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Why Kwoyelo trial is yet to start, eight years later

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The state it’s said has managed to secure about 120 witnesses to pin Thomas Kwoyelo the former Lord’s Resistance Army (LRA) commander who is facing trial at the High Court’s International Crimes Division (ICD) based in the Northern town of Gulu . The trial was supposed to commence in 2010 and now DERRICK KIYONGA explains why it has taken over eight years for it to see the light of the day.

After Thomas Kwoyelo was captured by the UPDF during its expedition dubbed Operation Lightning Thunder in the jungles Garamba National Park (DR Congo) in 2009 and detained, he renounced rebellion and hoped to be set free under the Amnesty Act – just like some 26,000 former combatants have been.

Instead, on September 6, 2010, the Directorate of Public Prosecutions (DPP) moved and charged Kwoyelo at Buganda Road Chief Magistrates’ with offences such as willful killing, taking hostages, extensive destruction of property, killing innocent civilians and causing serious bodily harm.

Prosecution contended 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.

On July 11, 2011, when the former LRA commander appeared before the ICD, his lawyers led by Caleb Alaka demanded for a constitutional reference contending that he was indicated for offences for which he qualified for amnesty under the Amnesty Act.

Alaka‘s contention was simple: other LRA commanders like Kenneth Banya, Sam Kolo and over 26, 000 other rebels, who were captured in similar circumstances, were granted certificates of amnesty by the DPP and the Amnesty Commission. Actually in questioning Kwoyelo’s trial, Alaka compared ranks.

Although Kolo and Banya were Brigadiers, his client was a lowly colonel; so to Alaka, trying Kwoyelo and leaving his superiors pointed to some level of bias.

Constitutional Court led by Justices Amos Twinomujuni, Constance Byamugisha (both now deceased), Augustine Nshimye, Stella Arach-Amoko (both now at the Supreme Court) and Remmy Kasule, had a job to do.

Kwoyelo seeks amnesty

The crux of Kwoyelo’s complain as understood by the five judges was that he was being discriminated against and was being deprived of equal protection of the law under Article 21 of the Constitution with people in similar circumstances.

Opposing this novel petition was Principal State Attorney Patricia Mutesi from the Attorney General’s chambers. She did not agree with Alaka’s arguments.

Kwoyelo, Mutesi argued, couldn’t derive any legal right to amnesty because the Amnesty Act is unconstitutional and therefore null and void under Article 2 of the Constitution.

She stated that the Constitutional Court couldn’t validly order the Amnesty Commission to act under the Act once it has been brought to its attention that the Act itself is inconsistent with the Constitution.

Mutesi contended that the Amnesty Act infringes on the constitutional independence of the DPP guaranteed in Article 120 (3) (b) (c) (d), (5) and (6) of the constitution.

She contended that in exercising his or her powers whether to prosecute or to discontinue criminal prosecution, the DPP “shall not be subject to the control of any person or authority” including Parliament. She claimed that the Amnesty Act subjects the independence of the DPP to the control of Parliament in the performance of his duties.

The State attorney further stated that Article 120(5) provides that the DPP in exercising his / her powers shall have regard to public interest, the administration of justice and the need to prevent the abuse of legal process.

She attacked the Amnesty Act on grounds that it granted blanket amnesty without provision for DPP’s consent, denied him the opportunity to consider the facts, circumstances of individual cases, the available evidence and then make an independent decision whether to prosecute or not.

In the judgment, the justice unanimously disagreed with Mutesi’s arguments that the Amnesty Act somehow weakens the DPP.

“We do not think that the Act was enacted to whittle down the prosecutorial powers of the DPP or to interfere with his independence as Ms Mutesi submitted,” they ruled. “The DPP can still prosecute persons who are declared ineligible for amnesty by the minister responsible for Internal Affairs or those who refuse to renounce rebellion. He can also prosecute any government agents who might have committed grave breaches of the Geneva Conventions Act, if any.”

They added: “The Amnesty Act unlike the South African Truth and Reconciliation Act did not immunize all wrong doers. The powers of the DPP to prosecute in our view were not infringed upon by the impugned sections.”

The judges further said that the record which was before them showed that since 2000, when the Amnesty Act came into force, the DPP had sanctioned the grant of amnesty to 24,066 people and that the number included 29 people who were granted amnesty 2011.

“The applicant [Kwoyelo] applied for amnesty in 2010. In that year 274 people were granted amnesty which was apparently sanctioned by the DPP,” ruled the judges.

”The DPP did not give any objective and reasonable explanation why he did not sanction the application of the applicant for amnesty or pardon under the Amnesty Act, like everyone else who renounced rebellion.”

‘No equal treatment’

In the end, the judges said they were satisfied that Kwoyelo had made out a case showing that the Amnesty Commission and Director of Public Prosecutions had not accorded him equal treatment under the Amnesty Act.

“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,” the judges ruled on September 22, 2011.

Thereafter, the ICD complied with Constitutional court order and it stopped the trial. But the Attorney General joined forces with the DPP in refusing to let go for Kwoyelo.

They instead succeeded in asking the Supreme Court to keep Kwoyelo is prison as they appeal. They had lodged an appeal in the Supreme Court challenging the findings of the Constitutional Court.

In 2015, Justices led by Bart Katureebe, the chief justice, Benjamin Odoki, Jotham Tumwesigye, John Wilson Tsekooko, Christine Kitumba, Galdino Okello and Esther Kisaakye Kitimbo ruled to have Kwoyelo tried.

Nevertheless, they too, like the Constitutional Court, rejected the notion by the Attorney General that Amnesty Act grants blanket amnesty for all crimes.

Justice Katureebe who wrote the lead judgment disagreed with Alaka’s argument that “amnesty for all crimes was necessary in order to promote peace and reconciliation in the country.”

The Amnesty Act, Katureebe wrote, envisaged somebody voluntarily reporting to the authorities. “That is why the term “reporter” was used,” Katureebe said.

“It should not be stretched to mean that a person who has been captured fighting on the battle field can simply declare that he has now renounced the act of rebellion and get a grant of amnesty for grave crimes that person committed.

“That, in my, view is not and cannot be a proper interpretation and application of the Amnesty Act. That person can only be entitled to amnesty for his participation in the rebellion which is different from committing serious personal crimes.”

Katureebe suggested that the kinds of crimes that Kwoyelo is accused of aren’t covered by the Amnesty Act.

Whereas one may understand civilians being killed in cross-fire or when cities are bombed by aircraft or artillery, as being deaths while one is carrying out acts in furtherance of the war, Katureebe ruled it is difficult to see how acts of genocide against a given population, or the willful killing of innocent civilians in their homes when there is no military necessity, can be regarded as being furtherance of the war or rebellion.

“These would be acts carried out unlawfully and wantonly,” he said. “This court cannot ignore reports, some well documented, of terrible crimes planned and committed by some people in Northern Uganda against innocent civilians who had nothing to do with government.”

He added: “Those acts, in my view, do not qualify for grant of amnesty under the Amnesty Act. From the definitions of the term “amnesty” discussed above it is clear that personal crimes or crimes committed willfully against individual civilians or communities would not ordinarily be covered by amnesty.”

With that, Kwoyelo was to stand trial since according to the judges of the highest court in Uganda he was “properly indicted and charged before the International Crimes Division of the High Court”

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