By Hillary Nsambu
FORMER top commander of a rebel group, the Lordâ€™s Resistance Army Thomas Kwoyelo alias Latoni has won a case in which the Constitutional Court ruled that he must be granted amnesty and should not be tried.
â€œWe are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.
We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith,â€ the court ruled on Thursday in Kampala.
Justice Amos Twinomujuni headed the panel. The other members were Justices Constance Byamugisha, Augustine Sebutuulo-Nshimye, Stella Arach-Amoko and Remmy Kasule.
The court noted that Kwoyelo applied for amnesty in 2010 and; in that year 274 people were granted amnesty, which was apparently sanctioned by the DPP.
However, the DPP did not give any objective and reasonable explanation why he did not sanction the application of the applicant for amnesty like he did in other cases.
The applicant acquired a legal right to be granted amnesty or pardon under the Amnesty Act, like everyone else, who renounced rebellion.
â€œIndeed, in terms of section 3(2) of the Act, the applicant, as a reporter â€œshall also be deemed to be granted amnestyâ€¦â€ once he declared to the prison officer that he had renounced rebellion and declared his intention to apply for amnesty under the Act.
The DPP on his part shirked his obligations under the Act. We think it is rather late in the day for the learned DPP to claim his constitutional independence, using the applicant.
He has failed to furnish any reasonable or objective explanation why the applicant should be denied equal treatment under the Amnesty Act,â€ the court ruled.
Caleb Alaka, John Francis Onyango and Ben Ikilai, who represented Kwoyero in the constitutional reference, had earlier contended that he was indicted for offences for which he qualified for pardon and the Amnesty Act.
The lawyers also argued that other LRA commanders like Kenneth Banya, Sam Kolo and over 26,000 other rebels, who were captured in similar circumstances, were granted certificates of amnesty by the DPP and the Amnesty Commission.
The main thrust of the applicant, the lawyers told the court was that he had been discriminated against and was being deprived of equal protection of the law under the Constitution, with people in similar circumstances.
The lawyers argued that top commanders of LRA a rebel group were indicted by the International Criminal Court (ICC) and their client was not one of them.
They also pointed out that the Amnesty Act provides for exclusion by the issuance of a statutory instrument of person the Government deemed ineligible to be granted amnesty under the Act, but he was not one of them for which reason he was eligible for amnesty.
However, the Principal State Attorney, Patricia Mutesi, had opposed the application contending that Kwoyelo could not derive any legal right to pardon, because the Amnesty Act was unconstitutional and, therefore, null and void under the Constitution.
The attorney had also submitted that the court could not validly order the Amnesty Commission to act under the Act once it had been brought to its attention.