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.

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The latest twist in the case of Thomas Kwoyelo

by Paul Bradfield

Kwoyelo

Thomas Kwoyelo awaits the start of his trial in Gulu, July 2011. Photo: Justice and Reconciliation Project

A few days ago, former Lord’s Resistance Army (‘LRA’) rebel commander, Thomas Kwoyelo, seemingly made a direct appeal to President Yoweri Museveni to be pardoned for crimes he is alleged to have committed in northern Uganda during the civil war. In an interview with the government-sponsored newspaper, the New Vision, Kwoyelo is quoted as saying:

“Having undergone various rehabilitation programmes, I have realised my past mistakes like any other Ugandan who erred.

I pray that the President gives me a second chance in life.” Kwoyelo, who is currently on a peacemaking and reconciliation programme, said he has benefited from the course and pledged to practice what he has learnt because it calls for reconciliation with God and the society he wronged.

“I am willing to work with the Government at all cost. Once considered for clemency, I swear never to go back to rebel activities,” he said.

This plea for clemency, and the timing of it, is intriguing for a number of reasons. But first, some background and context for those not familiar with the case of Thomas Kwoyelo.

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