his own people. That says a lot.

Posted in International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3), United Kingdom, War crimes | 1 Comment

A Cunning Move: Justice in Libya or The Hague?

Posted on September 13, 2011 by Mark Kersten

A rebel raises the new Libyan flag near Bani Walid (Photo: Getty)

Numerous commentators have given their two cents on whether the Tripoli Three – Gaddafi, his son Saif al-Islam and his intelligence chief, Abdullah al-Senussi – should be tried in The Hague or in Libya. Predictably, most continue to argue that it is an ‘either or’ situation; that either justice must be served in The Hague or it must be served in Libya. However, a growing number of observers, including influential scholars David Kaye, Kevin Heller, and Stuart Ford, and some less influential ones (see my piece here), have begun to bandy about the idea of an ICC trial in Libya. This is a welcome development. Even if the Tripoli Three don’t end up being tried in Libya by the ICC, the debate has opened up a discussion on the possibility – of the Court being able to travel to where the crimes it investigates were committed and where the victims it purports to work for live.

If we’re honest, most commentators on the subject are privileged: there are no direct, negative repercussions for most of us if Gaddafi is tried in Libya or The Hague. For the people of Libya, however, this may not be the case. For them, the location of justice matters. While it may be problematic, the overwhelming desire to hold Gaddafi to account in Libya, before the eyes of the people whose lives he has terrorized for forty years is completely and utterly understandable.

In this context, I recently came across a largely under-reported quote from interim leader Mustafa Abdul Jalil (see video here):

“The crimes that Gaddafi committed against his people locally before 17 February are enough to bring him to trial for any other crimes he committed after 17 February.

“Libya has not signed the Rome agreement and the ICC’s justice is a complementary justice, as the local judicial system is the one responsible for this.”

Interim Libyan leader Mustafa Jalil (Photo: AP)

The UN Security Council’s Resolution 1970, which referred the situation in Libya to the ICC, instructed the Court that only crimes after February 15, 2011 could be investigated. I have previously argued (here, here and here) that this provision in the referral is a distortion of international law and serves to protect particular Western states from having their very cozy political, military and, at times, criminal relationships with Gaddafi investigated. However, Jalil appears to be using this jurisdictional limit for entirely other means.

In his quote, Jalil is alluding to the possibility of the Libyan transitional government accepting this temporal jurisdiction of the UN Security Council’s referral of Libya to the ICC. Jalil clearly recognizes the temporal limit imposed on the ICC by the Security Council, even if his remarks speak of the more popular day of the Libyan uprising, February 17 2011. However, it appears the National Transitional Council (NTC) is more interested in achieving justice for forty years of dictatorship rather than half a year of brutality. After four decades of an autocratic police state headed by Gaddafi, there is surely no shortage of crimes which could be prosecuted prior to February 2011.

Jalil’s statement is a remarkably cunning political move. By arguing that Libya has the right to try Gaddafi for any crimes he committed prior the the ICC’s involvement in Libya, Jalil skillfully circumvents a show-down with the ICC. The NTC is not outright saying the ICC cannot or should not prosecute Gaddafi. Instead it is making, at least on the surface, a very sensible argument: Gaddafi has committed atrocities for a long time before February 2011 and he should be tried for the crimes he perpetrated against his own people. By making this argument, Jalil and the NTC can also claim that they are seeking a more encompassing justice which covers decades rather than months of injustices. Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | 2 Comments

Squashing the Amnesty Law in Uganda? Possible Implications of the Kwoyelo Trial

Posted on September 12, 2011 by Patrick Wegner

Thomas Kwoyelo arrives at Entebbe Airport after his arrest. REUTERS/James Akena (UGANDA)

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.

Supreme Court Building in Kampala

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.

Thomas Kwoyelo discussing with his defence lawyer

Continue reading →

Posted in Amnesty, Kwoyelo Trial, Lord's Resistance Army (LRA), Transitional Justice, Uganda | 8 Comments