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Uganda v Kwoyelo (Constitutional Appeal 1 of 2012)

Supreme Court · [2015] UGSC 5 · 2015 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a Constitutional Court decision on a constitutional reference
Decision
Appeal partially allowed; the Constitutional Court's finding of discrimination set aside and the respondent's trial before the International Crimes Division of the High Court ordered to resume

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Holding

The Supreme Court partly allowed the State's appeal. It held the Amnesty Act (Cap 294) grants no blanket amnesty for all crimes, but only for acts of rebellion and crimes committed in furtherance or in the cause of war; grave breaches under the Geneva Conventions Act, such as wilful killing of civilians, fall outside it. The Act therefore does not impinge on the DPP's constitutional prosecutorial powers and is not inconsistent with Uganda's international obligations. The respondent was not discriminated against under Article 21, as there was no evidence that amnesty beneficiaries had committed the same grave crimes. His indictment was proper and his trial before the International Crimes Division should resume.

Facts

The respondent, a colonel and commander in the Lord's Resistance Army (LRA), was captured by the UPDF in Garamba, Democratic Republic of Congo, and detained at Luzira Prison. In January 2010 he declared, before the officer in charge of the prison, that he was renouncing rebellion and sought amnesty under the Amnesty Act. The Amnesty Commission forwarded his application to the Director of Public Prosecutions, stating he qualified, but the DPP did not respond. Instead, the DPP charged him before the Chief Magistrate's Court and he was committed for trial to the International Crimes Division of the High Court on an amended indictment of multiple counts, including wilful killing, hostage-taking and extensive destruction of property under Article 147 of the Fourth Geneva Convention and the Geneva Conventions Act, with alternative counts under the Penal Code. He sought a constitutional reference, arguing he was discriminated against because other LRA commanders, such as Kenneth Banya and Sam Kolo, had received amnesty. The Constitutional Court upheld his reference, prompting the State's appeal.

Issues

  1. Whether the Amnesty Act is inconsistent with the Constitution on the ground that it impinges on the prosecutorial powers of the Director of Public Prosecutions.
  2. Whether the Amnesty Act is inconsistent with the Constitution and Uganda's international law obligations on the ground that it purports to grant blanket amnesty for all crimes, including grave breaches under the Geneva Conventions Act.
  3. Whether the respondent was discriminated against, contrary to Article 21 of the Constitution, by being indicted while other former rebels were granted amnesty.

Orders

  • Appeal partially succeeds.
  • The Constitutional Court's finding that the respondent was discriminated against is set aside.
  • The trial of the respondent before the International Crimes Division of the High Court shall continue.
  • Each party shall bear its own costs in this Court.

Key headnotes

Amnesty — Scope of Amnesty Act (Cap 294) — Distinction Between Blanket Amnesty and Restricted Amnesty
The Amnesty Act (Cap 294) does not grant a blanket amnesty for all crimes committed during a rebellion; amnesty is confined to participation in war or rebellion and to crimes committed in furtherance of, or in the cause of, the war or rebellion, and does not extend to grave personal crimes committed unlawfully and wantonly against civilians.
Director of Public Prosecutions — Prosecutorial Powers — Effect of Amnesty Legislation
Legislation granting amnesty or pardon for certain offences does not in itself violate the prosecutorial powers of the Director of Public Prosecutions under Article 120 of the Constitution; the Amnesty Act preserves the DPP's role to certify eligibility and to prosecute crimes falling outside the amnesty, and is not inconsistent with the Constitution in that regard.
International Law Obligations — Geneva Conventions Act — Grave Breaches and Amnesty
The Amnesty Act is not inconsistent with Uganda's international treaty obligations under the Geneva Conventions Act (Cap 363), because grave breaches such as wilful killing, torture and inhuman treatment of protected persons are not amnestied and remain liable to prosecution.
Pardon — Meaning Under Article 28(10) Distinguished From Prerogative of Mercy Under Article 121
The word 'pardon' in the context of amnesty is wider than the prerogative of mercy exercised by the President under Article 121 after conviction; under Article 28(10) a person who has been granted amnesty may not be tried for the offence forgiven by the State under the amnesty law.
Equality and Non-Discrimination — Article 21 — Evidential Burden in Alleging Unequal Treatment
A person alleging discrimination under Article 21 of the Constitution must show the sphere of unequal treatment and a prohibited ground; the mere fact that others were granted amnesty while the complainant was prosecuted does not establish discrimination absent evidence that those others committed the same or similar grave crimes.
Grave Breaches — Crimes Against Civilians Outside the Cause of War — Amenability to Prosecution
Crimes such as the wilful killing of innocent civilians, not justified by military necessity and carried out unlawfully and wantonly, are grave breaches not committed in furtherance of or in the cause of rebellion, and are therefore not eligible for amnesty and remain subject to prosecution.

Legislation cited (18)

  • Amnesty Act (Cap 294) s.2
  • Amnesty Act (Cap 294) s.3
  • Amnesty Act (Cap 294) s.4
  • Amnesty (Amendment) Act 2006 s.2A
  • Geneva Conventions Act (Cap 363) s.2
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.120(3)
  • Constitution of Uganda 1995 art.120(6)
  • Constitution of Uganda 1995 art.121
  • Constitution of Uganda 1995 art.28(10)
  • Constitution of Uganda 1995 art.79
  • Constitution of Uganda 1995 art.287
  • Constitution of Uganda 1995 art.22
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.8A
  • Penal Code Act
  • Rome Statute of the International Criminal Court art.8
  • International Criminal Court Act 2010

Cases cited (5)

  • Velásquez Rodríguez v Honduras (Inter-American Court of Human Rights, 1988)
  • Barrios Altos v Peru (Inter-American Court of Human Rights, 14 March 2001)
  • Almonacid-Arellano v Chile (Inter-American Court of Human Rights, 26 September 2006)
  • Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa (CCT 17/96) [1996] ZACC 16
  • Muller v Namibia (2002) AHRLR 8 (HRC 2002)
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.