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.
On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.
Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation? No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading →
The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.
Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.
Yesterday, the Ugandan Supreme Court ruled that Thomas Kowyelo’s trial should continue in the International Crimes Division (ICD) of the High Court. There is, at present, no full judgement available, so the court’s reasoning cannot be thoroughly digested at this stage. However, by allowing his trial to continue, the Supreme Court has effectively denied amnesty to Thomas Kwoyelo.
Thomas Kwoyelo awaits judgement in the Ugandan Supreme Court on 8 April 2015. (Photo: New Vision)
As noted previously on this blog, a ruling to this effect could have the potential to undermine or even invalidate thousands of amnesty certificates that have been issued by the Amnesty Commission since its creation under the Amnesty Act in the year 2000. Until the Supreme Court’s reasoning on the amnesty issue can be fully assessed, it is unclear how the court came to its decision. But, having been eligible for amnesty under the letter of the 2000 law, if Kwoyelo can now be prosecuted, what does that mean for every holder of an amnesty certificate in Uganda?
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.
On 21 May 2013, the Republic of Uganda became the first state in Africa to publish a comprehensive Draft Transitional Justice Policy. Six years after the Juba Peace negotiations between the Lord’s Resistance Army (‘LRA’) and the Government of Uganda (‘GoU’) ended without being formally signed by both parties, the GoU has committed itself to implementing an holistic Transitional Justice policy, designed to address issues of accountability, reparation and reconciliation in post-conflict Uganda. While still a ‘draft’ policy, it marks an historic step by the GoU in creating a framework designed to implement the provisions of the ‘Agreement on Accountability and Reconciliation’, Item no. 3 of the Juba Peace Agreement.
At the beginning of the Juba negotiations, Joseph Kony and his deputy Vincent Otti sit inside a tent at Ri-Kwamba in Southern Sudan. (Photo credit: CSMonitor)
In summary, the draft Ugandan policy provides for the following central interventions:
Regarding formal justice processes, the GoU shall ensure witnesses are protected and victims can participate in proceedings;
The GoU commits to recognizing traditional justice mechanisms as a tool for conflict resolution;
The GoU shall establish and resource a national truth-telling process;
The GoU shall establish and implement a reparations programme for victims affected by conflict; and
There shall be no blanket amnesty, with those who have already received amnesty encouraged to participate in truth-telling and traditional justice processes.
On the five commitments listed above, some brief reflections: