Kwoyelo v Uganda [Uganda, Constitutional Court]

• Jurisdiction: Uganda
• Judge: Arach-Amoko,Kasule JJA,Byamugisha,Nshimye,Twinomujuni
• Date: 22 September 2011
• Court: Constitutional Court (Uganda)

Uganda, Constitutional Court

(Twinomujuni, Byamugisha, Nshimye, Arach-Amoko and Kasule JJA)

Kwoyelo

and

Uganda1

Human rights Discrimination and unequal treatment Applicant charged with offences arising from alleged activities during rebellion in northern Uganda Amnesty Act Applicant renouncing rebellion and seeking amnesty Applicant denied amnesty under Amnesty Act Amnesty Commission and Director of Public Prosecutions granting amnesty to others renouncing rebellion Whether reasonable and objective criteria for denying applicant amnesty Whether applicant victim of discrimination and unequal treatment under Amnesty Act Article 21 of Constitution of Uganda

Relationship of international law and municipal law Treaties Customary international law Crimes against international law Amnesty Legality and constitutionality of Amnesty Act Constitution of Uganda Uganda's international law obligations Whether Uganda violating Uganda's obligations under international treaties ratified and implemented in domestic law Geneva Conventions Act Whether Amnesty Act inconsistent with Article 287 of Constitution of Uganda Whether uniform international standards or practices prohibiting States from granting amnesty Guarantees of constitutional independence of Director of Public Prosecutions and judiciary Whether Amnesty Act infringing Articles 120, 126 and 128 of Constitution of Uganda Whether Amnesty Act null and void under Article 2(2) of Constitution of Uganda

War and armed conflict Non-international armed conflict Rebellion in northern Uganda Applicant charged with offences under Geneva Conventions Act Amnesty Act Legality and constitutionality of Amnesty Act Applicant renouncing rebellion and seeking amnesty Whether right to amnesty Whether provisions of Amnesty Act inconsistent with Articles 120, 126, 128 and 287 of Constitution of Uganda Whether Amnesty Act null and void under Article 2(2) of Constitution The law of Uganda

Summary:2The facts:The applicant sought amnesty for offences arising from his alleged activities during the rebellion in northern Uganda. He claimed to have been abducted as a child in 1987 by the organization leading the rebellion, the Lord's Resistance Army (LRA), becoming one of its commanders until he was captured in the Democratic Republic of the Congo by the Uganda People's Defence Forces in 2008. The declaration made by the applicant while in detention, which renounced rebellion and sought amnesty, was submitted to the Amnesty Commission for amnesty under the Amnesty Act3 and forwarded to the Director of Public Prosecutions (DPP) for consideration. The DPP charged the applicant with various offences under the Geneva Conventions Act, which gave effect in Ugandan law to the 1949 Geneva Conventions on the law of armed conflict. The applicant was committed for trial to the International Crimes Division of the High Court. He requested a constitutional reference.

The applicant contended that he qualified for an amnesty certificate under the Amnesty Act for the charged offences. Since amnesty certificates had been granted by the DPP and Amnesty Commission to other LRA commanders and rebels captured in similar circumstances, the applicant claimed that he was the victim of discrimination and unequal treatment contrary to Article 21 of the Constitution of Uganda (the Constitution).4

The respondent argued that the applicant had no legal right to amnesty since the Amnesty Act was unconstitutional and thus null and void. He claimed that the Amnesty Act infringed Articles 120, 126 and 128 of the Constitution,5 which guaranteed the constitutional independence of the DPP and judiciary. He also claimed that the Amnesty Act was inconsistent with Article 287 of the Constitution6 since it granted amnesty to perpetrators of war crimes in violation of international law principles reflected in treaties to which Uganda had assented.

Held:The applicant had not been accorded equal treatment by the Amnesty Commission and the DPP under the Amnesty Act. He was

entitled to a declaration that their acts were inconsistent with Article 21(1)(2) of the Constitution and thus null and void.

(1) Since pardon as a plea in criminal prosecution was a creature of the Constitution,7 it was a constitutionally protected right. Pardon was general in nature, applied to all statutory criminal offences and barred prosecution. It was a constitutional command to be obeyed by all, including the DPP and courts (p. 815).

(2) In enacting the Amnesty Act, Parliament was exercising the powers conferred by Article 79(1) of the Constitution.8 Its purpose of ending rebellion by granting amnesty to those renouncing their activities was not unconstitutional. The Act was also consistent with national objectives, principles of State policy and a historical past characterized by political and constitutional instability (pp. 81516).

(3) The Amnesty Act did not encroach upon the prosecutorial powers or independence of the DPP. The DPP could still prosecute those declared ineligible for amnesty by the Minister or who refused to renounce rebellion. He could also prosecute any government agents who might have committed grave breaches of the Geneva Conventions Act (p. 817).

(4) Since the Amnesty Act did not provide for all rebels to be granted amnesty, there was no violation of Uganda's obligations under international treaties which it had ratified and implemented in domestic law. Uganda's awareness of its international obligations was evident in the indictment of high-ranking LRA commanders by the International Criminal Court under the Rome Statute. While insurgents were subject to international law and prosecution for crimes against humanity or genocide, there were no uniform international standards or practices which prohibited States from granting amnesty (p. 817).

(5) The applicant acquired the same legal right to be granted amnesty or pardon under the Amnesty Act as others who had renounced rebellion. The DPP had not given any objective and reasonable explanation as to why the applicant was refused amnesty (p. 818).

The following is the text of the judgment of the Court:

• 1. Whether the failure by the Director of Public Prosecutions (DPP) and the Amnesty Commission to act on the application by the accused person for grant of a Certificate of Amnesty, whereas such certificates were granted to other persons in circumstances similar to that of the accused person, is discriminatory, in contravention of, and inconsistent with, Articles 1, 2, 20(2), 21(1) and (3) of the Constitution of the Republic of Uganda.

• 2. Whether indicting the accused person under Article 147 of the Fourth Geneva Convention of 12 August 1949 and section 2(l)(d) and (e) of the Geneva Conventions Act, Cap 363 (Laws of Uganda) of offences allegedly committed in Uganda between 1993 and 2005 is inconsistent with, and in contravention of, Articles 1, 2, 8(a) and 287 of the Constitution of the Republic of Uganda, and objectives 111 and xxviii(b) of the National Objectives and Directives Principles of State Policy, contained in the 1995 Constitution of the Republic of Uganda.

• 3. Whether the alleged detention of the accused in a private residence of an unnamed official of the Chieftaincy of Military Intelligence (CMI) is in contravention of and inconsistent with Articles 1, 2, 23(2), (3), 4(b), 24 and 44(a) of the Constitution of the Republic of Uganda.

When the parties appeared before the Registrar of this Court for directions on 12 August 2011, counsel for the applicant, Mr Alaka, informed him that the applicant had abandoned the second issue which deals with the Geneva Conventions. He suggested some slight amendments to the first issue but it remained basically the same.

Ms Patricia Muteesi, Senior Principal State Attorney, had no objection to the proposed amendments but raised another issue which had not been framed for our determination. The issue in question is Whether Sections 2, 3 and 4 of the Amnesty Act are...