Last week, the Supreme Court of Uganda ruled that the trial of Thomas Kwoyelo, a former mid-level commander of the Lord’s Resistance Army (LRA), must resume before the International Crimes Division (ICD) of the High Court of Uganda. The April 8 decision, Uganda v. Thomas Kwoyelo, Constitutional Appeal No. 01 of 2012, paves the way for the ICD to exercise its judicial mandate to try grave crimes and consequently realize the principle of complementarity that is at the heart of the Rome Statute.

The ICD was established in July 2008 and has the mandate to try war crimes, crimes against humanity, genocide, terrorism, human trafficking, piracy, and other international crimes.  It has the advantage of being a homegrown mechanism whose proceedings, in comparison to the International Criminal Court, will be more accessible to victim communities and the public at large.

Kwoyelo was captured in the Democratic Republic of the Congo (DRC) by the Uganda People’s Defense Forces (UPDF) in 2008. While in custody, he made a declaration denouncing rebellion and sought amnesty. In March 2010, the Amnesty Commission forwarded his application to the Director of Public Prosecutions (DPP) for consideration.  The DPP did not respond to this letter but instead charged Kwoyelo with various offences under Article 147 of the Fourth Geneva Conventions Act. At the start of his trial at the ICD, Kwoyelo filed a constitutional reference to determine, among other issues:

1. Whether the failure by the DPP and the Amnesty Commission to act on his application for a certificate of amnesty, whereas such certificates were granted to other persons in circumstances similar to his, was discriminatory, in contravention of, and inconsistent with the Constitution of Uganda; and
2. Whether his indictment under Article 147 of the Fourth Geneva Conventions Act for offences allegedly committed in Uganda between 1993 and 20005 was inconsistent with, and in contravention of the Constitution of Uganda and of the National Objectives and Directive Principles of State Policy, contained in the Ugandan Constitution.

The Constitutional Court upheld Kwoyelo’s reference and found that the Amnesty Act neither offended Uganda’s international treaty obligations nor took away the prosecutorial powers of the DPP given under the Constitution. The court further held that he had been discriminated against contrary to Article 21 of the Constitution. This prompted the Attorney General’s appeal to the Supreme Court on a range of issues. The much anticipated Supreme Court decision was likely delayed by the lack of quorum, which was resolved with the appointment of judges to the bench.

The lead judgement by Chief Justice Bart Katureebe offers great insight into the peace versus justice debate and clearly highlights the circumstances under which amnesties can be granted. Informed by the experiences of other jurisdictions where amnesties have been granted and international legal practice, the judges arrive at the conclusion that there is no uniform standard or practice in respect of amnesties. Each country determines the approach it should take to address its unique conflict situation. However, they recognize that despite this semblance of liberty, amnesties cannot be granted for grave crimes as recognized under international law.

According to the judges, Uganda opted for a dual conflict response model that seeks to pursue peace alongside accountability. The judges therefore point out that the Amnesty Act of Uganda only covers crimes that are committed in the furtherance or cause of war or armed rebellion. In his judgement, Justice Galdino Okello lists a few examples of such crimes—attacks on military units or police stations, killing members of security forces, acquiring guns and ammunitions to prosecute the war or armed rebellion, and possibly attacks on financial institutions to acquire money to finance the rebellion. Consequently, the judges emphasize that any crimes committed against innocent civilians or communities cannot be categorized as “crimes committed in furtherance of the war or rebellion,” and therefore a person who commits such acts does not qualify for a grant of amnesty under the Amnesty Act.  To that end, the lead judgement specifically mentions that whoever commits crimes under Article 8 (2)(e) of the Rome Statute and grave breaches under Article 147 of the Fourth Geneva Convention is subject to prosecution.

Interestingly, the decision of the judges is influenced by the provisions of the Juba peace agreements, which although not finally executed by both parties, nevertheless demonstrate the aspirations of the Ugandan Government and the Lord’s Resistance Army for individuals to take personal responsibility for grave breaches of the law. The judges assert that impunity cannot bring about peace. The lead judgement goes a step further by proposing a sequential approach that seeks to pursue accountability first before resorting to reconciliation and pardon mechanisms. This systematic approach may however be criticized for its failure to take into account a specific context prior to deciding on which mechanism to pursue first.

The specific findings of the judges are that the DPP has the duty to decide whether or not to proceed with the prosecution of an individual who applies for amnesty. To this extent, the provisions of the Amnesty Act do not in any way infringe upon the independence of the DPP provided for under the 1995 Constitution of Uganda. In the exercise of the mandate to decide on amnesty applications, the DPP is not under any obligation to provide the reasons for the denial of an amnesty request. Furthermore, the judges found that it is immaterial that other persons with similar circumstances to the applicant have been granted amnesty because each case is decided on its own merits. The judges therefore disagreed with Kwoyelo’s assertion of discrimination by the DPP on grounds that other more senior LRA rebel leaders captured in battle like he was had been granted amnesty. This is perhaps the most controversial aspect of this decision because the judges seem to assume the infallibility of the DPP when it comes to amnesty decisions. In their opinion, once persons are granted amnesty, it must always be assumed that the DPP has thoroughly investigated a case and satisfied himself that the applicant falls under Section 3 of the Act and none of the offences for which he or she is charged falls outside this provision. This is particularly concerning as it may also foreclose the opportunity for victims to challenge the DPP’s decision to grant amnesties to certain individuals.

The judges also held that the amnesty law is not contrary to Uganda’s international obligations because it does not grant a blanket amnesty for all crimes. As highlighted above, there is no amnesty granted for crimes that are not committed in the furtherance or cause of war. The DPP is still at liberty to prosecute and the law also accords the Minister of Internal Affairs the authority to declare certain individuals ineligible for a grant of amnesty.

Most importantly, the judges emphasize Kwoyelo’s entitlement to the presumption of innocence until proof of guilt, a fair trial, and the right to raise any defenses available to him during his trial. The court is therefore committed to ensuring that even in the course of trials of grave crimes, the rights of accused persons are protected. National courts are therefore held to the same standard as international courts in the course of dispensing justice.

No date has been set yet for the resumption of Kwoyelo’s trial before the ICD following the orders of the Supreme Court.

The court’s judgement is available here. Sarah Kihika of the International Center for Transitional Justice (ICTJ) Uganda provided the decision to International Justice Monitor.