Amnesty or no amnesty? African Commission weighs in on the Kwoyelo case

Kwoyelo

Thomas Kwoyelo in court. Photo: The Observer

This week it was reported that the African Commission on Human and Peoples’ Rights (“ACHPR”) issued a long-awaited decision on the merits of Thomas Kwoyelo’s complaints against the state of Uganda.

Kwoyelo’s story is a long and complicated one, about which much has been written. In brief, he has been wading through the Ugandan legal system since his capture in 2009. The first ex-LRA commander to be prosecuted before the International Crimes Division of the High Court of Uganda, his defence team initially argued that he was entitled to amnesty under the Amnesty Act 2000, which granted amnesty to anyone who “renounced rebellion”. Over 26,000 people from various rebel groups received amnesty certificates. Kwoyelo’s application was denied as the Director of Public Prosecutions (“DPP”) decided he was to be charged with grave breaches of the Geneva Conventions Act 1964, charges later reformulated as violations of customary international law and the Penal Code Act.

In 2011, the Ugandan Constitutional Court ruled that Kwoyelo was discriminated against by being denied amnesty and should be released, a decision later overturned in 2015 by the Supreme Court on appeal by the DPP. In essence, the Supreme Court ruled that the Amnesty Act was never intended to amnesty crimes against civilians (only acts of rebellion), and that the DPP retained discretion under the Act to bring charges against persons who did not qualify for amnesty. The Supreme Court thus approved the legality of Kwoyelo’s prosecution. In doing so, I have previously argued that the Supreme Court re-defined the prevailing meaning of amnesty in Uganda, as heretofore understood by the relevant stakeholders and local people in northern Uganda, in particular.

In the midst of all this litigation, in October 2012, Kwoyelo filed a complaint with the ACHPR, arguing, inter alia, that he was discriminated against by being denied amnesty while thousands of other LRA fighters received it. It was alleged this amounted to a violation of article 3 of the African Charter, which provides “that every individual shall be entitled to equal protection of the law.” Kwoyelo also alleged mistreatment while in detention. During the last session of the ACHPR, a decision on this complaint was finally reached. The full decision is here.

The decision is interesting on numerous levels, but for now this post will focus on the ACHPR’s handling of the amnesty question.

Firstly, it is quite remarkable that the ACHPR’s decision, rendered in mid-2018, makes no reference to, and is seemingly unaware of, the Ugandan Supreme Court judgement of 2015 (see e.g., para. 45). This is particularly surprising given that Uganda was still sending additional submissions to the ACHPR in September 2015 (see para. 22), five months after the Supreme Court judgement in April of the same year.

This absence is regrettable and a missed opportunity for important legal debate and engagement, because many of the legal stances taken by the Commission are directly addressed in the Supreme Court judgement, which takes an opposing view on many of them, not least of which the issue of Kwoyelo’s eligibility for amnesty.

In short, and like the Constitutional Court did in 2011, the ACHPR held that the denial of amnesty to Kwoyelo was discriminatory and a violation of his right to equal protection under the law, as provided for in article 3 of the Charter. Noting the blanket and unconditional nature of the Ugandan amnesty, the ACHPR opined that being charged with serious crimes was not a stated ground for the denial of amnesty under the Act (para. 181). In the view of the Commission, the criminal charges against Kwoyelo (which include, inter alia, the murder of civilians) “arose out of the alleged activities of the rebellion […] which qualify for amnesty under the Amnesty Act of 2000” (para. 186). As mentioned above, the Supreme Court held precisely the opposite in 2015. Yet, the ACHPR was of the view the differential treatment of Kwoyelo was “without reasonable justification or explanation”, and in violation of his right to equal protection under the law (para. 195). To remedy this violation, the ACHPR ordered Uganda to provide adequate compensation to Kwoyelo (para. 295 (ii)), but did not stipulate the amount to be paid.

These passages from the ACHPR appear significant, because here is an international, quasi-judicial body, handing down jurisprudence which goes directly against the “crystallizing” legal norm that amnesty cannot be granted for serious crimes – most notably expounded upon in the Kallon and Kamara case at the Special Court for Sierra Leone, in Case 0002 at the Extraordinary Chambers in the Courts of Cambodia, and in numerous cases at the Inter-American Court of Human Rights, e.g., Barrios Altos. The extent to which this norm has crystallized is the subject of ongoing academic debate, and indeed my own doctoral research.

Despite the firm holding that Kwoyelo was discriminated and should have received amnesty, later in the decision the ACHPR makes, I respectfully suggest, a legally irreconcilable about-face (at least with regard to its finding on amnesty).

At paras. 283-293, in a section titled “obiter dictum”, and in open contradiction with its earlier finding that Kwoyelo should have received amnesty (which it confusingly attempts to distinguish), the ACHPR explains at length that its finding of discrimination should not be construed as sanctioning amnesty for serious crimes, and considered it necessary to provide further guidance. Thus, rather than departing from the crystallizing, anti-amnesty norm as it initially appeared to do, the ACHPR then realigns itself with this body of opinio juris.

The Commission states that amnesties that preclude accountability measures for gross violations of human rights “violate international customary law” (para. 289), and recalled its own General Comment no. 4 which noted that states should not extend amnesties to the war crime of torture (para. 292), even though, ironically, Kwoyelo is charged with that very crime.

The Commission goes on to state that: “African states in transition from conflict to peace should at all times desist under any circumstances from taking any policy, legal/administrative measures that in fact or in effect grant blanket amnesty as that would be a flagrant violation of international law”, instead advocating for more conditional amnesty that encourages truth-telling and reparations (para. 293). This view echoes the scholarship of Louise Mallinder and others, who argue that conditional amnesty that encourages measures of accountability can be compatible with the requirements of international law.

The ACHPR’s labelling of this section as obiter (and thus of no legal consequence for the purpose of rendering the decision) is, in my view, incorrect. Because the legal question of what acts can be covered by amnesty (and therefore whether Kwoyelo was discriminated by not receiving it) was, in fact, plainly ratio decidendi territory. In any event, by trying to have its cake and eat it on the amnesty question – i.e., finding Kwoyelo was entitled to amnesty for serious crimes, before later endorsing an international norm that holds the opposite – the ACHPR’s decision is left prone in fundamental contradiction.

What impact will this decision have on the recently commenced trial of Thomas Kwoyelo? The answer is: probably none. This is because the ACHPR decided only to order Uganda to compensate Kwoyelo as a result of its finding of discrimination. Indeed, compensation was the only requested relief from Kwoyelo’s lawyers in respect of this violation (see para. 10). There was no request for amnesty to be issued (which would appear to be the logical relief upon a finding of discrimination in this case), or for the trial to be ceased as a result. A judge can only grant relief that is requested.

As such, in the absence of any other order from the ACHPR, Uganda could agree to compensate Kwoyelo (even though this would contravene the Supreme Court’s express ruling that Kwoyelo was not discriminated) and claim literal compliance with the ACHPR’s decision, while proceeding to prosecute him in the ICD. Paradoxically, such prosecution would arguably serve to continue the discrimination the ACHPR deemed to have occurred in the first place (Confused?! So am I. Hang in there).

Since Uganda must update the ACHPR on its compliance within 180 days, we should know in a few months what its response will be. But, for now, Kwoyelo’s trial is scheduled to resume in November pending the resolution of translation issues, and I fully expect that it will.

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