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Uganda v Kwoyelo (Constitutional Appeal 1 of 2012)

Supreme Court · [2015] UGSC 125 · 2015 Appeal Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from the decision of the Constitutional Court in Constitutional Reference No. 36 of 2011
Decision
Appeal allowed in part; the Constitutional Court's finding that the DPP discriminated against the respondent under Article 21 was set aside, while its finding that the Amnesty Act does not infringe the DPP's powers was upheld.

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Holding

The Supreme Court (allowing the appeal in part) held that sections 2 and 3 of the Amnesty Act do not infringe on the prosecutorial powers or independence of the DPP under Article 120; the DPP's decision to prosecute is not dependent on the Minister's declaration of ineligibility. The Court further held, disagreeing with the Constitutional Court, that the DPP did not discriminate against the respondent contrary to Article 21. Amnesty under the Act covers only crimes committed in furtherance of the rebellion, not other crimes; granting amnesty to others while denying it to a reporter who committed crimes outside section 3 is not unequal treatment, since the circumstances are not the same and criminal liability is individual.

Facts

The respondent, Thomas Kwoyelo (alias Latoni), a former senior commander of the Lord's Resistance Army, was captured by the UPDF and charged with offences including grave breaches under the Geneva Conventions Act. He applied for amnesty under the Amnesty Act, renouncing rebellion, but the DPP declined to sanction a certificate for grant of amnesty and proceeded to prosecute him. The respondent relied on evidence that large numbers of former rebels, including senior LRA commanders Brigadier Kenneth Banya and Brigadier Sam Kolo, had been granted amnesty after renouncing rebellion. He contended he had been denied equal treatment under the Amnesty Act contrary to Article 21 of the Constitution. The Constitutional Court found in his favour. The State appealed to the Supreme Court, contending the Amnesty Act does not infringe the DPP's constitutional powers and that no discrimination had been shown.

Issues

  1. Whether the impugned sections (2 and 3) of the Amnesty Act infringe on the powers of and interfere with the independence of the Director of Public Prosecutions guaranteed under Article 120 of the Constitution.
  2. Whether, in declining to grant the respondent a certificate for grant of amnesty while granting amnesty to other applicants in similar circumstances, the Director of Public Prosecutions discriminated against the respondent contrary to Article 21 of the Constitution.

Orders

  • Appeal allowed in part.

Key headnotes

Constitutional Law — Director of Public Prosecutions — Independence and Powers under Article 120 — Effect of the Amnesty Act
Sections 2 and 3 of the Amnesty Act do not infringe on the prosecutorial powers or interfere with the independence of the Director of Public Prosecutions under Article 120 of the Constitution; the DPP's decision to prosecute is not dependent on the Minister's declaration of a reporter's ineligibility for amnesty.
Criminal Law & Procedure — Amnesty Act — Scope of Amnesty — Crimes in Furtherance of Rebellion
Amnesty under the Amnesty Act extends only to crimes committed in furtherance of the war or armed rebellion, and does not cover other crimes committed in the course of rebellion such as the wilful killing of innocent persons, rape, or wanton destruction of property.
Human Rights — Equality and Freedom from Discrimination — Article 21 — Requirement of Same Circumstances
For there to be unequal treatment contrary to Article 21 of the Constitution the circumstances of the persons compared must be the same; granting amnesty to former rebels who qualify under section 3 while denying it to a reporter found to have committed crimes outside section 3 does not constitute discrimination.
Criminal Law & Procedure — Prosecutorial Discretion — Individual Criminal Liability
Criminal liability is individual; the Director of Public Prosecutions may lawfully charge and prosecute some joint offenders while using others as witnesses, and is not obliged to give reasons for declining to sanction a grant of amnesty, such a decision not being a proper subject of challenge.

Legislation cited (16)

  • Amnesty Act s.2
  • Amnesty Act s.2A
  • Amnesty Act s.3
  • Constitution of Uganda 1995 Article 120(3)
  • Constitution of Uganda 1995 Article 120(4)
  • Constitution of Uganda 1995 Article 120(5)
  • Constitution of Uganda 1995 Article 120(6)
  • Constitution of Uganda 1995 Article 21(1)
  • Constitution of Uganda 1995 Article 21(2)
  • Constitution of Uganda 1995 Article 21(3)
  • Constitution of Uganda 1995 Article 126(1)
  • Geneva Conventions Act (Cap 363) Article 14
  • International Covenant on Civil and Political Rights Article 26
  • International Covenant on Civil and Political Rights Article 27
  • Universal Declaration of Human Rights Article 7
  • Protocol II to the Geneva Conventions 1949 Article 6(5)

Cases cited (2)

  • Muller & Anor Vs Namibia (2002) AHRLR (HRC 2002)
  • Azanian People's Organisation & 7 others Vs the President of South Africa and others (CCT 17/96)
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.