The Supreme Court has Wednesday referred former Lords Resistance Army (LRA) rebel, Thomas Kwoyelo, for trial at the war crimes division of High Court.
Kwoyelo applied for amnesty and Constitutional Court ordered that he is granted amnesty like other LRA rebels who denounced rebellion.
However, the DPP refused to sign his amnesty certificate saying he is not qualified for amnesty.
The DPP then appealed before the Supreme Court against the decision of the Constitutional Court.
Seven judges led by the Chief Justice Bart Katureebe ruled that Kwoyelo doesn’t qualify for amnesty.
They also ruled that the Director of Public Prosecutions is independent and chooses who to prosecute.
According to the Judges, the DPP was simply performing his duty by indicting Kwoyelo for the offences he committed during the war.
The Kwoyelo case
According to the state, Thomas Kwoyelo was not a child soldier in the LRA.
Investigations by the Uganda Police Force established that Kwoyelo enlisted in the LRA as an adult.
In March of 2009, Kwoyelo did not surrender to the Uganda People’s Defense Forces as alleged, but was captured by the UPDF after being wounded on the battle front.
Kwoyelo was not abducted from hospital by Ugandan military intelligence, nor was he subject to inhumane or unfair treatment
While a POW in the custody of the 1st Infantry Division Headquarters in Kakiri, Kwoyelo was not tortured, but rather treated humanely.
He was then transferred to the Uganda Police and informed of his rights, of which he did not partake.
Kwoyelo was brought before the Chief Magistrates court in June of 2009 on two criminal cases; he was committed for trial to the High Court with respect to one of the two cases, Criminal Case No 0118.
Kwoyelo was the first person to be indicted for violations of the Geneva Conventions Act in the High Court’s Crimes Division, which was founded to meet Uganda’s obligation to complement the work of the ICC in prosecuting human rights violations and breeches of the Geneva Conventions
Kwoyelo has failed to show that the circumstances under which the Ugandan state has granted amnesty to members of rebel groups who renounced rebellion were similar to his own arrest and prosecution.
By the time Kwoyelo was arrested, the Government of Uganda and the LRA had signed the Juba Agreement on Accountability and Reconciliation, agreeing that persons alleged to have committed human rights violations would be prosecuted, thus the Amnesty Act would not benefit members of the LRA suspected of being responsible for HR violations
There were also many witnesses who offered evidence to the prosecution as to the atrocities committed by Kwoyelo.
In 2010, Uganda enacted the ICC Act to give the Rome Statute force of law.
When the Amnesty Commission sought approval from the Director of Public Prosecutions on whether Kwoyelo was eligible for amnesty, the DPP advised that the Complainant was charged with breaches of the Geneva Conventions, which constitute international crimes for which amnesty cannot be granted.
There are still pending criminal charges against Kwoyelo in the Chief Magistrate’s Court of Gulu of which the Constitutional court did not order and from which Kwoyelo has not legally applied to be discharged (Case No AA 0119/09).
The ICD ceased trial of case No 02/10 against Kwoyelo, but never issued a release warrant for him, therefore there could not have been any refusal to release him or illegal or unlawful detention.
Thomas Kwoyelo is a former combatant in the Lord’s Resistance Army (LRA), who is from Pabbo in the Amuru district of northern Uganda.
The LRA is a Ugandan armed group that has engaged in a two-decade-long conflict with Ugandan government forces, mostly in northern Uganda beginning in the late 1980s.
In late 2005, LRA fighters crossed into the Democratic Republic of Congo (DRC) and since the end of 2008, LRA fighters have been moving, splintered into small groups, between DRC, Central African Republic and Sudan.
During the conflict, both parties have been implicated in committing extensive abuses against civilians.