Kwoyelo amnesty plea flops

By Andante Okanya

The Supreme Court has okayed the trial of ex-commander of the Lord's Resistance Army(LRA) Thomas Kwoyelo, upsetting his amnesty bid.

A panel of  seven Justices led by the Chief Justice Bart Katureebe Wednesday unanimously agreed with the government's chief legal representative and advisor, the Attorney General(AG), that Kwoyelo should face trial.

The judgement implies that the trial which has been on halt since September 22, 2011 at the International Crimes Division of the High Court, has been given green light to resume.

However, the Justices emphasised the pivotal aspect of presumption of innocence until proven guilty.

Thomas Kwoyelo (R), former LRA rebel speaks to his lawyers Onyango Owor(L) and Caleb Olaka at the Supreme Court on Wednesday 8 April 2015.Photo/Roderick Ahimbazwe

Kwoyelo is battling 53 charges of murder, willful killing, and kidnap with intent to kill, aggravated robbery, and destruction of property.

The judgement was delivered in the presence of Kwoyelo and his lawyers Caleb Alaka and Owor Onyango. The AG was represented by principal state attorney Patricia Mutesi.

The judgment in effect, overturns the September 22, 2011 ruling of the Constitutional Court, which stopped Kwoyelo's trial and pronounced that he be granted amnesty.

"As all the other members of the court agree, the appeal partially succeeds. The trial of the respondent at the International Crimes Division of the High Court shall continue," stated Katureebe in the lead judgement.

Other Justices were Benjamin Odoki, John Wilson Tsekooko, Jotham Tumwesigye,  Esther Kisaakye-Kitimbo, Galdino Okello and Christine Kitumba

On January 12, 2010, Kwoyelo, while in detention at Luzira Prison in Kampala, declared before an officer in charge of the prison, that he had renounced rebellion and sought amnesty.

Thomas Kwoyelo (2nd L), former LRA rebel, flanked by prison wardens upon arrival at the Supreme Court on Wednesday 8 April 2015. Photo/Roderick Ahimbazwe

Subsequently on March 19, 2010, the Amnesty Commission was submitted Kwoyelo's application to the Director of Public Prosecutions(DPP), for consideration, as stipulated in the Amnesty Act.

Consequently, the DPP did not respond, and on September 20, 2010, Kwoyelo was slapped with criminal charges for various offences under the Geneva Conventions Act.

He was then charged at the Chief Magistrates Court, Buganda Road in Kampala,  and committed for trial at the ICD.

But on Kwoyelo requested for a reference to the Constitutional Court. He contended that the charges for which he had been indicted, made him eligible for amnesty.

Kwoyelo reasoned that the DPP's refusal to validate him for amnesty, was discriminatory in as far as it deprived him of his Constitutional right, as enshrined in article 21.

The main issues in the reference, were whether Kwoyelo was entitled to amnesty, whether he suffered discrimination, and whether the Amnesty Act is inconsistent with the Constitution.

The Constitutional Court agreed with Kwoyelo's legal team submissions. But the AG appealed to the apex court, stating that the Constitutional Court erred in fact and in law, when it agreed with Kwoyelo's legal team submissions.

During submissions at the Supreme Court, Mutesi, and the now deceased prosecutor Joan Kagezi, argued that the Constitutional Court should not have exonerated Kwoyelo from being prosecuted for committing war crimes and crimes against humanity when he was still one of the LRA commanders.

But Kwoyelo's lawyers stated that he was captured in 1987 on his way to Pabo Primary School and joined the LRA against his will.

However, the Supreme Court pronounced that there is nothing unconstitutional about the Amnesty Act, and that it does not grant blanket amnesty in all criminal cases.

Kitumba noted that the DPP's decline to give Kwoyelo response on his amnesty application, is not proof that he was discriminated against.

"Criminal liability is individual liability. Whether other LRA commanders had been granted amnesty, it does not matter,"Kitumba stated.

Speaking outside court shortly after the judgement delivery, Kwoyelo's lawyers said the court had made a 50-50 decision, and that they would prepare to proceed.