Tag Archives: Kwoyelo

“Where to With Transitional Justice in Uganda?” Justice in Conflict blog, 22 April 2012

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“Where to With Transitional Justice in Uganda? The Situation After the Extension of the Amnesty Act,” Justice in Conflict blog, 22 April 2012
http://justiceinconflict.org/2012/04/22/where-to-with-transitional-justice-in-uganda-the-situation-after-the-extension-of-the-amnesty-act/

By Patrick Wegner

Regular readers of this blog are aware that Uganda has both an amnesty law in force since 2000 as well as an International Crimes Division (ICD) at the High Court which is able to try crimes, including war crimes, crimes against humanity and genocide.

The 2000 Amnesty Act is broad, essentially granting ‘blanket amnesty’ for all crimes committed during rebellion if the reporter agrees to renounce armed struggle. Despite the Amnesty Act being in force, the Department of the Public Prosecutor (DPP) in Uganda charged a mid-level commander of the LRA, Thomas Kwoyelo, with crimes against humanity under the Geneva Convention. JiC has reported extensively about the trial in the past, you find all the articles here. Despite several court rulings that Kwoyelo has a legal right to receive amnesty and should be set free, the DPP argued that amnesty is not applicable for crimes against humanity. In violation of these court rulings and due process, Kwoyelo remains in jail at Luzira Prison, Kampala.

The Government of Uganda (GoU) has not taken a clear position concerning the Kwoyelo case and the clash between the blanket amnesty and the existence of a Court Division able to try international crimes. Therefore the upcoming review of the Amnesty Act in May 2012 has been anticipated with uncertainty and curiosity by observers. Will the GoU move away from the past amnesty approach and give in to the DPP that had stated it wanted to bring more charges against former LRA rebels? Or would it uphold the amnesty approach followed since 2000?

Now the Deputy Speaker of the Ugandan Parliament, Jacob Oulanyah, announced on Saturday 14th of April in Gulu that the extension of the Amnesty Act for two years is a done deal and that the law just waits being gazetted. (Thanks to Sharon Nakandha from Avocats sans Frontières Uganda for forwarding the article). This has some important implications for the way forward in transitional justice in Uganda.

It is important to acknowledge that the Amnesty Act was passed with strong civil society pressure from northern Uganda. Many northern Acholi see the LRA rebels as their abducted children and want them to lay down arms and return home. According to asurvey conducted by the Justice and Reconciliation Project (JRP) in December 2011 98 per-cent of the northern population believe that the amnesty is still relevant and should not be abolished. Abolishing the amnesty would thus go against the wishes of the formerly war affected population in northern Uganda. President Museveni has no reason to alienate his northern constituency (he received a majority in northern Uganda for the first time in the 2011 elections) by attacking a law that many see as very useful.

Former LRA Commander Thomas Kwoyelo in the courtroom (Edward Echwalu/Reuters)

According to recent figures from the JRP survey, 22,520 rebels have taken amnesty so far – 48 per-cent of them LRA members. Abolishing the amnesty law now would not have revoked those amnesties but, in the context of the ongoing detention of Thomas Kwoyelo, it would surely have stirred fears among LRA returnees. In my interviews with LRA officers in northern Uganda their fears of being tried years after they returned from the bush, be it by the ICC or the ICD, was very tangible. The fact that the amnesty was prolonged is also important for the military efforts to combat the LRA in the DRC, Central African Republic and South Sudan as it ensures that the formerly abducted fighters have a way out. The Amnesty Act can thus contribute to weaken the LRA by luring out fighters from the ‘bush’.

Yet, the fact that the Amnesty Act will apparently simply be prolonged without any changes also means that Uganda’s national concept for transitional justice remains incoherent and contradictory. Uganda has a blanket amnesty in place that covers any and all crimes, a notion that is on the retreat in international law. Many would indeed even argue that a blanket amnesty is not acceptable in international law: The Inter-American Court for Human Rights ruled so famously in its Barrios Altos case and the UN has instructed its envoys to not endorse blanket amnesties in peace negotiations. Yet, under Uganda’s Amnesty Act even Joseph Kony himself would have a right to receive amnesty.

At the same time, Uganda created a Division that is capable of trying these crimes but will not be able to do so as long as the amnesty remains in place in its current form. The GoU could have solved this problem and brought the Amnesty Act into line with international standards.

A reception centre for LRA abductees (Centre for Children in Vulnerable Situations)

According to the Amnesty Act the Parliament of Uganda has the power to revoke the amnesty for individuals on request of the Minister of Defence. It would thus be theoretically possible to revoke the amnesty for the LRA Commanders most responsible for war crimes and crimes against humanity. Museveni had threatened several times to exclude the LRA commanders from amnesty only to then publicly ask Kony and his Commanders to accept the amnesty offer of the government. The Ugandan High Court even explicitly ruled in October 2005 that amnesty remains available for the LRA commanders. These inconsistencies may re-emerge in the future as the GoU once again failed to clarify its stance. If Joseph Kony was arrested tomorrow, the GoU would be caught between its constitution and the amnesty law on the one side, and its international legal obligations to surrender Joseph Kony and his key commanders to the ICC on the other side.

It is also strange that the GoU apparently did not wait for a report of the Transitional Justice Working Group of the Justice Law and Order Sector (JLOS) of the Government in which JLOS would have published its results of conducting surveys about the amnesty and traditional justice in all of Uganda. The Transitional Justice Working Group is charged with developing a coherent concept for transitional justice in Uganda, presumably providing for a comprehensive approach including amnesty, traditional justice, a truth commission and trials. The JLOS plans are impressive on the paper and could provide a blueprint for transitional justice concepts in post-conflict areas (see here for details).

Why did the decision makers not wait for this valuable feedback before deciding whether and how to prolong the Amnesty Act? One can only hope that the final suggestions of the Transitional Justice Working Group will be taken more seriously for the sake of a coherent and comprehensive approach towards transitional justice in Uganda.

“The Kwoyelo Trial: A Final(?) Roundup,” Justice in Conflict, 13 February 2012

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Note: JRP’s photo from the Kwoyelo trial opening was featured in this post.

“The Kwoyelo Trial: A Final(?) Roundup,” Justice in Conflict, 13 February 2012
http://justiceinconflict.org/2012/02/13/the-kwoyelo-trial-a-final-roundup/

By Patrick Wegner

Last summer Justice in Conflict regularly reported on the trial of former LRA Commander Thomas Kwoyelo. After being arrested by the Uganda People’s Defence Forces (UPDF) in the Democratic Republic of Congo (DRC) in 2009, the Ugandan Department of Public Prosecutions (DPP) decided to charge Kwoyelo with war crimes under the Geneva Conventions and with crimes under national law.

The trial received considerable national and international attention as it was the first case of the newly created International Crimes Division (ICD) of the Ugandan High Court. The ICD had been founded in reaction to questions of accountability that arose during the Juba peace talks between the Government of Uganda (GoU) and the LRA. Meanwhile the Ugandan Parliament has passed the International Criminal Court (ICC) Act, which allows the ICD to prosecute Rome Statute crimes on the domestic level.

In a nutshell, the ICD referred the Kwoyelo case to the Constitutional Court when Kwoyelo’s defence lawyers protested that Kwoyelo had been denied amnesty under the Amnesty Act. In their view, this constituted a violation of equal treatment under the Ugandan Constitution. The Constitutional Court decided in late September 2011 that Kwoyelo should be eligible for amnesty and ordered the ICD to cease the case against him.

Even though the case was stopped, Kwoyelo remained in detention. He then decided to sue the GoU for illegal detention and petitioned the Ugandan High Court for amnesty on 23rd of November 2011. The High Court indeed ruled that Thomas Kwoyelo should be given amnesty and be set free. The Department of Public Prosecutions and the Amnesty Commission are the two competent institutions in this case and decided to meet to consult the Kwoyelo case after the High Court ruling. In early February the Department of Public Prosecutions again denied amnesty to Thomas Kwoyelo, citing that there can be no amnesty for charges of war crimes. Thomas Kwoyelo thus remains imprisoned in Luzira Prison in Kampala to date.

The judges of the ICD in charge of the Kwoyelo case (Justice and Reconciliation Project)

There are several conclusions that can be drawn out of the way the first domestic war crimes trial in Uganda developed. First and foremost, the ongoing back and forth concerning Thomas Kwoyelo’s amnesty again underlines that Uganda is at the crossroads with transitional justice. The actions of the DPP hint at a re-orientation towards more accountability and less amnesty in the future. The DPP has made that clear by repeatedly denying amnesty to Kwoyelo, despite court orders, and by announcing that it has prepared additional cases against former LRA rebels that it will pursue should Kwoyelo be found guilty. As far as I am aware there is no explicit government position on how amnesty and prosecution should relate to each other in the future, and the lack of clarity might well spark fears and unrest among LRA returnees as I have described in a piece last summer.

Secondly, the first case of the ICD has arguably also shown that demands for more positive complementarity, meaning more domestic trials, in ICC cases should be voiced more carefully. Creating institutions that are legally able to try ICC cases in the situation countries is an important goal. I have frequently argued for more positive complementarity at the ICC myself.

Yet just creating these institutions is not enough. One has to ensure that appropriate laws are in place and that the court is qualified to deal with international war crimes cases. There are several examples of how things went wrong in this context at the ICD. In general the GoU was seemingly in a hurry to demonstrate that the ICD was up and running by presenting a first case and preferably a conviction. Some sources have accused the GoU of presenting the ICD with a pre-determined budget and timeline for a ruling in the Kwoyelo case.

Thomas Kwoyelo before the ICD in Gulu

It is important to acknowledge that the ICD is doing something that has never been done anywhere else in Africa. Creating a High Court Division competent of ruling on Rome Statute Crimes is a novel development. The judges include well qualified experts with experience in international criminal law and most of them have attended best-practice training at the ICC in The Hague according to the ICD Registry.

Despite the ICD Project being generally commendable, there are some other problems that emerged from the rushed effort to try a first case at the ICD as quickly as possible. The case before the ICD showed that witness protection laws in Uganda are inadequate. The judges are only able to order ad-hoc measures to protect witnesses if there are clear signs for danger. The Justice Law and Order Sector (JLOS) of the Ugandan Government is working on laws to alleviate this problem, but results are not expected before mid-2012.

Last, but not least, the ICD is so far working with guiding principles instead of full rules of procedure. The guiding principles are open for best practice approaches from other cases of international criminal law, which makes them highly flexible. Yet, a lack of full rules of procedures may lead to problems of fair trial or delays in some cases. All in all the Kwoyelo trial has proven that the ICD is a politically independent institution that is to be taken seriously. Still, it has also shown the remaining weaknesses in the systems and has highlighted the danger of cases becoming politicized. The fact that Kwoyelo is still in jail despite numerous court rulings seems to be an indicator that the DPP was trying to make a political point by indicting Kwoyelo.

Justice in north needs complex solutions, Daily Monitor, 29 Jan 2012

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Justice in north needs complex solutions, Daily Monitor, 29 Jan 2012
http://www.monitor.co.ug/Magazines/ThoughtIdeas/-/689844/1315470/-/item/0/-/9le52p/-/index.html

By Lino Owor Ogora

In July last year, Thomas Kwoyelo became the first Lord’s Resistance Army (LRA) commander to be charged before Uganda’s International Crimes Division (ICD). He was charged with 53 counts crimes against humanity. On September 22, a few months after the commencement of his trial, Uganda’s Constitutional Court ruled that Kwoyelo was entitled to amnesty in line with Uganda’s Amnesty Act of 2000, and ordered his trial to be halted forthwith, a ruling which was further upheld by the High Court on January 25, 2012.

This court ruling has attracted mixed reactions from national and international actors and the public at large. While some people have applauded the court ruling and amnesty alike, others condemned both.

The case of Kwoyelo, however, re-affirms the fact that the pursuit of justice in northern Uganda requires complex solutions beyond merely dragging ex-commanders of the LRA to the courts of law.

In this regard, it is vital to understand the significance of amnesty in stemming the conflict in northern Uganda, and the complications that come with handling individuals who carry dual victim-perpetrator identities.

Uganda’s Amnesty Act of 2000 offers pardon to ‘any Ugandan who has at any time since January 26, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda’. In northern Uganda, amnesty has been instrumental in fostering the return of thousands of ex-combatants. Until August 22, 2008, the Amnesty Commission’s database indicated 22,930 reporters – 50 per cent of these were LRA reporters.

Success in the air
This is an indication that amnesty has registered a tremendous success. If it were not for amnesty, millions of people would still be living within IDP camps. Thousands more children would have been abducted, and even the Juba peace talks which ushered in the prevailing peace in northern Uganda would not have taken place.

Many critics of amnesty may argue that the amnesty law in northern Uganda is no longer relevant given that the LRA have been subdued. However, if you lived in northern Uganda during the period of the insurgency, or even simply visited an IDP camp at the height of the conflict and witnessed the suffering of the people, you would understand and appreciate the prioritisation of ‘peace first, justice later’ and amnesty. It is because of this prioritisation that northern Ugandans, led by religious and traditional leaders were at the forefront of advocating for amnesty as a crucial factor in ending the conflict.

With the LRA still very much alive and committing atrocities in Central African Republic and Southern Sudan, the amnesty law is still needed. In a situational survey conducted by the Justice and Reconciliation Project (JRP) in December 2011 in Acholi region, more than 90 per cent of the respondents believed that amnesty was still relevant. Therefore, rather than argue for the total nullification of the amnesty law, perhaps the question we need to answer is whether amendments are required to specify clearly which commanders of the LRA should or should not be granted amnesty in the event that they return.

In addition, the case of Kwoyelo also raises complex questions regarding the perpetrators who are victims themselves. Kwoyelo was abducted at the age of 15 from his village of Pogo in Pabo Sub-County in Amuru District. Like other children and youth before him, he was carried off into captivity, trained into a child soldier and rose through the ranks to become a high ranking commander. The fate of adult commanders of the LRA who were abducted as children and turned into the killers they are today has been a topic of substantial discussion.

Having been abducted while young and vulnerable, Kwoyelo was a victim. Having committed crimes after the age of 18, Kwoyelo should be able to take responsibility for his actions. What then should be the fate of such individuals? Many human rights activists have often flatly insisted that on becoming adults, such individuals need to take full responsibility for their actions. Why is it that such human rights activists never talk of holding the government accountable for failing to protect children such as Kwoyelo from abduction in the first place? There is need to consider all these circumstances when dealing with cases such as Kwoyelo’s.

Furthermore, there is need to reflect on why cases of NRA/UPDF perpetrators who committed war crimes during the insurgency are not coming up. In northern Uganda, it is a known fact that all armed parties to the conflict, including state and non-state actors, committed war crimes and crimes against humanity.

Court martials not good enough?
While the Juba Peace Agreement calls for handling state actors through other measures such as military court martials, many people in northern Uganda feel the outcomes of these courts would be highly unpredictable, and could lead to many state actor perpetrators being let off the hook.

Military court martial proceedings are often closed to the public and conducted by the army leadership and the participation of victims is often limited. For these reasons, many people in northern Uganda will continue reiterating their call for prosecution of state actors within the ICD. If charges are not brought against the UPDF, or at the very least investigations into state violations conducted, then DPP, runs the risk of being labeled partial.

Finally, beyond pursuing justice in courts of law, there is need to keep the needs of victims and survivors of the conflict in mind. Victims need reparations, compensation, restitution, and restoration of their livelihoods.

Beyond passing guilty or non-guilty verdicts, courts of law such as the ICD will not cater for these very important needs. For reparations to be effected in a proper and timely manner, Uganda requires a reparations policy, which is currently lacking. All these factors should be taken into consideration for justice to prevail in Northern Uganda.

The author is a researcher with the Justice & Reconciliation Project, an NGO based in Gulu District.

http://www.monitor.co.ug/Magazines/ThoughtIdeas/-/689844/1315470/-/item/0/-/9le52p/-/index.html

Julius Alisonga lawyer of Kwoyelo speaks after ruling

Updates on the High Court Ruling of Ex-LRA Commander Thomas Kwoyelo

Statements & Briefs, , ,

Updates on the High Court Ruling of Ex-LRA Commander Thomas Kwoyelo
Kampala, 27 January 2012

By Evelyn Akullo Otwili

Julius Alisonga lawyer of Kwoyelo speaks after ruling
Kwoyelo's lawyer, Julius Alisonga, speaks to the media after the January 25th ruling.

Summary
On 25 January 2011, ex-LRA commander Col. Thomas Kwoyelo appeared before the High Court of Uganda in Kampala. Presided by Justice Vincent Tiwangye Zehurikirize, the Court ordered the Amnesty Commission and the Directorate of Public Prosecution (DPP) to grant Kwoyelo a certificate of amnesty and immediately release him.

To read more, click here.

Kwoyelo is remanded back to Luzira

High Court orders Kwoyelo’s immediate release

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Kwoyelo is remanded back to Luzira
Despite the Court's ruling, Kwoyelo is remanded back to Luzira Prison.

On Wednesday, ex-LRA commander Col. Thomas Kwoyelo appeared before the High Court of Uganda in Kampala. JRP’s Evelyn Akullo Otwili was there to follow the ruling, in which the Court ordered the Amnesty Commission and the Directorate of Public Prosecution (DPP) to grant Kwoyelo a certificate of amnesty and immediately release him.

To read the full 1-page update, click here.

 

Situational analysis on current perceptions of amnesty in Acholi-land

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Today, JRP’s Community Documentation department released their latest publication, a brief situational analysis titled, “To Pardon or to Punish? Current Perceptions and Opinions on Uganda’s Amnesty in Acholi-land.”

Although Uganda’s Amnesty Act entered into force in 2000, it has recently been subjected to a renewed discussion, questioning its relevance in the current context of the conflict. Even in the war‐affected northern region of Uganda, it appears that mixed reactions prevail among the local population. Against this background, this brief situational analysis projects people’s opinions and perceptions on amnesty and provides recommendations for the Amnesty Commission as well as stakeholders concerned.

To read more, click here.

To Pardon or to Punish? Current Perceptions and Opinions on Uganda’s Amnesty in Acholi-land

Statements & Briefs, , , , ,

To Pardon or to Punish? Current Perceptions and Opinions on Uganda’s Amnesty in Acholi-land
Situational Brief: December 15, 2011

To read the full brief, click, here.

Uganda’s Amnesty Act of 2000 offers pardon to “any Ugandan who has at any time since the 26th day of January, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda.”1 In northern Uganda, amnesty has been instrumental in fostering and encouraging the return of thousands of ex-combatants and abductees. The Amnesty Commission’s database indicates that, as of the 22nd August 2008, 22,520 former rebels have reported and been granted amnesty since the entering into force of the Amnesty Act (AA) in 2000. Approximately 48% of the reporters have been former members of the Lord’s Resistance Army (LRA).

Recently, on the 22nd September 2011, Uganda’s Constitutional Court ruled that ex-LRA commander Colonel Thomas Kwoyelo – charged with 12 substantive counts and 53 alternative counts of war crimes and crimes against humanity – was entitled to amnesty in line with Uganda’s 2000 Amnesty Act. The court ordered his trial to be halted forthwith. However, this court ruling attracted mixed reactions from national and international actors. While some applauded the court ruling and amnesty alike, others condemned both. At a national workshop on amnesty in Kampala on the 18th November 2011, this divide was evident with some parties calling for the amendment of the amnesty law. Even in the war-affected regions, where the amnesty law has been instrumental in fostering the return of thousands of ex-combatants, mixed reactions prevail among the local population. Although research on amnesty in northern Uganda has been carried out previously, there is no topical prospect concerning the current situation. Pending review and possible extension and/or amendment, Uganda’s current Amnesty Act is slated to expire in May 2012.

Against this background, the Justice and Reconciliation Project (JRP) carried out a rapid situational analysis between the 28th November and 06th December 2011 in the sub-counties of Bobbi and Unyama (Gulu district) and Koch Goma (Nwoya district), and Gulu and Kitgum towns to gauge the perceptions and opinions on amnesty and whether it is still relevant today in post-conflict northern Uganda. In this research, we spoke to 44 respondents – with a gender ratio of 26 male to 18 female – including local leaders, religious leaders, victims, formerly-abducted persons, and other community members, along with representatives of civil society organizations in Gulu town.

The analysis revealed that an overwhelming majority of our sample group still strongly support amnesty and consider it as vitally important for sustainability of the prevailing peace, reconciliation and rehabilitation. From this survey, a resounding 98% of respondents thought that the amnesty law was still relevant and that it should not be abolished. This situational analysis presents these perceptions concerning the relevance and role of amnesty and provides recommendations to policy-makers, organizations operating in these areas, as well as institutions working with victims and formerly-abducted persons.

To read the full brief, click, here.

“Kwoyelo Amnesty Raises Questions about Ugandan Justice,” International Justice Resource Center, 30 Nov. 2011

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“Kwoyelo Amnesty Raises Questions about Ugandan Justice,” International Justice Resource Center, 30 Nov. 2011
http://ihrlaw.org/2011/11/30/kwoyelo-amnesty-raises-questions-about-ugandan-justice/

In Uganda, amnesty for an alleged Lord’s Resistance Army commander, Thomas Kwoyelo, by the country’s High Court has raised questions regarding the future of transitional justice there.  Kwoyelo had been the first person charged by the International Crimes Division of the High Court for murder and other acts allegedly committed during nearly two decades of attacks by LRA forces on civilians in Uganda and the Democratic Republic of Congo (detailed background here).  Although the grant of amnesty was upheld on appeal, the attorney general has appealed again to the Supreme Court.  Many LRA rebels were granted amnesty under the Amnesty Act of 2000, but Kwoyelo had been denied without explanation when he applied. [Sunday Monitor; BBC; RNW]  Other LRA leaders indicted by the International Criminal Court have yet to be captured (Kwoyelo is not sought by the ICC). [ICC]

Kwoyelo’s trial on charges of grave breaches of the Geneva Conventions began in July 2011 (see HRW report here).  As reported by Human Rights Watch:

Kwoyelo’s defense counsel signalled to the court that they would raise three preliminary objections to the trial. One would be in regard to the state’s failure to apply Uganda’s Amnesty Law to Kwoyelo, although thousands of other LRA combatants have been granted amnesty under the act. The second would be to the fact that they had yet to receive full disclosure of the prosecution file, including exculpatory evidence. The third would be to the application of the Geneva Conventions Act to Kwoyelo’s alleged conduct.

[HRW] The International Crimes Division then sought an interpretation of these issues by the appellate court, which ruled on September 22 that Kwoyelo was entitled to amnesty under the law and as a matter of equal protection.  When the prosecution sought a stay of the order to release him, on November 10, the appeals court confirmed its September ruling  and held Kwoyelo should be freed.  Recently, when Kwoyelo remained in custody despite the court’s order, the International Crime Division of the High Court urged the public prosecutor to apply the amnesty and set him free. [AllAfrica; Justice and Reconciliation; Yahoo;  Insight on Conflict]

As reported by the Justice and Reconciliation Project, residents in Kwoyelo’s hometown in northern Uganda who identify Kwoyelo “as the face of the LRA” blamed him for the atrocities committed there and “feel strongly that he should not return and fear his presence in the area.”  Further, the Project reports, “victims expressed frustration over inconsistent dealings with the ICD and a lack of communication about current developments in Kwoyelo’s case”. [JRP]

FIXED: Broken link to the Kwoyelo situational analysis

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Oops. Yesterday the email sent to our mailing list via Constant Contact contained a broken link to the Kwoyelo situational analysis. To view the full brief, visit http://justiceandreconciliation.com/2011/11/moving-forward-thomas-kwoyelo-and-the-quest-for-justice-situational-analysis/.

Thanks to all of our friends who pointed this out to us, and for all of the great comments we’ve received so far. Keep them coming!

-JRP Communications Team

Kwoyelo with Wardens

Situational analysis on moving forward in the Kwoyelo case

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Kwoyelo with Wardens
Kwoyelo arrives at the Gulu court building on Nov. 11, 2011

Today JRP released a situational analysis titled, “Moving Forward: Thomas Kwoyelo and the Quest for Justice.” While his release is expected soon, questions remain hanging on what should happen to him.  Our analysis revealed that the situation on the ground, and more specifically in his home area of Pabo, is highly volatile and unpredictable, and opinions regarding his reintegration into the community are widely varied. Furthermore, many of Pabo’s residents – including his family members – feel unprepared, uninformed and confused about how to proceed. This situational analysis presents these perceptions concerning the Constitutional Court ruling and makes recommendations for Kwoyelo’s rehabilitation and reintegration in the event that he is released.

To read the full brief, click here.