The African Commission on Human and Peoples’ Rights has ruled that Uganda must pay former Lord’s Resistance Army (LRA) commander Thomas Kwoyelo for illegal detention and violation of rights to a fair trial. The ruling comes at a critical point in Kwoyelo’s trial, with the International Crimes Division (ICD) court in Uganda set to start hearing testimony in November 2018.
“The commission hereby orders the government of Uganda to pay adequate compensation to the victim (Kwoyelo) for the violation of Articles 3 and 7(1)(a) and (d) of the African Charter,” ruled the African Commission on Human and Peoples’ Rights court in its 62nd ordinary session in Banjul, Gambia last week.
“In accessing the manner and mode of payment of the compensation, the government of Uganda shall consult the victim and his legal representatives (Onyango & Co. Advocates) and shall be guided by international norms and practices relating to payment of compensatory damages,” the court added.
The African court also faulted the Supreme Court of Uganda for failure to provide reasons for its decision when it stayed the execution of the orders of the Constitutional Court which had ruled that Kwoyelo be released from detention and granted amnesty. The court ruled that the action of the Supreme Court denied Kwoyelo a right to be tried within a reasonable time.
“The decision of the African court is significant because it re-affirms the right to a reasoned judicial decision. When the Supreme Court stayed the orders of the Constitutional Court, it did so without giving reason,” said Onyango Owor, the lawyer who represented Kwoyelo at the African Commission.
Mr. Onyango said the African court ruling can “now be cited as legal authority in relation to cases of illegal detention in Uganda.”
In its ruling, the African Commission ordered that the government report back on the progress of Kwoyelo’s compensation within six months. The court urged the Uganda Human Rights Commission to monitor government’s compliance with its decision.
Kwoyelo is facing 93 charges of war crimes and crimes against humanity resulting from his role as a top LRA commander during the war in northern Uganda. Kwoyelo has been in detention since the Ugandan army captured him in 2008, and his trial has progressed at a slow pace. Kwoyelo first appeared before the ICD in 2011. The start of his trial was delayed due to preliminary objections raised by his defense lawyers, who argued that he was entitled to amnesty under Uganda’s amnesty law, which was valid at the time of his capture.
More delays arose as a result of the ICD’s failure to confirm charges against him despite numerous pre-trial hearings. In 2016, three pre-trial hearings were held in April, August, and September, while in 2017, four pre-trial hearings were held in January, February, March, and July.
On August 30, 2018, the ICD finally confirmed the 93 charges against him, thereby paving the way for the main trial to open on September 24, 2018.
The African court ruling followed a complaint by Onyango & Company advocates on behalf of Thomas Kwoyelo on October 19, 2012.
In 2010, the Constitutional Court had ruled that Kwoyelo was eligible for amnesty. Before his release, the state appealed the decision before the Supreme Court, which halted the constitutional court directive and ordered for trial to proceed before the International Crimes Division.
Lawyers for Kwoyelo had argued that their client had applied for and been granted amnesty, but the Director of Public Prosecutions (DPP) refused to issue the certificate of amnesty on grounds that he [Kwoyelo] was a suspected criminal.
The DPP’s refusal was brought to the attention of the Constitutional Court, which ruled that the former LRA rebel was eligible to be given an amnesty certificate just like other rebels who had applied before, a position now confirmed by the African Commission.
The African Commission in its ruling noted that the Amnesty Commission never declared any reporter ineligible for amnesty before issuing amnesty certificates to 24,000 former rebels and 274 more who applied after Kwoyelo’s application.
The Commission opined that “by interpreting and applying the provisions of the Amnesty Act differently without any reasonable justification or explanation, Uganda violated the right to equal protection of the law afforded to the victim as provided under Article 3(2) of the Charter.
The African Commission promotes and protects rights across the African continent.
On September 24, 2018, Kwoyelo’s trial began before the International Crimes Division (ICD) sitting at the High Court in Gulu, northern Uganda. The trial, however, was adjourned until November 5, 2018, following complaints by the defense lawyers that the charge sheet had not been translated into Acholi as earlier ordered by the court.
With the trial set to resume on November 5, 2018, it is not clear what effect the ruling by the African Commission will have on the trial. Kwoyelo continues to be detained at Luzira prison where he has been held for the last eight years.
Written by Moses Odokonyero and Lino Owor Ogora. Moses Odokonyero is media practitioner and public relations expert based in Uganda. Lino Owor Ogora is a peace-building practitioner who has worked with conflict affected communities in northern Uganda and South Sudan since 2006.