After he was captured by the army in Garamba national park in 2005 and detained in Luzira prison, LRA commander Thomas Kwoyelo renounced rebellion and hoped to be set free under the Amnesty Act – just like some 26,000 former combatants have been.
Instead, he was charged with such offences as willful killing, taking hostages, extensive destruction of property, killing innocent civilians and causing serious bodily harm. Prosecution contends that in March 1993, Kwoyelo commanded an attack on Pagak camp for internally displaced persons in northern Uganda, in which several people were killed and others taken hostage.
Kwoyelo, 45, took his case to the Constitutional court, which agreed with him. But the state appealed in the Supreme court, which ruled last Wednesday that Kwoyelo should stand trial. By its arguments, the court clarified the legal situation on who qualifies for amnesty.
SIRAJE LUBWAMA and DERRICK KIYONGA have studied the Supreme court ruling, and now explain why Kwoyelo did not qualify for amnesty.
In a unanimous decision, the Supreme court ruled that some of the acts Kwoyelo committed during the LRA insurgency in northern Uganda were triable. The panel of judges, led by chief justice Bart Katureebe, also had Benjamin Odoki, Jotham Tumwesigye, John Wilson Tsekooko, Christine Kitumba, Galdino Okello and Dr Esther Kisaakye Mayambala.
Katureebe noted that grave crimes like murdering, raping, and kidnapping minors do not fall under those crimes that warrant the DPP to grant amnesty.
“Certainly, there is need to do all that is necessary in order to bring peace and reconciliation to all communities of Uganda. When people have committed gross crimes that outrage the conscious of the world, these should first be made to account for their conduct, provided they are given a fair hearing and allowed to defend themselves,” Katureebe ruled.
Katureebe rejected earlier claims by the state that the Amnesty Act granted blanket amnesty , although he noted that the law did not pronounce itself on certain individuals who may have committed gave crimes necessitated by the furtherance of the war or rebellion.
“To my mind, the fact that the act provides for the DPP to certify reporters for grant of amnesty upon being satisfied that they so qualify, and the fact that the minister is given powers to declare certain persons as being ineligible for grant of amnesty would imply that the Act doesn’t extend a blanket amnesty to all persons and to all crimes as argued by the Attorney General,”Katureebe said
“To allow them, would mean that crimes committed out of malice or even personal vendetta would be granted amnesty. Willful murders of civilians is a crime against humanity, which, in my view, cannot be granted amnesty under the laws of Uganda particularly the Geneva Conventions Act, and the Amnesty Act does not purport to do so.”
Katureebe added that that the amnesty Act only envisaged somebody voluntarily reporting to the authorities yet Kwoyelo did not. He was captured in battle.
“That’s why the term “reporter” was used [in the Act]. It should not be stretched to mean that a person who has been captured fighting on the battlefield can simply declare that he has now renounced the act of rebellion and get a grant of amnesty for grave crimes that a per- son committed,”Katureebe said.
Agreeing with Katureebe that the Attorney General’s appeal be allowed in part, Okello noted that the Amnesty Act doesn’t cover crimes Kwoyelo is accused of: willful killing of innocent people who are not agents or even members of government security agencies rape, causing serious bodily harm to innocent persons and wanton destruction of properties of innocent persons.
The crimes covered, Okello said, included actual participation in combat, collaborating with the perpetrators of the war or armed rebellion and assisting or aiding the conduct or prosecution of the war or armed rebellion.
The Constitutional court had earlier ruled that discriminating Kwoyelo was against Article 21(1) (2) of the constitution. According to the Amnesty Act, amnesty is declared in respect of any Ugandan who has at any time since January 26 1986 engaged in war or armed rebellion against the Uganda government, but subsequently voluntarily renounced rebellion.
Justice Okello, ruled that there was no evidence that the DPP discriminated against Kwoyelo by rejecting his application for amnesty. He agreed with the DPP that Kwoyelo had committed other offences that do not fall within section 3 of the Amnesty Act.
In the end, the justices agreed with the state that Kwoyelo was a captured criminal rather than a voluntary reporter, whose crimes, moreover, were not covered by the Amnesty Act. After the judgment, amidst tight security , Kwoyelo was returned to Luzira prison, as he waits for trial.
Source : The Observer