Wakilii

Thomas Kwoyelo alias Latoni v Uganda (Constitutional Petition No. 36 of 2011)

Constitutional Court · [2011] UGCC 10 · 2011 Reference Answered for Applicant ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional reference from the International Crimes Division of the High Court at Gulu, arising in pending criminal proceedings
Decision
Reference answered in the applicant's favour on the discrimination issue; trial of the applicant ordered to cease and the file returned to the International Crimes Division

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Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Constitutional Court held that sections 2, 3 and 4 of the Amnesty Act are constitutional and valid: they do not whittle down the independent prosecutorial powers of the DPP under Article 120, do not interfere with the independence of the judiciary, and do not contravene Article 287, since the Act does not grant blanket amnesty to all wrongdoers and the Minister may declare persons ineligible. However, the Court held that the DPP and Amnesty Commission, having granted amnesty to over 24,000 reporters, gave no reasonable or objective explanation for denying the applicant equal treatment; their acts were discriminatory and inconsistent with Article 21(1) and (2), and thus null and void. The trial of the applicant was ordered to cease.

Facts

For almost twenty years the Lord's Resistance Army (LRA) waged rebellion in northern Uganda, during which lives were lost, property destroyed and children abducted. The applicant states he was abducted by the LRA in 1987 aged 13 and rose to become a commander until captured by the UPDF in the Democratic Republic of Congo in 2008. While detained at Upper Prison Luzira on 12 January 2010, he made a declaration before the officer in charge renouncing rebellion and seeking amnesty under the Amnesty Act. The Amnesty Commission forwarded his application to the DPP on 19 March 2010, considering that he qualified, but the DPP did not respond. The DPP instead charged the applicant before Buganda Road Court and committed him for trial to the International Crimes Division on an amended indictment of over 50 counts under the Geneva Conventions Act. Other LRA commanders, including Kenneth Banya and Sam Kolo, and over 24,000 reporters had been granted amnesty in similar circumstances. The applicant contended he was being discriminated against and denied equal protection of the law.

Issues

  1. Whether the failure of the Director of Public Prosecutions and the Amnesty Commission to act on the applicant's application for a certificate of amnesty, while granting amnesty to others in similar circumstances, is discriminatory and inconsistent with Articles 1, 2, 20(2) and 21(1) and (3) of the Constitution.
  2. Whether sections 2, 3 and 4 of the Amnesty Act are inconsistent with Articles 120(3)(b)(c) and (5)(6), 126(2)(a), 128(1) and 287 of the Constitution.
  3. Whether the alleged detention of the accused in a private residence of a Chieftaincy of Military Intelligence official contravenes Articles 1, 2, 23, 24 and 44(a) of the Constitution.

Orders

  • Sections 2, 3 and 4 of the Amnesty Act held to be constitutional and valid.
  • Declaration that the acts of the Amnesty Commission and the Director of Public Prosecutions denying the applicant equal treatment under the Amnesty Act are inconsistent with Article 21(1) and (2) of the Constitution and are null and void.
  • The file is returned to the court which sent it (International Crimes Division of the High Court) with a direction that it must cease the trial of the applicant forthwith.

Key headnotes

Constitutional Law — Constitutional References — Scope of the Constitutional Court's jurisdiction on a reference
On a constitutional reference the Constitutional Court exercises special and limited jurisdiction confined to the issues framed by the referring court, but it may entertain an unframed issue going to the constitutionality of an Act of Parliament under which a party claims a right, because the court cannot close its eyes to an alleged illegality.
Constitutional Law — Constitutionality of Legislation — Presumption of constitutionality and the purpose-and-effect test
Every piece of legislation is presumed constitutional and the onus of rebutting that presumption rests on the party challenging it; in determining constitutionality the court must consider both the purpose and the effect of the legislation, including its history and the mischief it was intended to cure.
Constitutional Law — Amnesty Act — Independence and prosecutorial powers of the DPP (Article 120)
The Amnesty Act does not whittle down the prosecutorial powers or constitutional independence of the Director of Public Prosecutions; the DPP retains power to prosecute persons declared ineligible for amnesty by the Minister, those who refuse to renounce rebellion, and government agents who commit grave breaches, so sections 2, 3 and 4 are valid.
Constitutional Law — Amnesty Act — International law obligations and treaties (Article 287)
A domestic amnesty law does not contravene Article 287 of the Constitution where it does not grant blanket immunity to all wrongdoers; there is no uniform international standard or practice prohibiting states from granting amnesty as a means of resolving an internal conflict, while insurgents remain subject to international law and prosecutable for crimes against humanity or genocide.
Human Rights — Equal protection and non-discrimination (Article 21) — Unequal treatment by public authorities
Where a public authority has granted amnesty to thousands of persons in similar circumstances, it must furnish a reasonable and objective explanation for denying an individual the same treatment; an unexplained denial of equal treatment is discriminatory, contravenes Article 21(1) and (2), and renders the authority's acts null and void.
Criminal Law & Procedure — Amnesty Act — Reporter deemed granted amnesty while in detention (s.3(2))
A person charged with or under lawful detention for an offence falling within section 2 of the Amnesty Act is deemed to be granted amnesty under section 3(2) once he declares to a prison officer, judge or magistrate that he has renounced the rebellion and declares his intention to apply for amnesty under the Act.

Legislation cited (21)

  • Amnesty Act (Cap 294) s.1
  • Amnesty Act (Cap 294) s.2
  • Amnesty Act (Cap 294) s.3
  • Amnesty Act (Cap 294) s.4
  • Amnesty Act (Cap 294) s.8
  • Geneva Conventions Act (Cap 363) s.2(1)(d)
  • Geneva Conventions Act (Cap 363) s.2(1)(e)
  • Constitution of Uganda 1995 Article 2(2)
  • Constitution of Uganda 1995 Article 20
  • Constitution of Uganda 1995 Article 21
  • Constitution of Uganda 1995 Article 28(10)
  • Constitution of Uganda 1995 Article 79(1)
  • Constitution of Uganda 1995 Article 120(3)
  • Constitution of Uganda 1995 Article 126
  • Constitution of Uganda 1995 Article 128
  • Constitution of Uganda 1995 Article 137
  • Constitution of Uganda 1995 Article 287
  • Constitutional Court (Petitions and References) Rules SI No. 91/2005
  • Vienna Convention on the Law of Treaties 1969 art.26
  • Vienna Convention on the Law of Treaties 1969 art.27
  • Fourth Geneva Convention 1949 Article 147

Cases cited (11)

  • Akankwasa Damian v Uganda (Constitutional Reference No. 5 of 2011)
  • Attorney General v Silvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • South Dakota v South Carolina 192, US 268, 1940
  • P.K. Ssemwogerere & another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Muller & another v Namibia (2002) AHRLR 8 (HRC 2002)
  • Attorney General v Susan Kigula & 417 others (Constitutional Appeal No. 3 of 2006)
  • Barrios Altos v Peru [Inter- American Court of Human Rights] 2001
  • Prosecutor v Morris Kallon & Brima Bazzy Kamara [Special Court of Sierra Leone Cases No. SCSL 2004- 15 AR72 (E) AND SCSL 2004 - 16 AR 72(E)
  • Prosecutor v Auto Furundaija [IT- 95-17/1-T]
  • Hamdard Dawakhana (Wakf) Lal Delhi & another v Union of India and others (1960) AIR 554
  • Azanian Peoples Organization & 7 others v President of South Africa & others (CCT 17/96) [1996] ZACC 16
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.