Case against LRA’s Kwoyelo raises constitutional issues

Former rebel leader Thomas Kwoyeli in court
Former rebel leader Thomas Kwoyeli in court.

The trial of Thomas Kwoyelo, Jospeh Kony’s former right-hand man has brought to the fore the challenges this country faces in the justice department. Kwoyelo, 39, who was allegedly abducted and forced into the LRA rebel group in 1987, according to his 75-year-old mother Lujulina Oyeka, was arrested in March 2009 in Garamba Forest in the Democratic Republic of Congo (DRC) during a sweep by regional forces against Kony’s Lord’s Resistance Army (LRA) rebels. The Ugandan government, which is prosecuting Kwoyelo for the war crimes he committed during the insurgency, does not agree that Kwoyelo was abducted and insists that he joined the rebellion willingly.

Contrary to popular belief, Lorem Ipsum is not simply random text. It has roots in a piece of classical Latin literature from 45 BC, making it over 2000 years old. Richard McClintock, a LatinEven then, the issue of whether he was abducted to join Kony or joined willingly is not legally catered for in the laws. However, the major contention in this case lies in how the Constitutional Court will decide on the matter whether the amnesty law is constitutional or not. This will determine whether the trial continues in the International Crimes Division (ICD) of the High Court of Uganda.

Kwoyelo’s defence, led by city lawyer Caleb Alaka, went to the Constitutional Court on August 16th challenging the fact that their client was denied amnesty, although the Amnesty Commission wrote a letter to the Director of Public Prosecutions (DPP) informing him that Kwoyelo was eligible. The DPP did not reply to the letter and instead went ahead to press charges against Kwoyelo. The defence team argues that the DPP’s failure to respond to the Amnesty Commission’s plea to grant their client amnesty was discriminatory treatment and unequal application of the law, which is a violation of the Constitution of Uganda. Defence goes on that many other former LRA rebels who were even more senior in rank than Kwoyelo, were granted amnesty.

At this point, the DPP threw the bomb. He said that the amnesty law is unconstitutional and that Parliament overstepped its mandate when it drafted this law. The DPP refers to Article 120 of the Constitution of Uganda, which states that the DPP shall have the discretion to prosecute or not.

This position by the prosecution left the judges baffled, though they promised to make a ruling on that position. However, it is very likely that this matter will have to be referred to the Supreme Court to decide whether the amnesty law is constitutional or not.

An international lawyer who is following this case closely and preferred to remain anonymous said that the easiest way would be for the constitutional court to refer the matter to the Supreme Court because if the Constitutional Court makes a ruling on whether the amnesty law is constitutional or not, that ruling will be challenged by either the defence or the prosecution according to which side is favoured by the ruling, and that would be forwarded to the Supreme Court anyway.

He added that if this matter is referred to the Supreme Court, there is likely to be drama because such a case is supposed to be decided with the presence of all Supreme Court judges, but the dilemma today is that there is a vacancy in the Supreme Court. One judge is missing, which requires an appointment.

To fill a vacancy at the Supreme Court, the Judicial Service Commission (JSC) nominates and sends names to President Museveni, who makes the appointment from the names that are forwarded to him. However, the JSC is also currently not fully constituted to make the nomination to the President. There is a vacancy at the JSC, which has to be filled. It is also the President who appoints members to the JSC.

In case the vacancies at the Supreme Court and the JSC are filled and the case continues, there is going to be a showdown as pertaining to the amnesty law. It should be remembered that over 26,000 people have so far been granted amnesty under this law and most of them were rebels from different outfits that were fighting government. Some of them are even in big public offices in this country. If it is decided that these people were granted amnesty using an unconstitutional law, what is going to happen to them?

In the other scenario, if it is decided that the amnesty law is constitutional, this will mean that Kwoyelo is also eligible for amnesty, as the Amnesty Commission wrote to the DPP, whereby Kwoyelo will be likely to end up being granted amnesty. This will be a great setback to government, which wanted, through this case, to show the world that Uganda has the laws and capacity to try war crimes.

Another issue is the rebels still in the bushes in Congo and Central African Republic who are following this case attentively to see how it is decided and how it will affect them. A famous international journalist told KD that Kony’s rebels are taking special interest in this case not because Kwoyelo was their man, but because the decision about the Amnesty Law may determine whether they give up the rebellion.

The constitutional court is to announce its position on this case soon, which will decide which direction the Kwoyelo case takes. He is apparently charged with 53 counts of willful killing, leading several village raids and abducting civilians in Northern Uganda between 1992 and 2005. He denied the charges arising from his role as a “colonel” under the command of the LRA supremo Joseph Kony. He appeared in the ICD of the High Court of Uganda in Gulu for the hearing in early July. This court has the authority to try genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime defined in Uganda’s Penal Code Act, the 1964 Geneva Conventions Act and the 2010 International Criminal Court Act (ICCA).

In one of the attacks in 1996, the rebels abducted a group of villagers at a ceremony and forced them to carry their loot. “Those who failed were executed”, said the charge sheet presented on Kwoyelo’s first appearance in court. “The rebels brutally tortured the women. The accused then ordered his forces to kill all the elderly captives. The rebels embarked on a fatal assault of the captives using guns, clubs and axes,” it added.

By Edward Ronald Sekyewa