JURIST Guest Columnist Matthew C. Kane of the University of Oklahoma College of Law and the Oklahoma City University School of Law says that, while the Ugandan Amnesty Act may have granted amnesty to Thomas Kwoyelo, his future is far from settled . . .

On September 23, 2011, JURIST reported the controversial ruling by the Ugandan Constitutional Court, finding that former Lord’s Resistance Army (LRA) rebel Thomas Kwoyelo was entitled to amnesty under the Ugandan Amnesty Act of 2000. The Act, like several similar grants of amnesty made by Ugandan authorities to resolve earlier conflicts, was broadly supported by civil and religious leaders and implemented in an effort to peacefully end the fighting in northern Uganda. Essentially, the Act affords amnesty to any rebel who renounces the war and surrenders their arms, regardless of what crimes that person may have committed.

Since passage of the Act, more than 26,000 individuals, including members of the LRA who held significantly higher positions within the organization than Kwoyelo, have received amnesty. While the policy of amnesty is subject to much scrutiny and debate, principles of equality and fairness supported the conclusion that Kwoyelo receive the same treatment as others similarly situated. The Constitutional Court’s ruling, however, did not resolve Kwoyelo’s legal status. To the contrary, he has remained in confinement as his personal situation embodies national and international struggles in applying the rule of law, human rights and political and economic realities.

Following the Constitutional Court’s ruling (and a subsequent denial of the government’s appeal), the International Criminal Division of the High Court of Uganda formally ceased Kwoyelo’s trial on November 11, 2011. Nonetheless, the government refused to release Kwoyelo.

On January 25, 2012, Kwoyelo sought and obtained relief in the form of an order of mandamus [PDF] from the High Court of Uganda, compelling the Chairman of the Amnesty Commission and the Director of Public Prosecutions to grant a certificate of amnesty and immediately release Kwoyelo. Again, the government ignored the court order and refused to release Kwoyelo.

Three months later, on March 30, 2012, the Ugandan Supreme Court stayed the orders of the Constitutional Court. However, there are several significant problems with the Supreme Court’s order. First, the Supreme Court — which has been plagued with multiple vacancies for years — currently seats only four (five at the time of the stay) of the seven-justice quorum necessary to rule on constitutional issues. Second, the Supreme Court offered no rationale for its ruling, making the continued detention seemingly de facto arbitrary. Third, the case has already been dismissed by the International Criminal Division and, thus, there are no legal grounds for continuing to hold Kwoyelo. No new or renewed charges have been issued since the Supreme Court stay, and there is no time table for appointment of new Supreme Court justices to constitute the constitutional quorum, thus Kwoyelo remains in indefinite detention.

Beyond the unexplained stay, the broader motivation for Kwoyelo’s continued detention is unclear. Aspects of the government’s legal contentions regarding the scope of the amnesty statute retain some appeal — on one end of the spectrum, the government has suggested that the act should not trump the application of stand-alone, non-war crimes charges of murder and kidnapping under the Ugandan Penal Code provisions. Alternatively, the government is also contending that a domestic statute should not apply to grave breaches of the Geneva Conventions, given their international character (a theory previously recognized in cases before various international tribunals). The same arguments, however, could be made for many of the thousands who had been granted amnesty, which is the reason Kwoyelo’s position is grounded in principles of equal protection.

While there is some local sentiment that Kwoyelo should be held accountable, many suspect that officials believe his trial is necessary to placate international organizations and countries funding post-conflict recovery efforts. Despite having passed legislation specifically addressing war crimes violations and the creation of a war crimes division in the judicial system, there have been no prosecutions. As a result, Radhika Coomaraswamy, the UN special envoy for children and armed conflict, has recently argued for prosecution over amnesty in a similar case. Perhaps the greatest motivation is the ever-present risk of increased involvement by the International Criminal Court (ICC), which, pursuant to Article 17 of the Rome Statute, could make a finding that Uganda is unwilling or unable to carry out the prosecution and institute its own proceedings. ICC intervention into domestic war crimes prosecutions is not an empty threat — on February 7, 2013, the ICC ordered Libya to hand over Abdullah al-Senoussi, Muammar Gaddafi’s former intelligence chief, for prosecution before the tribunal (an outcome his attorneys contend is necessary to afford him a fair trial), despite the Libyan government’s stated desire to try him locally. Yet, lack of war crimes prosecutions is far from the only issue Uganda must address in the international community concerning its attempts to restore order in the north, as allegations of corruption (some $16 million in recovery funds were recently found in private accounts of aides to the Ugandan prime minister) have led to suspension of many national and international contributions.

John Francis Onyango, Kwoyelo’s attorney, has a history of taking on controversial cases and has demonstrated a willingness to advocate for unpopular clients. In addition to defending accused war criminals and terrorist suspects, Onyango recently secured a dismissal of all counts against the British expatriate David Cecil, widely reviled by many Ugandans for producing a play with homosexual content. Having exhausted available domestic options, Onyango filed a complaint on Kwoyelo’s behalf with the African Commission on Human and Peoples’ Rights (ACHPR) on October 19, 2012, which is scheduled for consideration by the ACHPR this week.

The ACHPR was created in 1986 as part of the African (Banjul) Charter on Human and Peoples’ Rights. Among other rights, the Charter expressly provides in Article 7 for “the right of liberty and to the security of the person … [and that] no one may be arbitrarily arrested or detained.” The Charter allows non-state actors to petition the ACHPR, provided certain conditions are met including timely submission and exhaustion of state remedies. It appears that, on occasion, the ACHPR has utilized these procedural requirements to avoid taking up matters otherwise within the commission’s jurisdiction, which might be considered overly politicized or otherwise unsavory. The decisions — officially termed “recommendations” — of the ACHPR, as one might expect from the use of the selected wording, are not legally binding on the states, nor is there any clear procedure for implementation of the recommendations. In the instant case involving a single detainee, Uganda would essentially have to agree to comport with the ACHPR recommendation. The only potential alternative would be for the ACHPR to refer the matter to its sister institution, the African Court on Human and Peoples’ Rights, which, in light of Uganda’s adoption of the Protocol to the African Charter, can issue a binding order on Uganda. However, it will be interesting to see if an institution in its infancy will willingly put its legitimacy at risk for an accused war criminal.

The ACHPR includes one member from Uganda: Med S.K. Kaggwa, a well-known human rights attorney. Interestingly, Kaggwa is the ACHPR’s special rapporteur on prisons and conditions of detention. As such, he is tasked with “conduct[ing] studies into conditions or situations contributing to human rights violations of persons deprived of their liberty and recommend preventive measures.” His view of Kwoyelo’s detention seems likely to have significant influence on any action taken by the ACHPR and the Ugandan response to that recommendation.

Kwoyelo is not the only detainee whose future is uncertain. Caesar Acellam, a top LRA commander, was taken into custody in May 2012. There has been virtually no activity in his case. Beyond those accused of war crimes, there have been a number of notable arrests and detentions, often of journalists or political dissidents, without charges being brought. Hundreds of children have been held without trial for years on end as a result of judicial backlog. Significant efforts made by Bob Goff, an American lawyer so respected by Ugandan authorities that he has been designated as an honorary consul, have resulted in the trial or release of many of these juveniles. Such a positive step could foreshadow broader willingness to address indefinite detentions, yet political will and economic realities leave the ACHPR as Kwoyelo’s best and, perhaps, only remaining option.

Kwoyelo has been accused of horrific crimes, yet many similarly situated were granted amnesty based on a policy that is favorably viewed by a majority of Ugandan citizens and which has helped bring the conflict in northern Uganda to an end. While Coomaraswamy argues that prosecution would “send a strong message to the LRA leadership that they will be held accountable for their actions,” such a message could clearly lead to the continuation and extension of hostilities. Similar concerns arise regarding the ICC’s potential intervention, with some Ugandans suggesting that the ICC is the reason that a complete resolution has not come to fruition. Indeed, Kwoyelo’s year-long incommunicado detention and continued indefinite confinement, now approaching the four-year mark, would seemingly discourage rebels from surrendering to authorities. Regardless of political considerations, if Kwoyelo is denied amnesty the determination must be grounded in reason and based on applicable Ugandan law — not the desire to appease outsiders. Under such circumstances, Kwoyelo should be afforded his right to a fair and reasonably speedy trial. Judicial vacancies and docket backlogs simply cannot justify years of pretrial detention.

The ACHPR’s consideration of Kwoyelo’s case (including its initial decision on whether to hear the case on its merits) and Uganda’s response to any ACHPR recommendation regarding Kwoyelo, as well as its future policy and practice regarding indefinite detentions, are important steps in the continued development of regional human rights policies as well as the rule of law in Uganda.

Matthew C. Kane is an Adjunct Professor at the University of Oklahoma College of Law and a member of the Oklahoma City University Law School National Security Law Workgroup. Professor Kane teaches courses on international criminal law, comparative criminal law, comparative responses to terrorism and various aspects of federal criminal law. He is also a shareholder in the law firm of Ryan Whaley Coldiron Shandy PLLC; his practice is focused on federal criminal defense and complex civil litigation. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of Ryan Whaley Coldiron Shandy PLLC, the University of Oklahoma or Oklahoma City University.

Suggested Citation: Matthew C. Kane, The Indefinite Detention of Thomas Kwoyelo, JURIST – Forum, Feb. 18, 2013, http://jurist.org/forum/2013/02/matthew-kane-kwoyelo-detention.php