After years of domestic legal wrangling, the African Commission on Human and Peoples’ Rights (ACPHR) has decided to hear the case of Thomas Kwoyelo, a former member of the Lord’s Resistance Army seeking to be released from prison under Uganda’s Amnesty Act.
Domestic prosecution of international crimes
In 2009, Kwoyelo, the former commander of operations for the LRA, was captured in the Democratic Republic of Congo as part of a Ugandan military operation. In 2011, he was tried at the International Crimes Division of the Ugandan High Court and found guilty of 12 counts of war crimes, including willful killing, taking hostages, extensive destruction of property and causing serious injury to civilians.
But Kwoyelo requested amnesty, arguing that thousands of LRA rebels had been pardoned under Uganda’s Amnesty Act. He further stated that he was “willing to work with the Government” and swore never to return to rebel activities.
Uganda’s Constitutional Court ruled that Kwoyelo should be given amnesty. Kwoyelo has also made a request for a pardon from Ugandan President Yoweri Museveni.
However, the Ugandan government disregarded the Constitutional Court’s order. In January 2012, Kwoyelo obtained a court order demanding his release from prison. Uganda’s supreme court then suspended the case so that the evidence and the law could be decided before the same court.
The Amnesty Act
The 2000 Amnesty Act was implemented in Uganda to encourage the rejection of rebellion and to allow former LRA combatants to re-assimilate into society. Key portions of the Amnesty Act expired in 2012, but were reinstated in 2013.
Debate over the Act has focused on whether LRA ex-combatants, most of whom were abducted as children or born to mothers held in captivity, qualify as victims. The most disputed argument is whether leadership-level LRA rebels should qualify for amnesty. Still others questioned whether a domestic statute should apply to grave violations of the Geneva Convention, and whether the Rome Statute takes legal priority over the Amnesty Act?
The refusal to grant amnesty sends a strong message to the LRA that rebels will be held accountable for alleged crimes. However, some contend that without amnesty, the threat of prosecution will lead members of the LRA to remain with the group and possibly commit more acts of violence.
Looking for redress at the ACHPR
Seeking release from detention in Uganda, Kwoyelo petitioned the ACHPR to rule on the matter.
The Ugandan government argued that Kwoyelo’s complaint was not admissible because the domestic remedies available to him in Uganda had not been exhausted, as required by the African Charter. However, on 22 May the ACHPR found that—because of undue delays and the lack of a timetable for the Ugandan supreme court to hear his case—Kwoyelo had exhausted all domestic avenues available and that his petition was admissible as such.
Under ACHPR rules, the parties to the case must now submit written arguments according to the evidence provided within 60 days of the admissibility ruling.
Will the ICC get involved?
The ICC has been investigating the situation in northern Uganda since 2004, and in 2005 issued arrest warrants against several leaders of the LRA for rape, murder, mutilation and the forcible recruitment of child soldiers.
Amnesty for war crimes, crimes against humanity and genocide is anathema to the ICC’s Rome Statute, which recognizes no immunities or amnesty for grave crimes.
If in the end Kwoyelo is released from prison under Uganda’s Amnesty Act, the ICC prosecutor could possibly seek to prosecute him in The Hague.