COL Kizza Besigye’s lawyers in the treason case do not want LRA commander Onen Kamdulu to testify. They argue that he cannot be a witness because he is a criminal against humanity.

The law does not say that criminals cannot testify. Convicted criminals act as witnesses all over the world. Right now the former Chief Financial Officer of Enron is testifying from jail against his former Chief Executive while in Italy a Mafia don is giving televised evidence from prison against the recently arrested ‘capo of capos’.

However, Onen Kamdulu is not a convicted criminal. He is indeed a former top LRA commander and therefore must bear some responsibility for atrocities committed by the rebels.

But he voluntarily left the bush to take advantage of the amnesty offered to the rebels. He was not captured on the battlefield like Brig Banya. Consequently he applied for amnesty and was granted it by the Amnesty Commission. Legally he is now a free man who cannot be prosecuted for his part in the rebellion.

Nor has the International Criminal Court issued an arrest warrant for Kamdulu. He is not a wanted man.
Onen Kamdulu is legally no different to any other citizen of Uganda. There is no legal reason why he should not be allowed to testify.

Besigye’s lawyers are making a moral argument, not a legal one, but they are treading a dangerous road. If the defence can exclude prosecution witnesses because they don’t like them, the prosecution will soon start to reject defence witnesses for spurious reasons.

The long-term precedent of this application make it too dangerous for the court to entertain.