Uganda v Kwoyelo (alias Latoni)
| Jurisdiction | Uganda |
| Judge | Kisaakye,Katureebe,Tumwesigye,Okello,Odoki,Tsekooko,Kitumba JJ |
| Date | 08 April 2015 |
| Court | High Court (Uganda) |
Uganda, Supreme Court.
(Katureebe, Tumwesigye, Kisaakye, Odoki, Tsekooko, Okello and Kitumba JJ)
Relationship of international law and municipal law — Treaties — 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 applicable — Whether Amnesty Act impinging on prosecutorial powers of Director of Public Prosecutions — Whether Amnesty Act granting blanket amnesty for all crimes — Whether uniform standards in respect of amnesty — Whether Amnesty Act inconsistent with Constitution of Uganda
Human rights — Discrimination and unequal treatment — Respondent charged with offences arising from alleged activities during rebellion in northern Uganda — Amnesty Act — Respondent renouncing rebellion and seeking amnesty — Respondent denied amnesty under Amnesty Act — Director of Public Prosecutions granting amnesty to others renouncing rebellion — Whether respondent victim of discrimination and unequal treatment under Amnesty Act — Whether respondent entitled to amnesty under Amnesty Act
War and armed conflict — Armed conflict — Distinction between international and non-international armed conflict — Noninternational armed conflict — Rebellion in northern Uganda — Respondent charged with offences under Geneva Conventions Act — Amnesty Act — Constitutionality of Amnesty Act — Respondent renouncing rebellion and seeking amnesty — Whether right to amnesty — Whether Director of Public Prosecutions acting within his powers in prosecuting respondent for specific crimes under Geneva Conventions Act — War crimes and grave breaches of the Geneva Conventions — The law of Uganda
Summary:2The facts:—The respondent, Mr Kwoyelo, sought amnesty for offences arising from his alleged activities during a 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 Congo by the Uganda Peoples' Defence Forces in 2008. The declaration made by the respondent 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 respondent 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 respondent was committed for trial to the International Crimes Division of the High Court. He requested a constitutional reference.
The respondent 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 respondent claimed that he was the victim of discrimination and unequal treatment contrary to Article 21 of the Constitution of Uganda (“the Constitution”).4 The appellant, the Government of Uganda, argued that the respondent had no legal right to amnesty since the Amnesty Act was unconstitutional and thus null and void. It 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. It also claimed that the Amnesty Act was inconsistent with Article 287 of the Constitution since it granted amnesty to perpetrators of war crimes in violation of international law principles reflected in treaties to which Uganda had assented.
On 22 September 2011 the Constitutional Court upheld the respondent's constitutional reference (150 ILR 802). It held that the Amnesty Act did not encroach upon the prosecutorial powers of the DPP given under the Constitution; nor was it inconsistent with Uganda's international treaty obligations. It further held that the respondent had been discriminated against contrary to Article 21(1)(2) of the Constitution. The appellant appealed.6
Held:—The appeal was allowed in part. The trial of the respondent by the International Crimes Division of the High Court was to proceed.
Per Katureebe J (with whom the other judges agreed): (1) The Amnesty Act did not impinge upon the prosecutorial power of the DPP and was not inconsistent with the Constitution in that regard.
(a) Although rarely defined and used inconsistently the term “blanket amnesty” had a working definition of exempting broad categories of serious human rights offenders from prosecution and/or civil liability without the beneficiaries having to satisfy preconditions, including those aimed at ensuring full disclosure of what they know about crimes covered by the amnesty on an individual basis (para. 62).
(b) The Amnesty Act, which defined the role of the DPP, recognized his special powers and constitutional duties. The DPP had the power to take over a private prosecution and the duty to examine Ugandan laws creating prosecutable offences. He had to ensure that anyone that he certified for amnesty qualified for such amnesty under Ugandan laws, such as the Geneva Conventions Act, as well as under the Amnesty Act. He was also to have regard to public interest, the administration of justice and prevention of abuse of legal process. The offences that the DPP was required to prosecute were prescribed in Articles 28(12) and 79 of the Constitution. Pardon or amnesty laws could be passed which were consistent with the Constitution and Uganda's international law obligations and which did not violate the DPP's prosecutorial powers (paras. 63–5).
(c) The Amnesty Act did not grant blanket amnesty for all crimes. The Act's title suggested that the Act was primarily for those who had participated in acts of war or rebellion. The definition of amnesty in the Act had to be read in the context of the purpose of the Act. That, and the dictionary, definition targeted amnesty at political crimes; the Act also implied this. They did not extend to grave crimes committed by an individual or a group for purposes other than in furtherance or in the cause of war or rebellion. The legislature could have stated this had it intended. It was for the DPP to determine the nature of such acts by examining Uganda's laws and international treaty obligations (paras. 66–78).
(d) Amnesty was included in the concept of pardon; the Constitutional Court had not erred in equating pardon to amnesty. The word “pardon” was to be read in context; it was not to be narrowly restricted in the context of Article 121 of the Constitution. The DPP's powers were in the Constitution and independent of the Minister (paras. 79–82).
(2) The Amnesty Act was not inconsistent with Uganda's international law obligations since it did not grant blanket amnesty for all crimes. The Geneva Conventions Act still applied; the indictment of the respondent under Article 147 did not therefore violate the Constitution.
(a) Some treaties, such as the Geneva Conventions, had been incorporated into Ugandan law and could be considered together with the Amnesty Act. A country's commitment to international obligations was assumed to be deliberate, lawful and in its national interest. It should not easily shun such obligations, particularly when human rights were at stake. Those obligations had been confirmed in Article 287 of the Constitution and thus considered to still be in Uganda's best interest. The United Nations Charter and the Universal Declaration of Human Rights provided a common standard for human rights protection (paras. 83–6).
(b) The four Geneva Conventions recognized the occurrence of wars and rebellions and established a legal obligation to prosecute grave breaches of the Conventions. Uganda acceded to those Conventions and enacted the Geneva Conventions Act in 1964. The conflict in northern Uganda was largely not of an international character and therefore subject to common Article 3 to the Geneva Conventions. When the conflict spread to other neighbouring countries, it became international in character. In any event, the Geneva Conventions applied. Crimes which had been committed but not in furtherance of rebellion or in cause of war were grave breaches which had to be punished. Crimes against innocent civilians did not qualify for a grant of amnesty under the Amnesty Act. The International Criminal Court had jurisdiction to prosecute violations of the laws of war even in non-international armed conflict (paras. 87–100).
(3) The respondent had not suffered discrimination or unequal treatment under the law. The DPP was acting within his powers not to certify the respondent for a grant of amnesty and to commence prosecution against him on specific crimes under the Geneva Conventions Act.
(a) The Juba Agreements, while without force of law, indicated that no amnesty was intended for grave crimes. Impunity did not help to bring peace. The DPP must have duly examined the offences committed and reached different conclusions with respect to whether the other rebel commanders and the respondent qualified for amnesty under Section 2 of the Amnesty Act (paras. 101–24).
(b) Crimes in furtherance of war or in the cause of war could not include the wilful murder of civilians. Article 6 of the International Covenant on Civil and Political Rights and Article 22(1) of the Constitution protected the right to life. Prosecution of the wilful murder of civilians was legitimate under the Constitution and international law. It was immaterial how many persons had been granted amnesty (paras. 125–30).
(4) In the Ugandan context there was a need for peace and reconciliation but also a need to avoid impunity for specific crimes constituting...
To continue reading
Request your trial