Communication 431/12 – Thomas Kwoyelo v. Uganda
Communication 431/12 – Thomas Kwoyelo v. Uganda
Summary of the Complaint:
1. The Complaint was received by the Secretariat of the African Commission on
Human and Peoples’ Rights (the Secretariat) on 19 October 2012. The Complaint is
filed by Onyango & Company Advocates (the Complainant) on behalf of Mr
Thomas Kwoyelo (the Victim) against the Republic of Uganda (the Respondent
State or the Respondent), State Party to the African Charter on Human and
Peoples’ Rights (the African Charter or the Charter).1
2. It is alleged that the Victim was a child soldier, abducted by the Lord’s Resistance
Army (LRA) in 1987 in Northern Uganda. In March 2009, following the collapse of
the Juba Peace Talks, it is claimed that the Victim was shot and severely wounded
on the battlefield in the Democratic Republic of Congo.
3. The Complainant further alleges that the Victim was abducted from a hospital
while recovering from his injuries and taken to a private residence in Uganda,
where he was subjected to torture and inhumane treatment for three months. He
was also allegedly denied access to legal counsel and next of kin. In June 2009 and
August 2010, he was charged with several offences under the Ugandan Penal Code
and the Ugandan Geneva Conventions Act of 1964 respectively.
4. The Complainant states that the Victim applied for amnesty under Uganda’s 2000
Amnesty Act. In its decision, the Amnesty Commission declared the Victim was
eligible for amnesty, but Uganda’s Director of Public Prosecutions (the DPP)
refused to issue an amnesty certificate. The matter was brought to the attention of
the Ugandan Constitutional Court in September 2011 by Constitutional Reference
No.36 of 2011, and the Court decided that the Victim qualified for amnesty and
was denied equal protection by the Government of Uganda. The Complainant
1
The Republic of Uganda ratified the African Charter on 10 May 1986.
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avers that the Constitutional Court further ordered cessation of the trial against the
Victim. However, the Government of Uganda, through the Attorney General
brought two applications to the Court of Appeal of Uganda seeking an interim
order for stay of execution of the Constitutional Court decision, which were
dismissed on 10 November 2011.
5. The Complainant avers that on 11 November 2011, the International Criminal
Division of the High Court of Uganda (the ICD) ceased the Victim’s trial. However,
the Government of Uganda refused to release the Victim from detention. On 25
January 2012, the High Court issued an order of mandamus compelling the
Chairman of the Amnesty Commission and the DPP to process and grant amnesty
to the Victim, but to no avail.
6. The Complainant further states that on 30 March 2012, the Supreme Court of
Uganda stayed the execution of any consequential orders arising from
Constitutional Reference No.36 of 2011. It is claimed that the Supreme Court did
not give a reason for disregarding the Constitutional Court decision.
7. The Complainant also questions the impartiality of the Supreme Court alleging
that the Chief Justice of Uganda who headed the panel of judges of the Supreme
Court is also the head of Justice, Law and Order Sector in Uganda, a body that had
previously criticised the decision of the Constitutional Court in Constitutional
Reference No. 36 of 2011. The Complainant alleges that the Chief Justice played a
major role in the formation of the ICD which was meant to try the Victim.
8. The Complainant states that the Supreme Court did not have quorum to consider
a constitutional appeal at the time of stay of execution and on 18 October 2012 still
did not have a quorum and is therefore unable to hear the case until more judges
are appointed to the Supreme Court. It is claimed that there is no timeframe for the
appointment of judges and therefore the Victim remains in indefinite detention.
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Articles alleged to have been violated:
9. The Complainant alleges that the Respondent State has violated the rights of the
Victim as guaranteed in Articles 2, 3, 4, 5, 6, 7.1(a), (b) and (d), 16 and 26 of the
African Charter.
Prayers
10. The Complainant prays the Commission to:
i.
Find a violation of the above mentioned articles of the Charter by the State
of Uganda;
ii.
Order the Government of Uganda to:
a. pay adequate compensation to the Victim for the rights violated;
b. conduct an effective and impartial investigation into the circumstances
of the arrest and detention and the subsequent treatment of the Victim;
c. enforce existing domestic legislation aimed at effecting the State's
positive responsibility in preventing torture, cruel and other inhuman
treatment or punishment; and
d. investigate the violations, and bring the perpetrators to justice.
Procedure:
11. The Secretariat received the Compliant on 19 October 2012, and acknowledged
receipt of the same on 7 December 2012.
12. At its 13th Extra-Ordinary Session, held in Banjul, The Gambia, from 19 to 25
February 2013, the Commission decided to be seized of the Communication. On
27 February 2013, the Secretariat informed the Complainant of the Commission’s
decision to be seized and invited the Complainant to submit its arguments on
Admissibility. By Note Verbale of the same date, the Secretariat informed the
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Respondent State of the seizure decision and transmitted a copy of the complaint
to the State.
13. On 24 April 2013, the Secretariat received the Complainant’s evidence and
arguments on Admissibility. By letter dated 25 April 2013, the Secretariat
acknowledged receipt of the same and forwarded to the Respondent State by Note
Verbale of the same date giving it two months in accordance with Rule 105(2) of
the Rules of Procedure of the Commission to submit its observations on
Admissibility.
14. On 25 June 2013, the Respondent State forwarded to the Secretariat its observations
on Admissibility. By Note Verbale and letter dated 27 June 2013, the Secretariat
acknowledged receipt of the Respondent State’s submissions and forwarded same
to the Complainant requesting it to submit any observations within one month of
the receipt of the Respondent State’s submissions. No observations were received
from the Complainant.
15. During its 54th Ordinary Session held from 22 October to 5 November 2014 held in
Banjul, The Gambia, the Commission declared the Communication Admissible.
16. By correspondence of 22 May 2014, both parties were informed of the
Commission’s decision and the Complainant was requested to submit its
observations on the Merits of the Communication in accordance with Rule 108 of
the Commission’s Rules.
17. The Complainant’s submissions on the Merits dated 24 July 2014 were received at
the Secretariat, which acknowledged receipt by a letter dated 4 August 2014. The
Complainant’s submissions were transmitted to the Respondent State by Note
Verbale dated 4 August 2014 with a request for its observations in accordance with
Rule 108 (1) of the Commission’s Rules.
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18. The Respondent State’s observations on the Merits dated 9 February 2015 were
received at the Secretariat, which acknowledged receipt on 16 February 2015. The
Respondent State’s submissions were transmitted to the Complainant by
correspondence of the same date for its observations in accordance with Rule 108
(2) of the Commission’s Rules.
19. On 24 February 2015, the Secretariat received correspondence from the
Complainant requesting Annexures to the Respondent State’s submissions on the
Merits. The Respondent State’s submissions on the Merits referred to Annexures
that were not available in the document transmitted to the Complainant.
20. On 13 May 2015, the Secretariat acknowledged receipt of the Respondent State��s
submissions on the Merits and requested the Annexures as requested by the
Complainant, and on the same day the Secretariat informed the Complainant that
his request had been forwarded to the Respondent State.
21. On 30 June 2015, the Secretariat sent the Respondent State a reminder requesting
Annexures to its submissions on the Merits.
22. The Secretariat received the requested Annexures from the Respondent State on 3
September 2015, and acknowledged receipt and transmitted the same to the
Complainant via Note Verbale and letter respectively both dated 4 September
2015. In the letter, the Complainant was requested to make its observations, if any,
within thirty days of notification pursuant to Rule 108(2) of the Rules of the
Commission. No submissions were received from the Complainant.
The Law on Admissibility
Complainant’s Submission on Admissibility
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23. The Complainant submits that the Communication meets the terms and
requirements of Article 56 of the African Charter and has presented evidence and
arguments to support the submission.
24. Regarding exhaustion of domestic remedies, the Complainant notes that the
Commission has held that the requirement of exhaustion of local remedies is
founded on the principle that a government should have notice of a human right
violation in order to have the opportunity to remedy such violations before being
called before an international body.2 They note that the Government of Uganda
has had ample notice of the violation as theVictim, since his imprisonment in
March 2009, has sought judicial review at every level and currently remains
detained with no timelines for when his detention may be subject to further review.
25. They argue further that the Commission has set out three criteria which guides it
in considering whether a petitioner has fulfilled the exhaustion of local remedies
requirement namely that the remedy must be available, effective and sufficient.3
They argue that the Victim has pursued all available remedies, to the extent that
they exist. They note that although the Government may argue that the Victim is
held pursuant to a stay issued by the Ugandan Supreme Court, it should be noted
that the Supreme Court did not have a constitutional quorum to decide
constitutional issues at the time when the stay was issued.
26. The Complainant goes further to state that even if the Government argues that a
remedy exists (despite the numerous appeals completed by the Victim), it is clear
that such a remedy is ‘unduly prolonged’ and thus exhaustion of that remedy is
not required.
ACHPR, Communications 25/89-47/90-56/91-10-93 - Free Legal Assistance Group, Lawyers’
Committee for Human Rights, Union interfricane des Droits de l’Homme, Les Temoins de Jehovah v.
DRC (2002), para. 36.
3
ACHPR, Communication 147/95 - 149/96 Sir Dawda K. Jawara v The Gambia, (2000), para. 31.
2
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27. With regards to Article 56 (6), the Complainant notes that the Communication is
submitted within a reasonable timeframe. The Ugandan Supreme Court stayed the
Constitutional Court ruling on March 2012 and since then additional proceedings
have not occurred. Although the Charter does not provide a definitive date for a
communication to be submitted, the Commission has held that it has to be
submitted within a reasonable period of time. To support this, the Complainant
cites the jurisprudence of the Commission in Article 19 and others v. Zimbabwe,
and Darfur Relief and Documentation Centre v. Sudan4.
28. The Complainant states that the Victim perfected his communication with the
Commission on 19 October 2012 as it became clear he would continue to remain
arbitrarily detained and the harm is in fact continuing and ongoing.
29. In relation to Article 56(7), the Complainant submits that the Victim’s case has not
been settled before any other international body and he prays the Commission to
conclude that the Complaint meets the terms and requirements of Article 56 of the
African Charter.
Respondent State’s submission on Admissibility
30. In its submissions, the Respondent State contends that the Communication is not
admissible as it does not satisfy the requirement of Article 56(5) of the African
Charter on exhaustion of local remedies.
31. It states that Article 56(5) requires that all local remedies should be exhausted
before Communications can be referred to the Commission and the rationale for
this is to ensure that the State concerned must have had the opportunity of
redressing the alleged wrong by its own means and within the framework of its
own domestic system.
ACHPR, Communication 305/05 – Article 19 and Others v. Zimbabwe (2010), para. 91; and
Communication 310/05 – Darfur Relief and Documentation Center v. Sudan (2009), para. 75.
4
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32. Citing the jurisprudence of the Commission, the Respondent State asserts that local
remedies have not been exhausted in conformity with the well settled principle of
finality of court process and legal certainty which begets that the Supreme Court
of Uganda hears the Complainant’s case as a last and final court within the
jurisdiction of Uganda.
33. The Respondent State submits that domestic remedies still exist at the domestic
level and argue that the Constitutional Court of Uganda is not the highest court in
Uganda but only a Court of first instance for matters calling for Constitutional
interpretation.
34. It outlines various articles of the 1995 Constitution of Uganda which recognise the
Supreme Court as the final Court of appeal, particularly Article 132(3) which
provides that ‘any party aggrieved by a decision of the Court of Appeal sitting as
a Constitutional Court is entitled to appeal to the Supreme Court against the
decision’.
35. The Respondent State avers that the judgment in Constitutional Reference No. 36
of 2011 was delivered on 22 September 2011 and the Attorney General being
dissatisfied with the said judgment appealed against the whole judgment on 23
September 2011.
36. They assert that the appeal is currently pending hearing and final determination
and further assert that following the lodgement of the appeal, the Respondent State
successfully applied to stay execution on the grounds that if execution was allowed
to proceed it would in effect render the appeal nugatory.
37. The Respondent State submits that the Supreme Court of Uganda is duly
constituted and has quorum to hear and entertain the appeal. They further submit
that the Court be allowed an opportunity to hear and pronounce itself on the
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finality of the matter regarding the release of the Victim from detention pending
the appeal which is the same issues the Commission is being invited to consider.
38. The Respondent State argues that in the discharge of its judicial responsibilities
regarding appeals from the Constitutional Court, the Supreme Court is governed
by Article 128 of the Constitution which guarantees the independence of the
judiciary in the exercise of judicial power and safeguards against direction or
control from any person or authority in Uganda.
39. The Respondent State notes that in the event that the Supreme Court of Uganda
confirms and upholds the decision of the Constitutional Court of Uganda in
Constitutional Reference No.36 of 2011, the Victim will be released and adequately
compensated for any wrong visited upon him. The Respondent State requests the
Commission to declare the Communication inadmissible as the Victim could still
avail himself of remedies locally.
Analysis of the Commission on Admissibility
40. The African Charter in Article 56 sets out seven requirements that a
Communication brought under Article 55 of the Charter must satisfy in order to
be considered admissible by the Commission. The Commission held in Article 19
v. Eritrea that failure to satisfy any one or more of those requirements render the
Communication inadmissible.5
41. The Commission notes that the sole contentious issue between the parties on the
admissibility of the communication is with respect to the requirement in Article
56(5) of the Charter. After carefully examining the Communication and the
submissions of the parties, the Commission is of the view that Articles 56 (1), (2),
5
ACHPR, Communication 275/03 – Article 19 v. Eritrea (2007), para. 43.
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(3), (4), (6) and (7) are satisfied. To this end, the analysis on admissibility will focus
on the requirement contained in Article 56(5) of the Charter.
42. Article 56(5) of the African Charter provides that Communications received by the
Commission shall be considered “if they are sent after exhaustion of local
remedies, if any, unless it is obvious that this procedure is unduly prolonged”.
43. The Commission has asserted that the rationale for the exhaustion of local
remedies rule both in the Charter and other international instruments is to ensure
that before proceedings are brought before an international body, the State
concerned must have had the opportunity to remedy the matter through its own
local system, thus preventing the Commission from acting as a court of first
instance rather than a body of last resort that complements national systems.6
44. In the present Communication, the Complainant contends that all local remedies
have been exhausted to the extent that they exist and that the Victim remains
detained illegally with no timeline for when his detention may be subject to further
review. The Respondent State on the other hand argues that local remedies have
not been exhausted since the Supreme Court before which an appeal is pending
and which is the court of final jurisdiction in the Respondent State has not yet been
given the opportunity to hear the matter. The Respondent State also avers that the
Supreme Court has the necessary quorum to hear the appeal.
45. The Commission notes that the Victim’s right to liberty was upheld by the Court
of Appeal on 10 November 2011, following earlier decisions by the Constitutional
Court to that same effect. The Commission also notes that the Attorney General
filed an appeal to the Supreme Court against this decision on 23 September 2011,
and further applied for a stay of execution of the decision of the Constitutional
Court. The Commission notes further that the Victim has remained in detention
6
Sir Dawda Jawara v. The Gambia, n 3 above, para. 31
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since the appeal was lodged and there is no indication as to when the Supreme
Court will hear the matter because it does not have the requisite quorum to do so.
46. While it is the contention of the Respondent State that the Supreme Court has the
necessary quorum and should be given the opportunity to hear the appeal, the
Commission has confirmed that the Court does indeed have a quorum since 1
August 2013 but does not have the necessary quorum to hear appeals of a
constitutional character which can only be decided with a quorum of 7 judges.7
47. It follows that at the material time, the Supreme Court did not have the requisite
quorum to hear the victim’s case. In the present circumstances, the Commission
considers that the Supreme Court cannot be considered an available remedy for
purposes of exhaustion of local remedies given that at the material time, it could
not hear the case in question and there was no indication of the time when the
Court will be regularly constituted to hear such cases. It is evident therefore that
the remedy could not be utilised in the present case and cannot therefore be
invoked to the detriment of the Complainant.8
48. The Respondent State has failed to persuade the Commission that at the material
time, the Supreme Court as a local remedy was available and effective both in
theory and in practice. Although the Respondent State has demonstrated that the
Supreme Court can in theory hear the appeal lodged by the Attorney General, it
has failed to prove that it could be made use of in practical terms by the victim in
the circumstances of lack of quorum. It would therefore be unfair to ask of the
victim to await the outcome of the appeal before the Supreme Court while
languishing in detention, without any knowledge of when his detention will be
Information obtained during meetings with the Principal Judge of the Supreme Court, His
Lordship, Justice Yorokamu Bamwine (28/08/2013) and the Minister of Justice and Constitutional
Affairs of Uganda, (29/08/2013),following a promotion mission undertaken by the Commission to the
Republic
of
Uganda
from
26
–
30
August
2013.
See
also
http://www.judicature.go.ug/data/smenu/7//Supreme_Court.html
8
Sir Dawada Jawara v. Gambia, n 3 above, para 34.
7
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reviewed and through no fault of his own. In the circumstances, the Commission
considers that all available local remedies have been duly exhausted.
Decision of the Commission on Admissibility
49. In view of the above, the Commission declared the Communication Admissible.
Consideration on the Merits
Complainant’s Submission on the Merits
Alleged Violation of Article 3
50. The Complainant contends that the refusal of the Respondent State to grant the
Victim amnesty as it did to over 24,000 other individuals amounts to a violation of
his right to equal protection under the law. The Complainant submits that even
after the Victim’s application for amnesty was denied, the Respondent State
granted amnesty to 274 other people. The Complainant opines that there is no
objective or reasonable explanation why the Victim was ‘selectively treated’ in this
manner by the Respondent State.
51. The Complainant submits that in Legal Resource Foundation v. Zambia, the
Commission noted that “the right to equality is very important […]. It means that
citizens should expect to be treated fairly and justly within the legal system and be
assured of equal treatment before the law and equal enjoyment of the rights
available to all other citizens.”
52. The Commission, according to the Complainant, has previously asserted that “[…]
equality before the law also entails equality in the administration of justice. In this
regard, all individuals should be subject to the same criminal and investigative
procedures in the same manner by law enforcement and the courts […].”
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53. The Complainant also makes reference to the Commission’s jurisprudence
wherein it states that “[…]parties can only establish that they have not been treated
equally by the law, if it is proved that the treatment received was discriminatory
or selective...”.
54. In light of the above arguments, the Complainant prays the Commission to find a
violation of Article 3 of the Charter by the Respondent State.
Alleged Violations of Articles 4, 5, 16(1) and (2)
55. The Complainant avers that the Commission provided its clearest explanation of
Article 5 in Ken Saro-Wiwa v. Nigeria when it opined that “Article 5 of the Charter
prohibits not only cruel but also inhuman and degrading treatment. This includes
not only actions which cause serious physical or psychological suffering, but which
humiliate or force the individual against his will or conscience”.
56. The Complainant also makes reference to Civil Liberties Organisation v. Nigeria
wherein the Commission found that deprivation of family visits constitutes
‘inhuman treatment’ and that deprivation of light, insufficient food and lack of
access to medicine or medical care constitute violations of Article 5.
57. The Complainant states that despite being visibly wounded on his arrest, the
Victim was not given medical assistance and when he complained he was
allegedly beaten by state agents, who retorted that the available drugs were meant
only for soldiers of the UPDF. It is alleged that it took more than 48 hours before
the Victim was properly examined by a medical personnel. The Complainant avers
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that to date the Victim still experiences pain all over his body and as a result pays
regular visits to the prison hospital.
58. The Complainant further submits that he was taken to the private residence of an
official of the Chieftaincy of Military Intelligence for over three (3) months where
he was forced to sleep on the floor, without any bedding and was afforded no toilet
facilities. He was also allegedly deprived of sleep during interrogations and
allowed only about three hours a day for exercise and given only one meal a day.9
59. According to the Complainant, the acts against the Victim include the infliction of
physical, mental and emotional injury, which have affected his physical and
mental wellbeing contrary to Article 16 of the Charter.
60. In this regard, the Complainant submits that the Respondent State failed in its
positive obligation to prevent cruel, inhuman and degrading treatment and
investigate the allegations impartially, in violation of Articles 5, 4 and 16 of the
African Charter.
Alleged Violation of Article 6
61. The Complainant states that in Zegveld and Ephrem v. Eritrea wherein it found a
violation of Article 6 of the Charter, the Commission observed that all detained
persons ‘must have prompt access to a lawyer and to their families’, and ‘their
rights with regards to physical and mental health must be protected’ and that ‘the
lawfulness of detention must be determined by a court of law ‘or other appropriate
judicial authority’, and it should be possible to challenge the grounds that justify
prolonged detention on a periodic basis.’
The Complainant refers the Commission to paragraphs 14 &15 of the complainant’s affidavit,
attached as Annexture, in support of the reference Constitutional Court dated 15th August 2011.
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62. The Complainant submits that despite the Victim surrendering to the Ugandan
Peoples Defence Force (UPDF) in March 2009, he was shot in the process. The
Complainant further submits that shortly thereafter, and prior to recovering from
his injuries, the Victim was abducted from the hospital by Ugandan military
intelligence, taken to a private residence where he was subjected to inhumane
treatment and tortured for three months. According to the Complainant, during
this time the Victim was neither allowed access to legal counsel nor produced
before any court.
63. The Complainant states that in June 2009 the Victim was charged with various
offences under Uganda’s penal code and moved to Gulu Prison (Northern
Uganda) and thereafter to Luzira Upper Prison (Central Uganda). On 26 August
of 2010, the Victim was charged with violation of Uganda’s 1964 Geneva
Conventions Act. The Complainant submits that nearly a year passed after the
Victim’s arrest before he was allowed access to legal counsel or next of kin.
64. While in detention, the Complainant submits, on 12 January 2010 the Victim
petitioned for amnesty under Uganda’s Amnesty Act, and was declared eligible
for amnesty by the Amnesty Commission. However, the Complainant avers that
the DPP refused to issue the Victim an amnesty certificate.10
65. On 22 September 2011 the Constitutional Court, following a petition by the
Counsel of the Victim dated 25 July 2011, made a unanimous decision that the
Victim qualified for amnesty and was denied equal protection. The Complainant
states that the Constitutional Court also ordered for the trial of the Victim before
the ICD to cease forthwith.11
Submitted as Annexure is a copy of a letter from Uganda’s Amnesty Commission stating that
the complainant qualified and was eligible for Amnesty.
11
Submitted as Annexure is a copy of the decision of Uganda’s Constitutional Court in
Constitutional Reference 36 of 2011 declaring that the complainant was not treated equally under the
law and ordering the cessation of his trial by the International Crimes Division.
10
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66. The Complainant states that on 1 November 2011, The Government of Uganda
filed Constitutional Application 50 of 2011 in the Court of Appeal seeking to stay
the decision of the Constitutional Court in Constitutional Reference 36 of 2011. On
the same day, the Complainant submits, the Government filed Constitutional
Application 51 of 2011 in the Court of Appeal seeking an Interim Order to stay
execution of the same Constitutional Court decision.
67. The Complainant states that on 10 November 2011, the Court of Appeal dismissed
both applications and upheld the Victim’s right to liberty and equal treatment
before the law, and accordingly, on 11 November 2011, the International Criminal
Division ceased the Victim’s trial. However, the Complainant avers that the
Government of the Republic of Uganda refused to release the Victim from
detention and that he was held in illegal and unlawful detention without a lawful
warrant. According to the Complainant, the Victim sought relief at the High Court
and on 25 January 2012 the Court issued an Order of Mandamus compelling the
Chairman of the Amnesty Commission and the Director of Public Prosecutions to
process and grant a Certificate of Amnesty to the Victim for his immediate
release.12
68. The Complainant alleges that the DPP and Chairman of the Amnesty Commission
again failed and/or refused to obey the court directive and as a result the Victim
remained in unlawful and illegal detention. On 30 March 2012, the Complainant
states, the Supreme Court stayed the execution of any consequential orders arising
from Constitutional Reference No. 36 of 2011. The Complainant submits that this
was done without giving any particular reason for curtailing the right to liberty of
the applicant whose trial had already been ceased and whose right to liberty and
equal treatment before the law had been upheld by the Constitutional Court. The
Submitted as Annexure is a copy of an order of the International Crimes Division ceasing the
trial of the complainant.
12
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Complainant submits that the Supreme Court, without legal reason, has
perpetuated the illegal detention of the Victim.
69. The Complainant draws the attention of the Commission to the period between 11
November 2011, when the trial of the Victim was ceased and no fresh charges
proffered against him, to 30 March 2012, when the Supreme Court stayed all orders
from the Constitutional Court. This period of detention, according to the
Complainant, was particularly unlawful and violated Article 6 of the African
Charter as there were no pending charges against the Victim yet the Respondent
State refused to release him and kept him in arbitrary detention without any
indication of when his trial would take place.
70. The Complainant submits that rights and freedoms of the Victim should only be
deprived as stipulated by domestic and international law, and all other
circumstances clearly constitute a violation of the right to security and liberty of
the Victim, amounting to arbitrary detention in violation of Article 6 of the Charter.
Alleged Violation of Article 7
71. Relying on the decision of the Commission in Haregewoin Gebre-Sellaise &
IHRDA (on behalf of former Dergue officials) v. Ethiopia, the Complainant
submits that ‘the right to an impartial hearing within a reasonable time is one of
the cardinal elements of the right to a fair trial. The Article [Article 7] is specially
designed to ensure that the charges which the penal procedure places on the
individual are not unremittingly protracted and do not produce permanent harm.
An individual who is accused and held in custody is entitled to have his or her
case resolved on a priority basis and conducted with diligence.’
72. The Complainant asserts that on 30 March 2012, the Supreme Court stayed the
execution of any consequential orders arising from Constitutional Reference No.
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36 of 2011. The Supreme Court did not give any particular reason for curtailing the
right to liberty of the applicant whose trial had already been ceased and his right
to liberty and equal treatment before the law had been upheld by the
Constitutional Court.
73. The Complainant contends that the Chief Justice who headed the panel of Judges
of the Supreme Court that stayed the execution of the consequential orders was
also the head of the Justice Law & Order Sector in Uganda, a body that had
previously severely criticized the decision of the Constitutional Court in
Constitutional Reference No. 36 of 2011.13 The Chief Justice never distanced
himself from this statement which was publicly available.
74. The Complainant further asserts that the Chief Justice also played a pivotal role in
the formation of the International Crimes Division – the Division of the High Court
meant to try the Victim. The Complainant submits that the above actions and
omissions show that the tribunal that stayed the enjoyment of the right to liberty
was partial. The Complainant remarks that justice must not only be done but must
also be seen to be done.
75. The Complainant avers that at the time the Supreme Court stayed the enjoyment
of the right to liberty by the Complainant, it did not have quorum to entertain a
Constitutional Appeal and as of 18 October 2012 still did not have a quorum.
Furthermore, there was no timeframe when more judges would be appointed to
the Supreme Court and yet the Supreme Court knowing these facts and knowing
that the trial of the Complainant had already been ceased by the International
Crimes Division and also knowing that there were no fresh charges against the
complainant stayed the enjoyment of his right to liberty.
Annexed to the Submission of the Complainant is a copy of a Press statement of the Justice Law
& Order Sector in Uganda (which the Chief Justice Heads) allegedly severely criticizing the decision of
the Constitutional Court in Constitutional Reference No. 36 of 2011.
13
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Communication 431/12 – Thomas Kwoyelo v. Uganda
76. The Complainant asserts that the Victim was detained without any indication on
when he would appear in court as this depended on when the President of the
Republic of Uganda would appoint new judges to the bench.
77. The Complainant submits that the above-mentioned actions are in breach of
Article 7 of the Charter.
Submission of the Respondent State on Merits
78. The Respondent State disputes several of the submissions of the Complainant
presented as facts, and contends that some of the alleged facts are far from the true
account of the events.
79. The Respondent State disputes and denies that the Victim was a former ‘child
soldier’ in the Lord’s Resistance Army (LRA), or that he ever ‘surrendered’ on the
battlefield, as alleged. The Respondent State claims that credible investigations by
the Ugandan Police Force established that the Victim was never abducted by, nor
was he a child soldier in the LRA, but that he enlisted in LRA as an adult and rose
through the ranks to become a high ranking ‘Colonel’ and rebel Commander.14
80. The State avers that in March 2009, the Victim was shot during active armed
combat against the UPDF in Garamba Forest, DRC. He did not ‘surrender’ as
alleged, but on the contrary he was captured by the UPDF after being shot and
wounded on the battlefield. In fact, Victim only ‘renounced’ rebellion in January
2010 in his application for amnesty which was made while on remand in Uganda
Government Murchison Prison (Luzira), after being charged with criminal
offences.15
Paragraph 1.1. of the ‘Summary of the Case’ in the Chief Magistrate’s Court - attached to
Complainant’s Facts as A, and paragraph 2 of the Indictment attached as B1.
14
15
The Amnesty Declaration Form attached to Complainant’s Facts as C.
19
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81. The Respondent State also denies that the Victim was ever abducted from hospital
by Ugandan military intelligence, detained in any private residence, or subjected
to inhumane treatment and torture, or that he was denied access to his next of kin
or legal counsel or court.
82. 7. The Respondent State states that after his capture, he was transferred to Uganda
and taken to the general military hospital in Bombo, Kampala, for medical
treatment. After recovery, he was taken to the 1st Infantry Division Headquarters
in Kakiri, Wakiso District, for full recuperation as a prisoner of war (POW).16
83. The Respondent State further states that while in recuperative custody, he was
treated humanely and in accordance with the law, and he was not tortured as
alleged. He was informed of his right to receive visitors and his right to engage
legal counsel, but did not request to do so.
84. According to the Respondent State, after establishing that the Victim was
suspected of having committed criminal offences, the Uganda Police requested the
UPDF to hand him over for prosecution, which was done. He was lawfully
detained by Police as a criminal suspect and was informed of his right to receive
visitors and engage legal counsel, but did not request to do so.
85. The Respondent further submits that under the Ugandan legal system, where a
criminal case involving capital offences (e.g. murder) is brought by the State
against a person, the suspect or accused is availed State Counsel at the expense of
the State if he has no legal representative. However, even after Criminal cases No.
AA 118/09 and 119 /09 were cause-listed for court appearance in June 2009, the
Victim was offered to be availed State Counsel by the Government of Uganda, but
he declined it.
16
Copy of the affidavit of Lawrence Ogen Mungu in Constitutional Reference No. 36 /11 attached
as R1.
20
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Communication 431/12 – Thomas Kwoyelo v. Uganda
86. The Respondent avers that there were two criminal cases against the Victim for
which he was produced before the Chief Magistrates Court at Gulu in June 2009:
i.
Criminal Case No. AA 0118/09 and Gulu CRB 1219/09 in respect of
kidnap with intent to murder contrary to Section 243(1)(a) of the Penal
Code Act.
ii.
Criminal Case No. AA 0119/09 and Gulu CRB 1220/09 in respect of
kidnap with intent to murder contrary to Section 243(1)(a) of the Penal
Code Act.
87. The Respondent State avers that when the Victim was produced before the Gulu
Chief Magistrates Court, he was committed for trial to the High Court in respect
of Criminal Case No. 0118/09.
88. In September 2010, the Victim was charged before the Buganda Road Chief
Magistrate’s Court with unlawful killing in Criminal Case No. A-9/2010, Gulu
CRB 337/2004, and committed to the High Court (War Crimes Division, later renamed as the International Crimes Division).17
89. The Respondent admits that the Victim was the first person to be indicted for
violations of the Geneva Conventions Act in the High Court’s International Crimes
Division (ICD). In July 2011, the Victim was arraigned in the ICD on charges of
twelve (12) grave breaches of the Fourth Geneva Convention (incorporated in
Ugandan domestic law through the Uganda Geneva Conventions Act of 1964) and
fifty-three (53) alternative counts of Penal Code violations such as murder,
kidnapping, and aggravated robbery, allegedly committed between 1996 and 2009.
The Respondent refers to a copy of the Magistrate’s Court proceedings attached to
Complainant’s submissions.
17
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90. The State avers that the ICD is a special division of the High Court which was
created in 2008 in furtherance of the Government’s obligations under the 2007 Juba
Agreement on Accountability and Reconciliation. Further the ICD was aimed at
meeting Uganda’s obligation to complement the work of the International
Criminal Court [ICC] in prosecuting gross violations of human rights and grave
breaches of the Geneva Conventions (war crimes).18
91. In response to allegations relating to the denial of amnesty, the Respondent states
that whereas it did grant amnesty to various members of rebel groups in different
parts of Uganda who renounced rebellion, the Complainant has not discharged his
duty to show that the circumstances of their grant of amnesty were similar to the
Victim’s own arrest and prosecution.
92. The Respondent is of the view that the Complainant has not adduced evidence that
the said amnesty reporters from different rebel groups in Uganda (including
women and formerly abducted child soldiers and persons) were suspected or
accused of committing or had particular responsibility for gross human rights
violations, war crimes, or international crimes. As per the State, there is no
evidence that these reporters had been criminally charged with such crimes at the
time of applying for amnesty. The Respondent opines that such facts cannot be
assumed in the absence of witness evidence of their involvement in such crimes.
93. According to the Respondent State there was evidence of the Victim’s
participation or responsibility for grave breaches of Geneva Conventions, for
which he is being prosecuted. In respect to the grant of amnesty to former LRA
high ranking Brigadiers Sam Kolo and Kenneth Banya, the Respondent states that
the circumstances of their arrest were different from those prevailing at the time of
the Victim’s arrest.
Attached to the submissions of the Respondent are excerpt from the ICD website and the
Agreement on Accountability and Reconciliation, and its Annexure.
18
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Communication 431/12 – Thomas Kwoyelo v. Uganda
94. First of all, the two were arrested in 2005 and 2004 respectively, whereas the Victim
was arrested in 2009. By the time of the Victim’s arrest, the Complainant states
that the Government of Uganda and the LRA had signed the Juba Agreement on
Accountability and Reconciliation and the Annexure thereto, in June 2007 and
February 2008 respectively. In these documents, they agreed that persons alleged
to have committed serious crimes or human rights violations would be prosecuted,
and formal courts would exercise jurisdiction over persons alleged to bear
particular responsibility for the most serious crimes, especially those amounting
to international crimes.19
95. Thus, the Respondent State asserts that by signing the Agreement the Government
and LRA impliedly agreed that the Amnesty Act would not benefit any members
of LRA suspected of particular responsibility for gross violations of human rights
e.g. due to their level of command/control. The Respondent opines that unlike
Brigadiers Kenneth Banya, Sam Kolo and Col. Onen Kamdulu, the Victim was
arrested after the signing of the Juba Agreement, and was being prosecuted for
having particular responsibility for international crimes.20
96. Secondly, according to the Respondent State, at the time of Mr. Kwoyelo’s arrest
in 2009, LRA had been driven out of Uganda into Eastern DRC, and relative peace
had returned to Northern Uganda, with many people previously living in
Internally Displaced Peoples (IDP) Camps having returned to their homes after
many years. Accordingly, there were many people confident and willing to testify
against the LRA, and many witnesses availed evidence to the police/prosecution
as to the many atrocities allegedly committed by the Victim.21 However, the
Respondent State contends that it was not possible to use any such witness
evidence to prosecute former rebel commanders of similar crimes after they had
already been granted amnesty in the past due to a lack of witness evidence.
Copies of the Agreements attached to the submissions of the Respondent State.
Amended Indictment of 5th July 2011 which refers to his command responsibility in the alleged
crimes attached as evidence by the Respondent State.
21
The Respondent refers to a statement from the ICD website attached to its submission.
19
20
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97. Thirdly, the Respondent argues that in 2010 Uganda enacted the International
Criminal Court Act (ICC Act), whose purpose was, among others, to give the 2002
Rome Statute of the International Criminal Court (the Rome Statute) force of law,
to implement Uganda’s obligations under the Rome Statute, to make further
provisions in Uganda’s law for the punishment of international crimes of genocide,
crimes against humanity and war crimes, and to enable Ugandan courts to try,
convict and sentence persons who commit such crimes.22
98. For the foregoing reasons, the Respondent avers that the Victim’s circumstances
were materially different from those of similarly high ranking officers like
Brigadiers Kenneth Banya and Sam Kolo who were captured in 2004 and 2005
respectively.23
99. The Respondent further submits that under the Amnesty Act, amnesty certificates
are not issued by the DPP but by the Amnesty Commission.24 In addition, after the
Amnesty Commission sought for clearance from the DPP on whether the Victim
was eligible to receive amnesty, the DPP advised that the Complainant was
charged with grave breaches of the Geneva Conventions of 1949, which constituted
International Crimes for which Amnesty cannot be granted.25 The Respondent
further avers that the DPP is constitutionally mandated to control investigations
and prosecutions and in the exercise of his functions, he or she is not subject to the
direction or control of any person or authority. The DPP enjoys unfettered
discretion in the exercise of his or her powers and functions.26
The International Criminal Court Act, 2010 attached as Annexture to the submissions of the
Respindent.
23
Affidavit of Kwoyelo in Constitutional Court Reference No. 36 of 2011 attached as Annexture
to the submissions of the Respindent.
24
A copy of the Amnesty Act attached to submission.
25
A copy of DPP’s letter attached to submission.
26
Excerpt of Article 120 of the Constitution attached to submission.
22
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100.
In response to the issue of criminal charges, the Respondent states that the
criminal charges against the Victim in Criminal Case No. AA 0119/09 (Gulu CRB
1220 /09) in the Gulu Chief Magistrates Court - in respect of kidnapping with
intent to murder contrary to Section 243 (1)(a) of the Penal Code Act - were never
withdrawn by the DPP. In that regard, the Respondent states that there are still
pending and subsisting criminal charges against the Victim in the Chief
Magistrate’s Court of Gulu, in respect of which the Constitutional Court did not
make any order, and from which the Victim has never legally applied to be
discharged by the Magistrate’s Court.
101.
The Respondent State contends that whereas the ICD ceased the trial of Case
No. 02/10 which was before it, it did not issue a release warrant for the Victim
which would legally authorize the prison officials to release him from remand
custody. In the absence of a release warrant, the Respondent denies the allegation
that there was any refusal to release him or that the Victim was held in illegal and
unlawful detention.27
102.
The Respondent State further states that the Victim’s lawyers instead of
applying for the said release warrant from the ICD, opted to file a civil suit in the
High Court Civil Division, seeking an order of mandamus to compel the Amnesty
Commission and the DPP to issue him an amnesty certificate for his immediate
release.
103.
The Respondent State also submits that whereas the High Court issued an
Order of Mandamus compelling the Chairman of the Amnesty Commission and
the DPP to grant certificate of amnesty to the Victim for his immediate release, at
the time the order was made (on 25th January 2012), the mandate of the Chairman
27
A copy of the affidavit of the Prisons Officer Magomu Wilson attached as evidence.
25
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Communication 431/12 – Thomas Kwoyelo v. Uganda
and Commissioners of the Amnesty Commission had expired and they lacked the
legal mandate to sign any amnesty certificate.28
104.
It is further stated that in March 2012, before the amnesty certificate could be
legally issued, the Supreme Court issued an order staying the execution of any
consequential orders arising from Constitutional Reference No. 36 of 2011. 29 This
order was binding on all institutions including the Amnesty Commission, the DPP
and the Prison authorities. The ‘consequential orders’ whose execution was stayed
included the grant of an amnesty certificate by the Amnesty Commission, or any
order to release the Victim from remand custody.
105.
The Respondent further avers that the Attorney General applied for stay of
execution of consequential orders arising from the judgment of the Constitutional
Court pending its intended appeal against the court’s decision. The Application
was made under Rules 2(2) and 6(2)(b) of the Supreme Court Rules, and clearly
stated the various grounds on which it was sought.30
106.
Regarding quorum, the Respondent submits that the quorum issue was
resolved on 20 June 2013 when new Judges were appointed to the Supreme Court
of Uganda, making it fully constituted. The appeal (Appeal No. 1 of 2012) against
the Constitutional Court’s decision in Reference No. 36 / 11 was accordingly
argued before a fully constituted Supreme Court bench in March 2014 and is
presently awaiting judgment. As such the Respondent denies the allegation that
the Victim has remained in indefinite detention.
107.
As far as the alleged partiality of the Chief Justice of the Supreme Court is
concerned, the Respondent State disputes that a paper authored by the Justice Law
and Order Sector (JLOS) - headed by the Chief Justice - in expressing concerns
Copies of explanatory letters from the Amnesty Commission and Ministry of Internal Affairs,
and response from Solicitor General attached to submission.
29
A copy of the Supreme Court Order is attached as evidence.
30
A copy of the Application and supporting affidavit of Lino Anguzu are attached to submission.
28
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about the implications of the Constitutional Court’s decision did not amount to a
‘severe criticism’ of the decision.
108.
The Respondent further maintains that the JLOS is a multi-sector organization
comprised of various member institutions. According to the Respondent State the
Chief Justice is the head of the Judiciary, which is a member institution of the JLOS.
The Chief Justice also heads the JLOS Leadership & Steering Committee, which is
composed of different heads of JLOS member institutions. Thus Justice Benjamin
Odoki, who was the (then) Chief Justice was the head of the Steering Committee.
109.
However, the Respondent State indicates that the paper cited in the Complaint
was authored by the Transitional Justice Working Group, of which the Chief
Justice is not and has never been a member, nor did he ever endorse the views in
the said paper.
110.
The Respondent further states that the paper did not ‘severely criticize’ the
judgment of the Constitutional Court as alleged. It presented the Group’s views
on the Amnesty Act and its impact on Uganda’s national and international
obligations and outlined the challenges presented by the Act to the State’s ability
to fulfil its duty to ensure justice and accountability for serious human rights
violations, crimes against humanity and war crimes committed in Uganda.
111.
The Respondent also submits that after the judgment had been delivered, the
Permanent Secretary of the Ministry of Internal Affairs wrote to the Chairman of
the JLOS Transitional Justice Working Group, requesting the Chairman to advise
the Minister on whether he should sign a Statutory Instrument extending the
Amnesty Act which was due to expire in May 2012.31
31
A copy of the letter dated 26 March 2012 attached to submission.
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Communication 431/12 – Thomas Kwoyelo v. Uganda
112.
The JLOS Transitional Justice Working Group accordingly reviewed the Act
and made recommendations as to its role and purpose, its effect, its compatibility
with national and international laws, and the various options for the future of the
Act. According to the Respondent State the review did not refer to the
Constitutional Court’s judgment.32
113.
The Chief Justice, the Respondent notes, as Chairman of the JLOS Leadership
& Steering Committee thereafter convened a meeting where the relevant JLOS
member institutions agreed by consensus on which of the options recommended
should be implemented by the Minister of Internal Affairs. The discussion also did
not refer to the Constitutional Court’s judgment. Whereas the Chief Justice only
chaired the meeting, he did not state any personal views on the Group’s Report or
the Amnesty Act.
114.
In relation to the role of the Chief Justice in the creation of the ICD, the
Respondent contends that the ICD was established in July 2008 by the then
Principal Judge Hon. Justice James Ogoola pursuant to Article 141 of the
Constitution of the Republic of Uganda 1995 under the High Court (International
Crimes Division) practice directions, Legal Notice No. 10 of 2011. It is one of the
Divisions of the High Court of Uganda and was established just as the Criminal
Division, Commercial Division, Land Division, Family Division and AntiCorruption Division, which were established for administrative convenience and
efficiency.
115.
In light of the above, the Respondent State submits that it has not violated
Articles 3, 4, 5, 6, 7.1(a), 7.1(b), 7.1(d), 16 and 26 of the Charter.
32
A copy of the Group’s Review attached to submission.
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116.
The Respondent State also responds to the arguments of the Complainant
proffered under each of the articles of the Charter alleged to have been violated,
which is summarized below.
Alleged Violation of Article 3
117.
The Respondent asserts that the Victim has at all times been given equal
protection of the law. He was availed legal representation at State expense but he
declined the offer/right. It is the Respondent’s submission that in the case of
Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development v. Republic of Zimbabwe, the Commission observed rightly that the
meaning of the “right to equality carries with it the connotation of equal
treatment”, however, the Respondent also adds that equal treatment before the
law ought to be applied under similar conditions.
118.
The Respondent concedes that equal treatment means that all persons within
the jurisdiction of the State should expect to be treated fairly and justly and be
assured of equal enjoyment of the rights. The Respondent argues that the
Complainant was availed all those rights enjoyed by ordinary Ugandans. The
Respondent adds that when the Victim was remanded, he was however, held in
lawful custody pending trial for various offences that he is alleged to have
committed against civilian populations. The Complainant stands accused of grave
breaches and violations of human rights of, among others, women and children
and further for violations of international humanitarian law. He has been
produced before the Ugandan Courts of Record in keeping with the principle of
due process and equality before the law. The Respondent State submits that it is
not in doubt that one of the salient provisions under the Uganda Constitution of
1995 is the presumption of innocence until proven guilty.
119.
That notwithstanding, it is further the Respondent’s argument that one of the
core principles under the principle of protection of the law, that have been
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endorsed by the United Nations System as a whole, is that ‘States must (a) ensure
that those responsible for serious violations of human rights and humanitarian law
are brought to justice and (b) assurance of victims of an effective right to a remedy,
including reparations’. The Universal Declaration of Human Rights proclaims:
‘Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted to him or her by the constitution
or by law’ (Art. 8).
120.
The Respondent submits that the phrase ‘every individual shall be equal before
the law’ means that both victims and perpetrators of human rights violations are
guaranteed equal and effective protection and perceived perpetrators are
subjected to due process of the law.
121.
It is the Respondent’s submission that a party can assert that they have not been
treated equally by the law, however, they have to demonstrate that the conditions
under which others perceived to have been treated selectively were indeed similar.
122.
The Respondent State argues that the Complainant has not demonstrated to the
African Commission that the conditions of the Victim’s capture were similar to
those of other LRA combatants and that he has been accorded different treatment
from those other LRA Combatants/amnesty reporters. The Respondent avers that
the circumstances of Mr Thomas Kwoyelo’s capture were different from those of
other senior Commanders. He refused to surrender, was wounded and captured
on the battlefield and taken before courts of law to be tried for alleged human
rights violations. The Victim did not renounce rebellion until after 2010 when he
was produced in the courts of law for several crimes. Whereas Brigadier Kenneth
Banya was captured in 2004 and Brigadier Sam Kolo surrendered on 15 February
2005 following hours of inter-LRA battles between Kolo and Otti camps. These two
cases also took place well before the Juba Agreement and talks. the Victim
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123.
Regarding equal protection under the law, the Respondent avers that the
Complainant was successful in the Constitutional Court and in the mandamus
application in the High Court of Uganda. However, the Respondent avers that it
is not in doubt that there were several cases filed against the Victim and the
Decision of the Constitutional Court ordering cessation of the trail was in respect
of one case. The State being dissatisfied with the decision of the Constitutional
Court applied successfully to the Supreme Court for stay of execution of its orders
pending the appeal filed before it. Further, the execution of the mandamus orders
granted in High Court were also stayed by the High Court pending the
determination of the appeal before the Supreme Court as not doing so would
render the appeal nugatory.
124.
It is thus the Respondent’s argument that the Complainant has not
demonstrated that he has been treated selectively and thus his case does not
warrant a declaration that the Respondent State has violated Article 3 of the
African Charter.
Alleged Violation of Article 6
125.
The Respondent submits that in 2007 the Government of Uganda encouraged
the leaders and ranks of LRA to embrace the Juba Agreement, however, the rebel
outfit opted otherwise. In March 2009 the Victim was captured on the battlefield
in the jungles of Garamba Forest in the Democratic Republic of the Congo and
transported to Uganda to undergo recuperation and face trial. He was accorded
Legal Counsel by the State but he opted to hire private lawyers.
126.
The Respondent avers that despite the orders of the Constitutional Court, no
Release Warrants were ever sought by the Victim or his lawyers and none were
issued by the Court in order to effect his release from lawful custody. Further, the
Supreme Court issued orders staying execution of the Constitutional Court Orders
pending disposal of the appeal. The Complainant is thus in lawful custody and
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thus the Respondent has not acted in breach of Article 6 of the African Charter in
that regard.
Alleged Violation of Articles 4, 5 and 16 (1) and (2)
Article 5
127.
The Respondent submits that the circumstances pertaining in Nigeria during
March 1995, leading to the decision in Civil Liberties Organization v. Nigeria must
be distinguished from the current case. In that case, civilians were tried by the
Military Tribunal headed by General Aziza and were convicted for being
accessories to treason and sentenced to life imprisonment. The trials were
conducted in secrecy and suspects were not given an opportunity to state their
defence or to have access to their lawyers or families. They were not made aware
of the charges against them until their trial.
128.
According to the Respondent State, it is trite that each case ought to be decided
on a case by-case-basis. In the instant case, the Respondent claims, the
Complainant was availed Legal Counsel at the Respondent’s expense and even
allowed frequent visits from his Mother. The Respondent further submits that it is
a general rule that it is for the party, which alleges a fact to support its claims with
proof of the existence of that fact. It goes against this rule for the Complainant to
allege torture without producing medical evidence of the same.
129.
The Respondent submits that the Complainant has not availed the Commission
with forensic documentation in proof of torture and other forms of physical and
psychological abuse, as required by the Istanbul Protocol, to justify a finding of
violation of Articles, 4, 5 and 16 of the Charter.
130.
The Respondent denies that the Victim, a former LRA Commanding officer,
was ‘forced to sleep on the floor, without any bedding and was afforded no toilet
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facilities’. The Respondent also denies that he ‘was not given medical assistance or
that he was beaten by the Respondent’s agents’. In that regard, the Respondent
asserts that the Complainant’s allegations that he was deprived of the right to
respect of the dignity inherent in the human being are unsubstantiated.
Article 7
131.
The Respondent contends and avers that it upheld the Victim’s rights under
Article 7 (1) (b), (c), and (d). The Respondent also adds that according to the
Constitution, the Supreme Court is the highest appellate court in Uganda. An
appeal was referred to the Supreme Court arising from the decision and
consequential orders of the Constitutional Court in Constitutional Reference No.
36 of 2011. The Respondent notes that the appeal would be rendered nugatory if
the consequential orders had been enforced prior to the hearing of the appeal. The
Respondent asserts that this is sufficient reason for the highest court to intervene
in order for a final and binding decision to be arrived at by the superior court of
record and in so doing to effect the principle of finality of suits.
132.
The Respondent submits that it is not the Chief Justice of Uganda who played
a pivotal role in the formation and establishment of the International Crimes
Division of the High Court. It is rather the Hon. Justice James Ogoola P.J. (as he
then was) that established the ICD on 20 July 2008. Under Article 141(1)(a) of the
Constitution the management of the High Court and all its day-to-day business is
constitutionally designated to the administrative role of the Principal Judge of
Uganda and not the Chief Justice. Thus the Chief Justice of Uganda is the
administrative head of the Supreme Court of Uganda whereas the Deputy Chief
Justice under Article 136 1 (a) and (b) is head of the Court of Appeal/Constitutional
Court.
133.
The Respondent submits that it has always afforded the Victim the right to be
heard by impartial courts and within reasonable time. Ugandan Courts have in
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several decisions recognized that right. Thus, the Respondent denies that the
Supreme Court decision that stayed the execution of the consequential orders of
the Constitutional Court was partial. The Respondent notes that the lack of
quorum in the Supreme Court was brought on by the passing on of Honourable
Mr Justice Amos Twinomujuni JSC. in November 2013, however, the Supreme
Court of Uganda is now fully constituted, the parties argued their respective cases
on appeal in the Supreme Court in June 2014 and the court is yet to deliver its final
decision on the appeal.
The Commission’s Analysis on the Merits
134.
Having closely studied the submissions of the parties on the Merits of the case,
the Commission proceeds to analyse the arguments and evidence furnished by the
parties against the relevant provisions of the Charter and other applicable laws to
establish whether there has been a violation of the provisions of the Charter as
alleged in the submissions of the Complainant.
135.
As can be discerned from the summary of the submissions of the Respondent
State, the latter disputes the veracity of several of the assertions of the Complainant
presented as facts. It is, therefore, imperative that the Commission rules on such
disputed facts since many of these contested facts have a bearing, direct or indirect,
on the outcome of the case. However, the Commission will not delve into the
exercise of fact-checking for each and every disputed fact. That is neither desirable,
nor necessary. Instead, a more pragmatic approach is followed by making a
determination of facts only as and when the Commission finds it relevant and
necessary for the analysis of the merits of the case.
Ruling on Some Contested ‘Facts’ and Applicable Law
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136.
The Complainant alleges that in March 2009, the Victim, a former child soldier
and commander in the LRA, surrendered, was shot and severely wounded on the
battlefield in the DRC. And shortly thereafter, and before recovering from his
injuries, he was abducted from the hospital by Ugandan military intelligence, and
taken to a private residence of an officer of the Chieftaincy of Military Intelligence
also known as ‘safe house’.
137.
Although the fact of the Victim being a child when joining the LRA is contested
by the Respondent State, the Commission will not look into the dispute since it is
not relevant for any of the issues raised in the case under consideration.
138.
The Respondent State also denies the assertion by the Complainant that the
Victim surrendered and that he was shot afterwards. Instead, the Respondent
states that the Victim was shot and captured during combat in the Garamba Forest
in DRC.
139.
The background information in the ruling of the Constitutional Court of
Uganda dated 22 September 2011 also indicates that the Victim was captured, and
hence did not surrender. The affidavit by the Assistant Inspector of Police who was
investigating the case of the Victim also corroborates the assertions of the State that
the Victim was captured after being shot and wounded during a gun battle
between the UPDF and the LRA. The Complainant did not challenge such
assertion, nor has he adduced any record or proof showing that the Victim in fact
surrendered and was shot afterwards.
140.
The Complainant’s claim of abduction from hospital, after the Victim was
captured, by Ugandan military intelligence is also refuted by the Respondent State.
The Respondent avers that after his capture, the Victim was transferred to Uganda
and taken to the general military hospital, Bombo Hospital, in Kampala, for
medical treatment. After recovery, he was taken to the 1st Infantry Division
Headquarters in Kakiri, Wakiso District, for full recuperation as a prisoner of war
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(PoW). In support of its claim, the Respondent has attached an Affidavit by the
Assistant Inspector of Police. Besides the lack of any evidence to prove the
Complainant’s claim and the latter’s apparent failure to refute the Respondent’s
assertion, the Commission could not find any logical explanation as to why the
Victim would be abducted by the Respondent State when he is already in their
custody.
141.
In view of the above, the Commission is convinced that the Victim was shot
and wounded in active combat duty, not after surrendering, and that he was not
abducted by military intelligence as alleged by the Complainant.
142.
The finding that the Victim was wounded in the context of a conflict situation
while being a member of an armed rebel group triggers the issue of applicable law.
143.
It is not disputed that the case at hand relates to and arouse from a conflict
situation involving an armed rebel group, the LRA. It is also further established
that the Victim was captured in the battlefield in active combat. This gives rise to
the question of whether the conflict in question is of such a nature that is governed
by the rules of International Humanitarian Law (IHL). There are two types of
conflicts to which IHL rules apply. The first type of conflicts involves international
armed conflicts, conflicts between the armed forces of two states. This is not the
kind of conflict in the case at hand. The second type of conflicts relate to those
identified under IHL as constituting ‘armed conflicts that are not of an
international character’ or simply non-international armed conflicts. Given that in
the case at hand the conflict concerns the armed forces of Uganda and a rebel
group, the LRA, the Commission has to determine whether this constitutes a noninternational armed conflict to which rules of IHL pertaining to such type of armed
conflicts apply.
144.
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Common Article 3 of the Geneva Conventions of 1949 outlines the provisions that
regulate what it calls ‘armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties’. Armed conflict not of an international
character or Non-International Armed Conflict (NIAC) is defined in Additional
Protocol II of the 1949 Geneva Conventions as one ‘which takes place in the
territory of a Party to the Protocol between armed forces and dissident armed
forces or other organized armed groups’. It then stipulates that the dissident forces
must be ‘under responsible command, exercise such control over a part of its
territory as to enable them to carry out sustainable and concerted military
operations and to implement this Protocol’.33 According to this definition and as
further specified in the jurisprudence of both the International Criminal Tribunal
for Rwanda and International Criminal Tribunal for the former Yugoslavia, there
are four cumulative elements for determining the existence of NIAC. First, the
conflict has to be between armed forces of a state and dissident or other organized
armed group/s. Second, the conflict takes place in the territory of the state. Third,
the dissident or the armed opposition group has to be organized with command
and control structure exercising control over a part of the territory of the state.
Fourth, the conflict has to be a situation of regular and intense armed confrontation
and hence involving direct hostilities between the armed forces of a state and the
dissident or opposition armed group.
145.
With respect to the first element, it emerges from the facts that the conflict
involved the Ugandan armed forces and the LRA, a dissident group that has been
engaged in armed rebellion against the government of Uganda since 1986.
Accordingly, the conflict situation in this case meets this element. On the second
element, while the theatre of the conflict has been northern Uganda, it has been
noted that at the time of the capture of the victim the LRA was driven out of
The Commentary of the ICRC on Common Article 3 of the 1949 Geneva Conventions lays down
an elaborate requirement/criteria that an armed conflict should fulfil to be regarded as NIAC:
Available at https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/466097d7a301f8c4c12563c
d00424e2b
33
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Uganda’s territory. Notwithstanding that the conflict has thus spilled over to
neighbouring countries particularly DRC and Central African Republic, this on its
own does not deprive it of its Non-International character. As Knut Dormann has
rightly observed: ’[I]t is important to bear in mind that NIACs may take different
forms, ranging from classical civil war situations with armed violence essentially
occurring within the confines of one single territory between government armed
forces or other organized armed opposition groups, to NIACs spilling over to
neighbouring countries, and to armed conflict situations in which multinational
forces intervene on the side of a host government against organized armed
opposition groups.’34
146.
Therefore, the armed conflict between the troops of the Government of Uganda
and the LRA meets the second element of the definition of NIAC, despite its
transnational character.
147.
The third and fourth elements entail that the dissident or opposition armed
group, in this instance the LRA, is an organized force with command and control
and that it engages in protracted combat or direct hostilities with the armed forces
of the State. The LRA has possessed organization involving clear leadership and
command and control structures. The level of organization that enabled it to
prosecute a long armed rebellion in Northern Uganda qualifies the LRA as a
dissident armed force or other organized group under Protocol II of the Geneva
Conventions of 1949. The LRA has also been engaged in protracted armed combat
and hence in direct hostilities with the Ugandan armed force. On both level of
organization of the LRA and the nature of the armed confrontation, the situation
in the case at hand can thus be considered a NIAC to which the IHL rules relating
Knut Dormann, Detention in Non-International Armed Conflicts in Kenneth Watkin & Andrew
J. Norris (Eds), Non-International Armed Conflict in the Twenty-first Century, International Law
Studies 88, (2012), p. 347. See also International Committee of the Red Cross (ICRC), International
Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Report of the 31 st
International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 28 November – 1
December 2011, p. 9.
34
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to NIAC apply. The ICTR, for example, employed this approach, noting that in
making such a determination, ‘it is necessary to evaluate both the 'intensity' and
'organization of the parties' to the conflict.’35
148.
Consequently, as a combatant of the LRA who was captured in the battlefield,
and rendered hors de combat, the determination of whether violations were
perpetrated against the victim has to be based not only on the provisions of the
African Charter but also the rules of IHL that govern the detention and treatment
in detention of detainees in NIACs and, in this case, the Victim, by reference to
Articles 60 and 61 of the African Charter on Human and Peoples’ Rights. As the
Commission held in various communications including Commission Nationale des
Droits de l’Homme et des Libertes v Chad36 and Amnesty International, Comite Loosli
Bachelard,Lawyers Committee for Human Rights and Association of Members of
Episcopal Conference of East Africa v Sudan37 the application of the provisions of the
Charter persists even in times of armed conflict. It is also well established in the
jurisprudence of the International Court of Justice that in cases of armed conflicts
human rights law and IHL rules apply complementarily. In its advisory opinions
on the Legality of the Threat or Use of Nuclear Weapon and the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
the ICJ opined that ‘the protection offered by human rights conventions does not
cease in case of armed conflict, save through the effect of provisions for
derogation…’38
149.
The foregoing shows that we have a case of concurrent application of both the
provisions of the African Charter and the rules of IHL applicable to cases of NIACs.
35
ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4·T, judgment, para 620 (Sept. 2, 1998).
36
Communication 74/92, Commission Nationale des Droits de l’Homme et des Libertes v Chad, Ninth Annual Activity
Report (1995–1996).
37
Communications 48/90, 50/91, 52/91, 89/93, Amnesty International, Comite Loosli Bachelard, Lawyers Committee for
Human Rights and Association of Members of Episcopal Conference of East Africa v Sudan, Thirteenth Annual Activity
Report (1999–2000).
International Court of Justice (ICJ), Advisory Opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, (2004), para. 106.
38
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In such instances of concurrent application of human rights and IHL rules, there
are various approaches.
150.
First, although both the provisions of the African Charter and IHL rules relating
to NIACs apply to the present case, the Commission will only make a finding of
violations of the African Charter. The African Commission has already taken a
position that the role of IHL rules in the relationship between IHL and the
provisions of the African Charter is to serve as standard by reference to which the
rights of the Charter are interpreted.39 In making reference to IHL rules on the basis
of Articles 60 and 61 of the African Charter, the African Commission accordingly
uses, instead of the Charter standards that apply in normal conditions and peace
times, the standards of the IHL rules for making a determination of the existence
of violations of the provisions of the African Charter in such situations of NIACs.
151.
Accordingly, for the instance case the African Commission applies the standard
of treatment specified in Common Article 3, which is generally considered to have
achieved a status of customary international law, specifically its reference among
others to persons in detention, and Articles 4 and 6 of Additional Protocol II
specifically relating to persons deprived of liberty.
152.
Second, in the event of tension arising from the concurrent application of IHL
and the human and peoples’ rights provisions of the African Charter in situations
of armed conflict, the Latin maxim of lex specialis derogat legi generali applies. The
implication of the lexi specialis maxim is that when two provisions apply to the
same situation and there is divergence, the provision that gives the most detailed
guidance should be given priority over the more general one. In relation to the
conduct of parties in NIAC including the treatment of individuals captured in
situations of NIAC, IHL is considered the lex specialis.
39
See General Comment No. 3 of the African Commission on Human and Peoples’ Rights on the Right to Life
paras. 13 and 32.
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153.
Third, on the concurrent application of human rights and IHL in armed
conflicts it should be noted that the application of IHL is generally confined to the
conduct of hostilities involving the armed fighting between the warring parties.
Acts that take place outside of or in context unrelated to the conduct of hostilities
are to be regulated by reference to human rights law. It should further be noted
that the privileges that IHL attributes to status of combatant does not apply upon
capture of non-state combatants. Accordingly, the status of prisoner of war does
not apply in situations of NIACs and as such combatants of dissident armed
groups upon their capture may be prosecuted for all hostile acts on the basis of
domestic law in force at the time of the capture of the non-state combatant.
154.
The different rules listed in Common Article 3 of the Geneva Conventions and
Articles 4, 5 and 6 of Protocol II to the Geneva Conventions on detention are the
ones the Commission relies on, to the extent they are relevant, in analysing the
specific rights allegedly violated in the present case. These rules in these
instruments can be divided into four broad categories: rules on the treatment of
detainees, rules on material conditions of detention, fair trial rights, and
procedural safeguards in internment.40 In the present case, these rules are in
particular to be applied with respect to the treatment of the Victim at the time of
his capture and from the time of his capture to the time of his transfer to the
custody of police for investigation and prosecution. Accordingly, while IHL rules
that apply to situations of NIACs are used to make a determination on violations
of Charter rights until the point of transfer of the non-state combatant to police
custody, from that point onwards the Commission applies the provisions of the
African Charter directly. The Commission will thus examine allegations of
violations of Articles 5, 6, 7 and 16 of the African Charter by reference to IHL rules
relating to NIACs and will analyse those of Article 3 and parts of 7 on their own.
155.
The Commission will accordingly analyse the provisions of the Charter
allegedly violated against the background of the foregoing framework of analysis
40
ICRC, n 34 above, pp. 15-16. See also Dormann, n 34 above, pp. 349-350.
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Communication 431/12 – Thomas Kwoyelo v. Uganda
of the applicable law. The analysis follows the order of the appearance of the
articles of the African Charter that have been alleged to have been violated in the
present communication.
Alleged Violation of Article 3
156.
Article 3 of the Charter relates to equality before the law and equal protection
of the law and reads as follows:
1. Every individual shall be equal before the law
2. Every individual shall be entitled to equal protection of the law
157.
In respect of Article 3 of the Charter, the Complainant contends that the refusal
of the Respondent State to grant amnesty to the Victim, while the former has
granted amnesty to over 24,066 rebels before and 274 rebels after the Victim’s
application for amnesty was rejected, without any objective or reasonable
explanation, is tantamount to selective treatment and hence a violation of Article
3 of the African Charter.
158.
As the Commission has noted in the case of Purohit and Moore v. The Gambia,
Article 3 together with Article 2 of the Charter basically form the equal protection
and anti-discrimination provisions of the Charter. Article 2 lays down a principle
that is essential to the spirit of the Charter and is therefore necessary in eradicating
discrimination in all its guises, while Article 3 guarantees fair and just treatment
of individuals within a legal system of a given country.41
159.
Equality before the law as guaranteed under Article 3(1) relates to the right by
all to equal treatment under similar conditions. It entails that individuals should
expect to be treated fairly and justly within the legal system and be assured of
equal treatment before the law and equal enjoyment of the rights available to all
41
ACHPR, Communication 241/01 – Purohit and Moore v The Gambia (2003), para. 49.
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other citizens. Its meaning is the right to have the same procedures and principles
applied under the same conditions.42
160.
Equal protection of the law under Article 3(2) on the other hand, means that no
person or class of persons shall be denied the same protection of the laws which is
enjoyed by other persons or class of persons in like circumstances in their lives,
liberty, property, and in their pursuit of happiness. It simply means that similarly
situated persons must receive similar treatment under the law.43
161.
In the instant case, what the Complainant is alleging is not that the law - the
Amnesty Act - does not provide equal protection to the Victim. Rather what is
alleged is that the Amnesty Act has been applied in a discriminatory manner to the
Victim resulting in a violation of his right. The issue, therefore, relates to a different
application of the law to similar circumstances, which falls within the ambit of
Article 3 (2) of the Charter. Equality before the law, as expounded above, does not
only refer to the content of legislation, but also to its enforcement. It means that
judges and administration officials may not act arbitrarily in enforcing laws.
162.
Nevertheless, not all discriminations are tantamount to a violation of the right
to equal treatment. In some instances, discrimination, in law or practice, can be
justified. International human rights law recognizes what are called positive or
justified discriminations. It is, however, noteworthy that as the right to equality
and non-discrimination form the bedrock of human rights law, there are stringent
requirements that a discriminatory act or differential treatment should fulfil in
order to be justified. As the Commission has opined in the case of Kenneth Good
v. Botswana, and later reaffirmed in Dabalorivhuwa Patriotic Front v. the Republic
of South Africa, a differential treatment is considered a violation of the principles
ACHPR, Communication 294/06 – Zimbabwe Lawyers for Human Rights and Institute for
Human Rights and Development in Africa v Zimbabwe (2009), para. 96. See also Communication
323/06 – Egyptian Initiative for Personal Rights & INTERIGHTS V. Egypt, (2011) para. 173.
43
ACHPR, Communication 294/06 – Zimbabwe Lawyers for Human Rights and Institute for
Human Rights and Development in Africa v Zimbabwe (2009), para. 99.
42
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of non-discrimination and equal treatment if: ‘a) equal cases are treated in a
different manner; b) a difference in treatment does not have an objective and
reasonable justification; and c) if there is no proportionality between the aim
sought and the means employed’.44
163.
Differential treatment, therefore, entails the existence of a ‘comparator’ or other
similar situations to compare with.
164.
If the existence of a difference in treatment is proven then the next step is to
establish whether the treatment was justified or whether there is a reasonable
explanation and/or justification.
165.
In the instant case, the bone of contention is the denial of amnesty to the Victim
by the Respondent State. According to the Complainant, even though the Victim
was declared eligible for amnesty by the Amnesty Commission in accordance with
the Amnesty Act of 2000, which was subsequently upheld by the Constitutional
Court and the Court of Appeal and the High Court of Uganda, the DPP impeded
the issuance of the Amnesty Certificate to the Victim by instituting criminal
charges.
166.
The Complainant argues that the granting of over 24,000 amnesty applications
before and 274 more after the Victim’s application was rejected including to
persons who were holding higher command positions shows that he was
selectively treated without any objective or reasonable explanation.
167.
The Respondent State on the other hand defends its actions by claiming that
the Complainant has failed to prove that the circumstances of the granting of
amnesty to members of various rebel groups who renounced rebellion was similar
ACHPR, Communication 313/05 – Kenneth Good v. Botswana, (2010) para. 219. See also
ACHPR, Communication 335/06 - Dabalorivhuwa Patriotic Front v the Republic of South Africa,
(2013), para. 113.
44
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to that of the Victim. According to the Respondent State, the Complainant has not
furnished any evidence that those who had been granted amnesty had been
criminally charged for gross violations of human rights or war crimes or other
international crimes at the time of applying for amnesty, whereas, there is enough
evidence that the Victim had participated or was responsible for grave breaches of
the Geneva Conventions, for which he is being prosecuted.
168.
What the Respondent State is basically arguing is that the case of the Victim
was different from all other applicants who were granted amnesty because he was
charged with serious violations of human rights and the others were not. And that
is the reason why the DPP blocked his application for amnesty.
169.
In this regard, the Complainant opines that even high ranking commanders
such as Brigadiers Sam Kolo and Kenneth Banya, who have supposedly committed
more heinous crimes, have been granted amnesty as no charges were brought
against them.
170.
In response, the Respondent State contends that the circumstances of Brigadiers
Sam Kolo and Kenneth Banya arrested in 2005 and 2004 respectively were different
from those prevailing at the time of the Victim’s arrest in 2009 for the following
reasons:
i.
At the time of the Victim’s arrest the Government of Uganda and the LRA
had signed the Juba Agreement on Accountability and Reconciliation and
the Annexure thereto in June 2007 and February 2008 respectively wherein
they agreed that persons alleged to have committed the most serious crimes
or human rights violations would be prosecuted before formal courts;
ii.
At the time of the Victim’s arrest there were many people confident and
willing to testify against the LRA since in 2009 the latter had been driven
out of Uganda into Eastern DRC, and relative peace had returned to
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Northern Uganda with many people previously in IDP camps having
returned to their homes after many years. And it was not possible to use
such witness evidence to prosecute those that have already been granted
amnesty in the past owing to lack of witness evidence; and
iii.
In 2010, Uganda enacted the International Criminal Court Act whose
purpose was, among others, to give the 2002 Rome Statute force of law, to
implement Uganda’s obligations under the Rome Statute, to make further
provisions in Uganda’s law for the punishment of international crimes and
to enable Ugandan courts to try, convict and sentence persons who commit
such crimes.
171.
The Respondent State further argues that under Article 120 of the Constitution,
the DPP is mandated to control investigations and prosecutions, and accordingly
advised the Amnesty Commission that the Victim was charged with grave
breaches of the Geneva Conventions of 1949 for which amnesty cannot be granted.
172.
It can, therefore, be deduced that the rejection of the amnesty application of the
Victim is a fact and that until the time when the Complaint was filed before the
Commission, he was the only person whose application was rejected. It is also
confirmed that the Amnesty Commission had issued amnesty certificates to more
than 24,000 applicants before him and to 274 after him including to higher ranking
members of the LRA.
173.
Therefore, there is a prima facie case for difference in treatment. However, to
find a violation, it has to be shown that the way the relevant provisions of the
Amnesty Act have been interpreted and applied in the case of the Victim was
materially different from that of other similar cases and that there was no
reasonable justification for it. Particularly, the Commission will assess if being
charged with serious violations of human rights disqualifies an applicant from
being granted amnesty pursuant to the Amnesty Act of 2000.
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174.
In order to determine whether the Victim was treated differently from other
amnesty applicants without any reasonable objective, it is imperative to assess the
relevant provisions of the law, the Amnesty Act in this case, and compare their
interpretation and application in the case of the Victim with that of the other
reporters.
175.
Relevant sections of Part two of the Amnesty Act of 2000 which relates to the
granting of amnesty provide that:
3.1. An Amnesty is declared in respect of any Ugandan who has at any time since the
26th day of January, 1986 engaged in or is engaging in war or armed rebellion against
the government of the Republic of Uganda.
3.2. A person referred to under subsection (1) shall not be prosecuted or subjected to
any form of punishment for the participation in the war or rebellion for any crime
committed in the course of the war or armed rebellion.
176.
The above quoted provisions give general amnesty to rebels whereby no
offences are excluded and all forms of insurgency are covered. This
assertion/interpretation is also supported by a 2012 paper on the Amnesty Act
prepared by the Justice Law and Order Sector for the consideration of the
Transitional Justice Working Group, which was annexed by the Respondent State
as evidence. The paper expounds that ‘according to the Act, amnesty is granted to
anyone who ‘renounces rebellion’, and as such, treats all reporters alike,
overlooking the category of crimes allegedly committed (including war crimes,
crimes against humanity or gross violations) and failing to require any accounting
of the facts/truth in exchange for amnesty. In terms of the pursuit of accountability
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for war crimes, crimes against humanity and gross human rights violations, the
Amnesty Act is a de jure and de facto blank amnesty’.45
177.
Even the 2006 amendment to the Amnesty Act that caters for persons who may
be found to be ineligible for amnesty, does not specifically indicate that persons
suspected of crimes against humanity, war crimes or gross violations of human
rights can be found ineligible for amnesty.46 In effect, this means amnesty can be
granted to any and all those who renounce rebellion regardless of the nature of
crimes an individual has committed.
178.
Amnesty was granted even to those who, like the Victim, had been captured
on the battlefield and includes Brigadier Kenneth Banya, who the Respondent
State itself concedes was captured on the battlefield in 2004.
179.
The Commission is convinced that it is in view of the above understanding that
the Amnesty Commission never declared any reporter ineligible for amnesty,47
and accordingly issued more than 24,000 amnesty certificates.
180.
In conformity with its previous practice and interpretation of the Act, the
Amnesty Commission had also accepted the Victim’s application for amnesty. It
was the DPP who decided to block the issuing of amnesty certificate by filing
charges against the Victim.
181.
In view of the above, it is clear that the Amnesty Act was applied differently to
the Victim compared to the case of previous and subsequent applicants for
amnesty. The Victim had satisfied all requirements in the Amnesty Act to be
granted amnesty: he renounced rebellion and applied for amnesty. The fact that he
was charged with grave violations of human rights is not a ground provided in the
Justice Law and Order Sector (Uganda), The Amnesty Law (2000) Issues Paper: Review by the
Transitional Justice Working Group (2012), p. 6.
46
Ibid.
47
Id., pp. 6 & 13.
45
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Amnesty Act for denial of amnesty. It was in due recognition of this fact that the
JLOs recommended to the Government that the Amnesty Act should be amended
so that, among others, ‘high level perpetrators and those responsible for the
commission of international crimes, including sexual and gender based violence
crimes, are excluded from the award of amnesty’.
182.
Now, what remains to be determined is whether the justifications preferred by
the Respondent State as justification or explanation for the different treatment is
valid.
183.
In assessing validity, the prime source to look for is legislation or laws. Is there
a law that sanctions the differential treatment?
184.
The Respondent State is of the view that the difference in treatment was due to
and justified by, inter alia, the Juba Agreement on Accountability and
Reconciliation and the Annexure thereto signed in 2007 and 2008 respectively
between the Government of Uganda and the LRA. The Respondent State avers that
in the said Juba Agreement, the parties have agreed to try persons alleged to have
committed the most serious crimes before formal courts. According to the State,
the Juba Agreement was not applicable to the two Brigadiers because they were
granted amnesty before the Juba Agreement, while the Victim’s application for
amnesty was tendered after the agreement was signed.
185.
The Juba Agreement was indeed signed before the Victim was captured in
March 2009. However, more than 5 years after the signing of the Agreement, the
Amnesty Act was not amended to reflect the developments to enable the DPP
charge those that have been accused of committing serious violations of human
rights. In the absence of such amendments, the government cannot justify the
rejection of the amnesty application since under the Act the Victim is still eligible
for amnesty. The eligibility of the Victim for amnesty despite the signing of the
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Juba Agreement was affirmed by the Amnesty Commission as well as the ICD, the
Constitutional Court and the Court of Appeal of Uganda.
186.
Moreover, the charges that the DPP brought against the Victim relating to
violations of several provisions of the Geneva Conventions Act of 1964 arose out
of alleged activities during the rebellion for which, as explained above, he was
qualified for amnesty under the Amnesty Act of 2000. Using such charges to block
the amnesty application is a significant deviation from the provisions of the
Amnesty Act as well as previous practices in the granting of amnesty.
187.
Furthermore, the Respondent State has not shown that some other people have
also been tried and hence denied amnesty as a result of the Juba Agreement. In
fact, the Respondent continued granting amnesty to other applicants. In the
absence of proof to the contrary, the Commission finds that the signing of the Juba
Agreement without effecting corresponding and corollary amendments to the
Amnesty Act is not sufficient and convincing legal ground to warrant differential
treatment. It rather opens the door for varying and arbitrary interpretation and
application of the Amnesty Act as it has been evidenced in the position taken by
the Supreme Court and the lower courts of Uganda in Constitutional Reference
No. 36 of 2011.
188.
The other legal ground that the Respondent State puts forward as a justification
for the differential treatment or to show that it is not in fact a differential treatment
is the enactment in 2010 of the International Criminal Court Act whose purpose
was, among others, to give the 2002 Rome Statute force of law, to implement
Uganda’s obligations under the Rome Statute, to make further provisions in
Uganda’s law for the punishment of international crimes and to enable Ugandan
courts to try, convict and sentence persons who commit such crimes. Thus, the
argument is that since the ICC Act was enacted in 2010, Uganda ‘assumed’
additional responsibility to try those alleged to have committed serious violations
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of human rights, an obligation that was not present when the two Brigadiers were
granted amnesty.
189.
From the submissions of both parties, it is clear that the Victim renounced
rebellion and applied for amnesty in January 2010, and pursuant to the Amnesty
Act that suffices to grant amnesty to the Victim. Accordingly, on 19 March 2010
the Amnesty Commission forwarded the application to the DPP for his
consideration, noting that the Victim qualified for amnesty under the provisions
of the Amnesty Act. It is also on record that the DPP did not respond to the said
application by the Amnesty Commission up until November 2011. The DPP rather
proceeded to prefer criminal charges against the Victim on 6 September 2010
before the Chief Magistrate’s Court at Buganda Road for various offenses under
the 1964 Geneva Conventions Act.
190.
The ICC Act was enacted on 25 June 2010, that is, six (6) months after the Victim
applied for amnesty, and three (3) months after the Amnesty Commission
forwarded the Victim’s application stating its view that the Victim is eligible for
amnesty under the Amnesty Act of 2000. Therefore, there is no way in which the
State could base its argument on provisions of an Act that was not in existence at
the time when the alleged differential treatment occurred. That would be a
retroactive application of the law, which is a flagrant breach of the principle of
legality.
191.
Furthermore, the enactment of the Act cannot actually justify the differential
treatment, because under international law, Uganda committed itself to investigate
and try those responsible for serious violations of human rights from the moment
it ratified the Rome Statute, which was in 2002. Its duty to investigate and try those
responsible should not be assumed to have started from the time it enacted a law
domesticating the Rome Statute no matter what its domestic law may stipulate
regarding domestication and enforcement of international treaties. It is a wellestablished principle of international law that a state cannot invoke its domestic
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laws or procedures to vindicate itself from its treaty obligations. 48 The
domestication of the Rome Statute, while a commendable measure, cannot justify
the differential treatment. The domestication of the Statute is a measure that
facilitates domestic application and enforcement of the provisions of the Rome
Statute, not a measure marking the commencement of the obligations of a state
under the Statute.
192.
Accordingly, since Uganda assumed such obligations under the Rome Statute
since 2002, that is, the year it ratified the Statute, the DPP should have also refused
the amnesty applications of the two Brigadiers in order to try them for serious
violations of human rights. But the DPP did not try the two Brigadiers, therefore,
the enactment of the Rome Statute Act is not a convincing reason to justify the
differential treatment.
193.
The third ground upon which the Respondent State justifies or explains its
differential treatment is that at the time of the Victim’s arrest in 2009 many people
were ready and willing to testify against him as a result of the establishment of
relative peace in Northern Uganda and the return of those people that were
sheltered in IDP camps. And the Respondent argues that it was not possible to use
such witness evidence to prosecute those who had already been granted amnesty
in the past owing to lack of witness evidence.
194.
However, the Respondent has not proffered any proof showing that
investigations were indeed conducted against some amnesty applicants suspected
of committing serious human rights violations but were closed for lack of witness
evidence. No report of police investigation or report by the DPP were adduced to
such effect. In the absence of such proof, the Commission is left with no option but
to find that the availability or otherwise of witnesses is not persuasive enough to
justify differential treatment.
48
Vienna Convention on the Law of Treaties of 1969, Article 27.
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195.
In light of the above, the Commission is of the view that by interpreting and
applying the provisions of the Amnesty Act differently without any reasonable
justification or explanation, the Respondent State violated the right to equal
protection of the law afforded to the Victim as provided under Article 3 (2) of the
Charter.
Alleged Violation of Article 4
196.
Article 4 of the African Charter which guarantees the right to life provides that
‘[h]uman beings are inviolable. Every human being shall be entitled to respect for
his life and the integrity of his person. No one may be arbitrarily deprived of this
right.’
197.
In its submissions, the Complainant also alleges a violation of the right to life
as guaranteed under Article 4 of the Charter. However, the Complainant does not
make specific arguments for it or show how the actions or inactions of the
Respondent violated the right to life of the Victim.
198.
The Commission also observes that from the submissions of the parties and in
light of its rulings below with regard to the right to health and freedom from
torture, there is no basis to find the Respondent in violation of Article 4 of the
Charter.
Alleged Violation of Article 5
199.
Article 5 of the Charter reads:
Every individual shall have the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status. All forms of exploitation and
degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or
degrading punishment and treatment shall be prohibited.
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200.
Freedom from torture is one of the cardinal rules in international law that
cannot be derogated from at any time and under any conditions and circumstances
including in times of war and emergency. In line with this understanding,
Common Article 3 of the Geneva Conventions of 1949 and Article 4(1) and 2(a)(e),
(e) & (f) of the Additional Protocol II guarantee absolute freedom from torture,
inhuman, and degrading treatment.
201.
These rules under Common Article 3 and Additional Protocol II of the Geneva
Conventions of 1949 make up what are known as ‘rules on the treatment of
detainees’. These are norms that aim to protect the physical and mental integrity
and well-being of persons deprived of liberty, whatever the reasons may be. As
stipulated in Common Article 3 of the Geneva Conventions of 1949 and Articles 4
of Protocol II to the Geneva Conventions, the protection these IHL rules provide
include the prohibition of murder, torture, cruel, inhuman or degrading treatment,
mutilation, medical or scientific experiments, as well as other forms of violence to
life and health. Clearly, there is substantive overlap in the acts prohibited in the
IHL rules under Common Article 3 of the Geneva Conventions and Article 4 of
Protocol II to the Geneva Conventions on the one hand and Article 5 of the African
Charter. All of the acts listed are prohibited under both IHL and human rights
law.49 These prohibitions apply at any time and in any place whatsoever.50
Irrespective of the circumstances, there is an absolute prohibition of torture,
inhumane and degrading treatment.
ICRC, n 34 above, pp. 15-16.
The absolute character of these obligations is the same as that of a large number of rules in the
Protocols and in international humanitarian law in general. In considering the nature of absolute
obligations, the International Law Commission stated that: neither juridically, nor from the practical
point of view, is the obligation of any party dependent on a corresponding performance by the others.
The obligation has an absolute rather than a reciprocal character." It also means that no derogation is
allowed, in line with the rule on derogations in the ICCPR, in particular with regard to arbitrary
deprivation of life (Art. 6), torture and cruel, inhuman or degrading treatment or punishment (Art. 7)
and slavery (Art. 8). International Committee of the Red Cross, Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II) 8 June 1977, Commentary of 1987 – Fundamental Guarantees, available at
https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=5CBB47A
6753A2B77C12563CD0043A10B
49
50
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202.
A state has the duty to ensure that detainees are not subjected to acts of torture
and other cruel, inhuman and degrading treatment while they are in detention. And
this duty is also equally present in times of war as stipulated above. A State Party to
the African Charter also has the duty to allow and facilitate visitation by family
members and acquaintances, and legal counsel of the detainee’s choice.51 The
allegations of the Complainant will accordingly be appraised in light of this fact in
particular taking into account the fact that the standard that applies in IHL and in
human rights with respect to torture are not different.
203.
The Complainant alleges that while in detention, the Victim was denied
medicine and proper medical care and visitation by his family and legal counsel.
The Complainant also alleges that during his detention in the private residence of
an official of the Chieftaincy of Military Intelligence for three months, he was
forced to sleep on the floor, without any bedding and was afforded no toilet
facilities. According to the Complainant, the Victim was deprived of sleep during
interrogations and allowed only about three hours a day for exercise and given
only one meal a day. These acts meted out against the Victim by agents of the
Respondent State, the Complainant argues, amount to a violation of Article 5 of
the Charter.
204.
Indeed, if the Complainant were subject to these acts after his capture and
before his delivery to police custody, these acts would be in breach of both
Common Article 3 of the Geneva Conventions and Article 4 of Protocol II to the
Geneva Convention. If such breach of these IHL rules were to happen, it would
thus establish violation of Article 5 of the Charter particularly with respect to
torture, cruel, inhumane and degrading treatment. Indeed, if proved, the acts
(deprivation of medical care or of sleep or absence of toilet) to which the Victim
was allegedly subjected would amount at the very least to ill treatment if not to
ACHPR, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in
Africa (Luanda Guidelines), (2014), Guidelines 4.
51
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torture. In what follows, the Commission examines whether there is any indication
to show that these acts were indeed committed.
205.
In response to the alleged acts of torture, the Respondent State denies that the
Victim was ever subjected to torture, inhuman and degrading treatment.
According to the Respondent State the allegations of torture are untrue and
unsubstantiated, and hence should be dismissed.
206.
The Respondent avers that the Victim was treated humanely and in accordance
with the law while in recuperative custody, and that he was not tortured as alleged.
He was also supposedly allowed to have visitors and accordingly his mother paid
frequent visits. He was also informed of his right to get a legal counsel, but did not
request to do so.
207.
The Respondent denies that the Victim was detained in a private residence or
subjected to inhumane treatment and torture. The Respondent prefers that he was
taken to Bombo Hospital in Kampala for treatment and later to the First Infantry
Division Headquarters in Kikiri, Wakiso District as a ‘PoW’.
208.
While it is not sufficient for the Respondent to merely refute allegations by
denying them, the Commission also notes that the onus is on the Complainant to
provide relevant supporting materials to corroborate his allegations. Allegation is
not the same as proof. The Complainant has in this regard failed to give the
required specific details of the alleged violations or to substantiate any of the
allegations of torture and inhumane treatment made in the Communication or
even to refute the arguments of the Respondent State. There is no adequate
material either to show the reference made to his current state of physical pain is a
result of the alleged acts of torture or the injury that the Victim suffered during the
fighting at which he was captured. The affidavit of the Victim that the
Complainant refers to in the submission, which supposedly indicates that he was
ill-treated is not in the dossier of evidence submitted to the Commission. The other
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Affidavit of the Victim dated 11 October 2011, which is included in the dossier does
not support such allegations.
209.
The Complainant has not, therefore, provided the kind of details or information
required for establishing the occurrence of the alleged acts. In the absence of such
details or provision of any other evidence supporting the Complaints, the
occurrence of the alleged acts, which are proscribed in both Common Article 3 of
the Geneva Convention and Article 4 of Protocol II to the Geneva Conventions,
cannot be established reasonably. The Respondent, on the other hand, refutes
every single allegation and assertion and supports them, although not in all cases,
through evidence.
210.
The Commission recognizes that the Respondent has the duty to investigate
and try with due diligence those alleged to have committed torture and other cruel,
inhumane or degrading treatment or punishment. However, nowhere in its
submission has the Complainant indicated that the alleged act of torture and illtreatment by agents of the State were in any way or form brought to the attention
of the concerned State authorities.
211.
Even if it were to be argued that the stringent requirements of human rights
standards of notifying the relevant authorities of the alleged acts should not apply
in relation to Common Article 3 of the Geneva Conventions and Article 4 of
Protocol II to the Geneva Conventions, provision of relevant information that
establish that the relevant authorities should have learned or known of the
occurrence of the acts is necessary.
212.
The Commission acknowledges the challenges and risks involved for victims
of torture and ill-treatment in reporting acts of torture and ill-treatment while in
detention or internment. Nevertheless, in the case at hand, the Victim who was
ably, it seems, represented by lawyers did not provide the information necessary
to enable the Commission to make a finding that the relevant State authorities were
informed or should have noticed or known of the acts. There is also no indication
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that this was raised at any point in the various proceedings in the national courts.
In the absence of such information, the occurrence of the acts and hence violation
of Common Article 3 of the Geneva Conventions and Article 4 of Protocol II to the
Geneva Conventions could not reasonably be established.
213.
In light of the above, the Commission does not have sufficient information to
find that there has been a violation of Article 5 of the Charter in respect to any of
the prohibited acts under this article including forms of exploitation and
degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or
degrading punishment and treatment.
214.
It is noteworthy to underscore that as a quasi-judicial body established to
complement national jurisdictions in the promotion and protection of human and
peoples’ rights, the Commission exercises its contentious jurisdiction over matters
that were addressed by or at least brought to the attention of concerned and
competent national juridical organs. Or it has to be proven that such national
remedies are not available, ineffective or insufficient. In the absence of either of
these two scenarios, assumption of jurisdiction by the Commission would be
tantamount to arrogating to itself the role of a first instance court, which is neither
envisaged by the Charter nor practical or necessary or appropriate.
Alleged Violations of Article 6 and 7
215.
Articles 6 of the Charter provides that:
Every individual shall have the right to liberty and to the security of his person. No
one may be deprived of his freedom except for reasons and conditions previously laid
down by law. In particular, no one may be arbitrarily arrested or detained.
216.
And Article 7 reads:
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1. Every individual shall have the right to have his cause heard. This
comprises:
a. The right to an appeal to competent national organs against acts
violating his fundamental rights as recognized and guaranteed
by conventions, laws, regulations and customs in force;
b. The right to be presumed innocent until proved guilty by a
competent court or tribunal;
c. The right to defence, including the right to be defended by
counsel of his choice;
d. The right to be tried within a reasonable time by an impartial
court or tribunal.
2. No one may be condemned for an act or omission which did not constitute
a legally punishable offence at the time it was committed. No penalty may
be inflicted for an offence for which no provision was made at the time it
was committed. Punishment is personal and can be imposed only on the
offender.
217.
As established above, the Victim was caught while he was on active combat
mission. Thus, the issue of arbitrary arrest does not arise, confining the
consideration hereunder to the existence or otherwise of arbitrary detention and
mistreatment from the time of capture until the time of transfer to police custody.
In assessing the legality of the conditions and manner of his detention during this
period the applicable provisions are Articles 6 and 7 of the Charter and Common
Article 3 and Article 6 of Additional Protocol II to the 1949 Geneva Conventions.
218.
Detention or deprivation of liberty is an inevitable and lawful incidence of
armed conflict, including NIAC.52 The applicable rules of IHL prescribe certain
standards of treatment that should apply upon the capture and during the
detention those captured in the course of hostilities. Common Article 3 of the
Geneva Conventions of 1949 stipulates that ‘[p]ersons taking no active part in the
hostilities, including members of armed forces who have laid down their arms and those
52
ICRC, n 34 above, p.15.
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placed 'hors de combat‘ … shall in all circumstances be treated humanely,’ including
being cared for in case of the wounded and the sick.’ Common Article 3 thus proscribes
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture, b) outrages upon personal dignity, in particular humiliating and degrading
treatment and c) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all the judicial
guarantees. Protocol II to the Geneva Convention reinforces these guarantees by
including to the list of prohibited acts threats to commit the acts in Common Article
3.
219.
In relation to the right to liberty, the Complainant alleges that after the Victim
was captured in March 2009, he was detained for three months without being
allowed to have a legal counsel and without being produced before a court of law,
which the Complainant argued constituted arbitrary detention and violation of
due process of the law.
220.
As a combatant rendered hors de combat, the expectation under both Common
Article 3 of the Geneva Conventions and Article 4 of Protocol II to the Geneva
Conventions is that, as a combatant wounded and captured in combat, the Victim
was provided with the necessary medical attention and cared for. As established
below in the analysis on Article 16 on the right to health, the Victim was kept in
Hospital until his transfer to the First Infantry Division Headquarters in Kikiri,
Wakiso District. During this period, the issue of arbitrary detention would
therefore have no place. The Victim’s arbitrary detention without charges and
being taken to court would be an issue from the time of the Victim’s transfer to
First Infantry Division Headquarters in Kikiri. Even here, given that the
circumstances of the capture and detention of the Victim was in armed conflict,
what is required is to bring criminal charges and produce the detainee before a
court in reasonable period of time.
221.
Since the Victim was charged with various offenses in June 2009, the time
lapsed from the time of his discharge from hospital after his capture in March 2009
could not be deemed unreasonable. The Commission could not thus find that there
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was violation of prohibition of arbitrary detention or due process of law for the
time between March and June 2009.
222.
In June 2009, the Victim was charged with various offences under Uganda’s
penal code, and was handed over by the UPDF to the Ugandan Police for
prosecution. He was accordingly transferred to Gulu Prison (Northern Uganda)
then to Luzia Upper Prison (Central Uganda).
223.
The Commission is of the view that from the moment criminal charges were
pressed against him and he was informed of the same, that is June 2009, the Victim
has the right to exercise all his fair trial related rights under the African Charter.
224.
As pointed out earlier, the detention and subsequent treatment of the Victim
by the Ugandan Police after criminal charges were instituted against him will be
assessed in light of the provisions of the African Charter with no recourse to the
standards under IHL.
225.
In this regard, the Complainant contends that nearly a year passed after the
Victim’s arrest in March 2009 before he was allowed access to legal counsel or next
of kin. The Complainant does not give the exact date or month when the Victim
was allowed to have access to legal counsel. The Complainant fleetingly states that
he was allowed access only almost a year after he was captured. This means, the
Commission assumes, sometime in early 2010 since he was captured in March
2009.
226.
As established above, formal criminal charges were pressed against Mr.
Kwoyelo in June 2009, and hence that is the cut-off point where he can start
claiming and the state is obliged to respect and protect all his fair trial related
rights.
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227.
The Respondent State denies the allegations and argues that after the Victim
was transferred to police custody, he was informed of his right to receive visitors
and engage legal counsel, but did not request to do so. Furthermore, the
Respondent claims that even after the two criminal cases brought against the
Victim were cause-listed for court appearance in June 2009, he was offered to be
availed defense counsel by the State, but he declined.
228.
The Complainant neither counters the submissions of the Respondent, nor does
he provide evidence to substantiate the allegations or to show how he has been
disadvantaged or prejudiced by such denial of right by the Respondent. Producing
a document that indicates the date when the legal counsel started representing the
Victim would have been easy and sufficient since it is the same Complainant before
the Commission that represented the Victim before domestic courts.
229.
Thus, the Commission is of the view that the Complainant has failed to
convince the Commission that his right to legal counsel was denied by the
Respondent.
230.
Regarding the right to visit by family members, as established above, while the
Victim claims that he was denied visitation right, the Respondent counters it by
indicating that he was not denied this right and that in fact his mother paid him
frequent visits. The Complainant did not adequately substantiate his claim or
refute the claim by the State despite being given a chance to counter the
submissions of the State. Therefore, the Commission takes the claims of the
Respondent as fact.
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231.
In June 2009, two criminal cases were instituted against the Victim both in
respect of kidnapping with intent to murder under the Penal Code Act of Uganda
before the Chief Magistrate’s Court of Gulu.53
232.
On 12 January 2010, the Victim officially renounced the rebellion and applied
for amnesty to the Amnesty Commission, which declared him eligible for amnesty
and forwarded his application to the DPP before issuing an Amnesty Certificate.
The DPP failed to respond to the application, effectively delaying the granting of
amnesty. At the time, the DPP did not give any reasons or explanations for its
decision not to endorse the amnesty application of the Victim as it had in the cases
of previous applicants. It was only on 17 November 2011 that the DPP wrote to the
Amnesty Commission explaining that the accused (the Victim) is not eligible for
amnesty because he is charged with grave breaches of the Geneva Conventions of
1949. But at the time the Victim applied for amnesty, January 2010, no charges
relating to the violation of Geneva Conventions were brought against him. As
established hereunder, he was only charged with such crimes eight months later.
233.
On 26 August 2010 the Victim was charged with violations of Uganda’s 1964
Geneva Conventions Act and was arraigned in the ICD on charges of 12 grave
breaches of the Fourth Geneva Convention and 53 alternative counts of Penal Code
violations such as murder, kidnapping, and aggravated robbery, allegedly
committed between 1996 and 2009.
234.
On 22 September 2011, the Constitutional Court, following a petition by the
counsel of the Victim, unanimously decided that the Victim qualified for amnesty
and had been denied equal protection of the law, and accordingly ordered for his
trial before the ICD to cease forthwith.
The two criminal cases are: Criminal Case No. AA 0118/09 and Gulu CRB 1219/09 in respect
of kidnap with intent to murder contrary to Section 243 (1) (a) of the Penal Code Act; and Criminal Case
No. AA 0119/09 and Gulu CRB 1220/09 in respect of kidnap with intent to murder contrary to Section
243 (1)(a) of the Penal Code Act.
53
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235.
On 10 November 2011, the Court of Appeal dismissed the two applications of
the Attorney General seeking to stay the decision of the Constitutional Court, and
upheld the Victim’s right to liberty and equal treatment before the law.
Accordingly, on 11 November 2011, the ICD ceased the Victim’s trial before it.
However, the Respondent did not release the Victim from detention. The
Respondent proffers two reasons for not releasing the Victim from prison. The
first reason is that the charges that were ordered to be ceased by the Constitutional
Court were those relating to the violation of the Geneva Conventions Act of 1964,
and thus the criminal charges of 2009 before the Magistrate’s Court in Gulu, in
respect of kidnapping with intent to murder, were not withdrawn and are
therefore still pending. The Respondent further argues that the Constitutional
Court did not make any order with respect to these two criminal charges and the
Complainant has never legally applied to be discharged by the Magistrate’s Court.
236.
The Commission notes that the ruling of the Constitutional Court orders the
ICD, the court from which the case was referred, to cease only the case before it.
The two criminal charges were, therefore, still pending before the Magistrate’s
Court. The Respondent is thus justified in keeping the Victim in detention.
237.
The second reason given by the Respondent is that when the ICD ceased the
trial, it did not issue a release warrant for the Victim without which the prison
officials would not be able to release him from custody.
238.
The Commission is of the opinion that as long as there are other criminal
charges pending against the Victim, the prison officials are justified in not releasing
him. The existence of other criminal charges coupled with the fact of him being an
ex-combatant who can be detained justifiably even when there are no pending
cases are perhaps some of the reasons why the Constitutional Court desisted from
ordering his release.
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239.
Following his continued detention, the Victim sought relief at the High Court,
which issued an order of mandamus compelling the Chairman of the Amnesty
Commission and the DPP to process and grant a Certificate of Amnesty for his
immediate release. The order was however not honored by the Amnesty
Commission and the DPP.
240.
According to the Respondent, it was not possible to issue the Certificate of
Amnesty because at the time the order was issued, 25 January 2012, the mandate
of the Chairman and Commissioners of the Amnesty Commission had expired
lacking the legal mandate to sign amnesty certificate.
241.
The power to renew the mandates of the Commissioners or to appoint new
ones timeously to ensure smooth transition, without creating any irregularities in
the functions of the Amnesty Commission, is exclusively that of the Government.
The government should thus take full responsibility for whatever nuisances
occurred as a result of its failure to appoint Commissioners in good time. It cannot
invoke its own flaws or failures to exonerate itself from responsibility.
242.
The Respondent further argues that in March 2012, before the Certificate of
Amnesty could be legally issued, the Supreme Court issued an order staying the
execution of any consequential orders arising from the Constitutional Court case.
According to the Respondent the ‘consequential orders’ whose execution was
stayed included the granting of an Amnesty Certificate or any order to release the
Victim from custody.
243.
The Complainant admits that the Supreme Court stayed the execution of any
consequential orders arising from the Constitutional Court case, but adds that the
Supreme Court did not give any reasons for curtailing the right to liberty of the
Victim as upheld by the Constitutional Court.
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244.
The Commission notes that although not expressly mentioned in Article 7 of
the Charter, the right to a reasoned judgment is an inherent part of the right to fair
trial.54 In this regard, the Commission’s Principles and Guidelines on the Right to
Fair Trial and Legal Assistance in Africa recognizes the right to receive reasoned
decisions as an essential element of a fair hearing. 55 According to the established
case-law of the European Court of Human Rights, judgments of courts and
tribunals should adequately state the reasons on which they are based. 56 Giving
reasons for decisions or judgments is essential for litigants to be able to decide what
course of action to take next including appeal and review. The principle of judicial
transparency also demands it.
245.
In the instant case, the Commission notes that the Supreme Court did not in
fact give any reason for its decision to stay the execution of the consequential
orders. Therefore, the Commission is of the considered view that rendering a
judicial decision that curtails the fundamental rights of an individual and that
overturns a decision of a lower court without giving proper reasons or justification
is a violation of the right to fair trial under Article 7(1)(a) of the Charter.
246.
The Complainant further challenges the validity of the decision of the Supreme
Court by contending that at the time of the stay of execution, 30 March 2012, and
as of 18 October 2012, the Supreme Court still did not have a quorum to entertain
a constitutional appeal. The Complainant adds that the Supreme Court cannot hear
the appeal until such time as judges are appointed and there is no timeframe for
the appointment of judges by the President of Uganda.
247.
In reply, the Respondent avers that the quorum issue was resolved on 20 June
2013 when new judges were appointed to the Supreme Court, making it fully
Office of the High Commissioner for Human Rights (OHCHR) and the International Bar
Association (IBA), Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers (2003), p. 293.
55
ACHPR, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa,
2003, A(2)(i).
56
ECtHR, Garcia Ruiz v. Spain, (1999), para. 26 cited in OHCHR and IBA, n 54 above, p. 293.
54
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constituted. In explaining why the Supreme Court lacked quorum, the Respondent
submits that it “regrets… that the lack of ‘quorum’ in the Supreme Court of
Uganda was brought by the passing on of Hon. Mr. Justice Amos Twinomujuni
JSC., in November 2013, however, the Supreme Court is now fully constituted, the
parties argued their respective cases on appeal…in June 2014 and the court is yet
to deliver its final judgment”.
248.
The Respondent thus does not deny the lack of quorum, rather it tries to explain
the reason why there was no quorum. But the explanation given by the
Respondent is conflicting. On the one hand, the Respondent claims that the issue
of quorum was caused by the passing on of one of the Justices in November 2013
and on the other hand, it contradicts it by stating that the issue of quorum was
resolved with the appointment of new judges on 20 June 2013.
249.
At the Admissibility stage, the Commission has confirmed that ‘the Court does
indeed have a quorum since 1 August 2013 but does not have the necessary
quorum to hear appeals of a constitutional character which can only be decided
with a quorum of 7 judges’.57
250.
The right to be tried within a reasonable period of time is guaranteed under
Article 7(1)(d) of the Charter. In its General Comment No. 13, the Human Rights
Committee stated that the right to be tried without undue delay is a guarantee that
‘relates not only to the time by which a trial should commence, but also the time
by which it should end and judgment be rendered; all stages must take place
‘without undue delay’. To make this right effective, a procedure must be available
in order to ensure that the trial will proceed ‘without undue delay’, both in first
Information obtained during meetings with the Principal Judge of the Supreme Court, His
Lordship, Justice Yorokamu Bamwine (28/08/2013) and the Minister of Justice and Constitutional
Affairs of Uganda, (29/08/2013),following a promotion mission undertaken by the Commission to the
Republic
of
Uganda
from
26
–
30
August
2013.
See
also
http://www.judicature.go.ug/data/smenu/7//Supreme_Court.html
57
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instance and on appeal’.58 In determining undue delay of proceedings, the
complexity of the case, the applicant’s conduct and that of the competent
authorities, should be taken into consideration.59
251.
There is no indication in the Respondent’s submission that the hearing of the
case was delayed for any of the abovementioned reasons. Instead, the Respondent
argues that the delay was caused by the lack of quorum caused by the passing on
of one of the Justices of the Supreme Court. As indicated above, this explanation is
contradictory but even if it is accepted, the fault is still imputable to the
Respondent State because it is within the power of the Government to appoint
Justices of the Supreme Court, which it failed to do on time.
252.
From the foregoing, the Commission concludes that even as at August 2013,
the Supreme Court did not have quorum to look into constitutional appeals, and
therefore has denied the Victim the right to be tried within a reasonable time as
guaranteed under Article 7(1)(d) of the Charter.60
253.
The Complainant also questions the impartiality of the Supreme Court by
contending that the Chief Justice of Uganda who headed the panel of Judges of the
Supreme Court that stayed the execution of the consequential orders is also the
head of the Justice Law and Order Sector in Uganda, a body that had previously
severely criticized the decision of the Constitutional Court in Constitutional
Reference No. 36 of 2011. The Complainant further alleges that the Chief Justice
also played a pivotal role in the formation of the ICD – the division meant to try
Mr. Kwoyelo.
UN Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice)
Equality before the Courts and the Right to Fair and Public Hearing by an Independent Court
Established by Law (1984), para 10.
58
ECtHR, Kemmache v. France, (1991), p. 20, para. 50; and ECtHR, Martins Moreira Case v.
Portugal, (1988), p. 17, para. 45.
60
In its judgment of 8 April 2015, the Supreme Court ordered the trial of the Victim to continue
before the ICD of the High Court. Available at http://www.pgaction.org/pdf/countries/Ug-vsThomas-Kwoyelo-Supreme-Court-judgement.pdf [accessed on 29 May 2017].
59
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254.
The Respondent on its part prefers that the paper cited in the Communication
was authored by the Transitional Justice Working Group, of which the Chief
Justice is not and has never been a member, nor did he ever endorse the views in
the said paper.
255.
The Respondent further asserts that the paper did not ‘severely criticize’ the
judgement of the Constitutional Court as alleged. It presented the Group’s views
on the Amnesty Act and its impact on Uganda’s national and international
obligations and outlines the challenges presented by the Act to the State’s ability
to fulfil its duty to ensure justice and accountability for serious human rights
violations, crimes against humanity and war crimes committed in Uganda.
256.
After carefully studying the said paper submitted as annex by the
Complainant, the Commission partly agrees with the Complainant that the article
does criticize the decision of the Constitutional Court, but regards the qualification
of such criticism as ‘severe’ as an exaggeration. The paper is largely objective and
criticizes the decision from the perspective of the international human rights
obligations of Uganda and the Juba Agreement on Accountability and
Reconciliation. The paper calls for the revision of the Amnesty Act to enable
prosecution of grave violations of human rights.
257.
Moreover, the Complainant, besides qualifying the ‘criticism’ as severe, does
not explain how or why it is severe. The Complainant does not pinpoint to sections
of the paper that he considers amount to severe criticism. But even if the criticism
was severe as alleged, that by itself does not automatically make it biased or
prejudiced as long as it is empirical and substantiated.
258.
Furthermore, although the Complainant rightly identifies the Justice Law and
Order Sector that the Chief Justice heads as the author of the paper, a clear linkage
has to be made between the views made in the article and the Chief Justice and
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how he had influenced the views and positions expressed in the paper. The
Complainant has not made that linkage.
259.
In countering the allegation that the Chief Justice played a pivotal role in the
formation of the ICD – the division meant to try the Victim, the Respondent argues
that the ICD was established in July 2008 by the then Principal Judge Honorable
James Ogoola pursuant to Article 141 of the Constitution of Uganda of 1995.
260.
The Commission has also been able to confirm that the ICD was indeed
established by Justice Ogoola pursuant to the abovementioned constitutional
provision and with a view to fulfil the Government of Uganda’s commitment to
the actualization of Juba Agreement on Accountability and Reconciliation signed
in 2008.
261.
The impartiality of a judicial body could be determined on the basis of three
relevant facts:61
1. that the position of the judicial officer allows him or her to play a
crucial role in the proceedings;
2. the judicial officer may have expressed an opinion which would
influence the decision-making;
3. the judicial official would have to rule on an action taken in a prior
capacity.
262.
In employing the above requirements to gauge the partiality or otherwise of
the Supreme Court, there is no reason to doubt that the Chief Justice plays a crucial
role in the judicial proceedings of the Supreme Court of Uganda. What is rather
irresolute is whether the paper published by the JLOS can be taken as a view the
ACHPR, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa,
(2003), 5(c).
61
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Chief Justice expressed that influenced the decision of the Supreme Court in
staying the execution of the consequential orders.
263.
Does the position expressed in the JLOS paper reflect the views of the Chief
justice? Was it biased? Did the Chief Justice have any role in convincing his
colleagues at the Supreme Court in taking the decision to stay the execution of the
consequential orders? How did the Chief Justice play a pivotal role in the
establishment of the ICD? If he had any role at all, how is that important in proving
that he was biased against the Victim?
264.
All these crucial questions have not been addressed by the Complainant. There
are thus more questions than answers and under such circumstances, the
Commission does not have enough grounds and information before it to find that
the Supreme Court or the Chief Justice was partial.
265.
Concerning the right to fair trial, the failure of the Supreme Court to provide
reasons for its decision staying the execution of the consequential orders arising
from Constitutional Reference no. 36 of 2011 violates Article 7(1)(a) of the Charter.
The Commission further rules that the unjustified delay in the hearing of the
appeal before the Supreme Court caused by the lack of quorum partially violates
Article 7(1)(d) of the Charter.
266.
The Commission finds no violation of: the right to presumption of innocence
until proven guilty under Article 7(1)(b); the right to legal counsel under Article
7(1)(c); and the right to be tried by an impartial court under Article 7(1)(d) of the
Charter.
267.
The Commission also finds no violation of Article 26 of the Charter relating to
independence of Courts as no arguments or evidence were proffered by the
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Complainant to corroborate his allegation. Nor do the facts of the case reveal
violations of Article 26.
Alleged Violation of Article 16
268.
Article 16 of the Charter relates to the right to health and provides that:
1. Every individual shall have the right to enjoy the best attainable state of
physical and mental health.
2. State Parties to the present Charter shall take the necessary measures to
protect the health of the people and to ensure that they receive medical
attention when they are sick.
269.
Both Common Article 3 of the Geneva Conventions and the relevant Article 7
of Additional Protocol II of the 1949 Geneva Conventions stipulates that the
wounded and the sick should be cared for and in the terms of the latter article ‘shall
receive, to the fullest extent practicable and with the least possible delay, the
medical care and attention required by their condition (without any distinction on
any grounds other than medical ones)’.
270.
Similarly, Articles 4(2)(a) and 5(1)(d) of the same Additional Protocol prohibit
violence to life, health and physical integrity and guarantee the right to medical
examination to internees and detainees respectively. These relate to what are
referred to as above ‘rules on material conditions of detention’.
271.
The purpose of the rules on material conditions of detention is to ensure that
detaining authorities adequately provide for detainees’ physical and psychological
needs, which include food, accommodation, health, hygiene, contacts with the
outside world, and others. Treaty and customary IHL provide a substantial
catalogue of standards pertaining to conditions of detention, as do human rights
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instruments, from which a list of standards can be derived that can be used in
assessing material conditions of detention.62
272.
The Complainant avers that although the Victim was visibly wounded from
the gunshot he sustained, on his arrest the Victim was not given medical assistance
and when he complained, he was beaten by agents retorting that the available
drugs are meant only for soldiers of the UPDF. The Complainant also alleges that
it took more than 48 hours for any medical personnel to properly examine the
Victim. As a result, to date, the Complainant still experiences pain all over his body
with routine visits to the prison hospital.
273.
These acts, according to the Complainant, which include the infliction of
physical, mental and emotional injury violate Article 16 of the Charter. If these acts
were to be established, they would be deemed violation of the applicable IHL
rules, which is the basis for finding violation of Article 16 of the Charter since the
alleged acts complained of refer to the time from the capture of the victim to the
time of his transfer to police custody for investigation and prosecution.
274.
In Media Rights Agenda et al v. Nigeria, the Commission found that ‘the
responsibility of the government is heightened in cases where the individual is in
its custody and therefore someone whose integrity and well-being is completely
dependent on the activities of the authorities. To deny a detainee access to doctors
while his health is deteriorating is a violation of Article 16’.63 The Commission
reiterated this same position in Ken Saro-Wiwa v. Nigeria wherein the victim was
denied medical services despite official requests made by a prison doctor.64
ICRC, n 34 above, p. 16.
Communications 105/93-128/94-130/94-152/96 Media Rights Agenda et al v. Nigeria (1998),
para. 91.
64
ACHPR, Communications 137/94, 139/94, 154/96 and 161/97 – International Pen,
Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa) v. Nigeria, (1998), para. 112.
62
63
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275.
What makes the instant case different from the above two is that, in the instant
case, first, the Respondent specifically denies the allegations, claiming that the
proper and required medical services were provided to the Victim and even
provides the name of the hospital where the Victim was treated in Kampala after
he was captured, supported by an affidavit. Second, as has been established earlier,
the applicable standards to be applied to evaluate the adequacy and timeliness of
the medical care provided, are those of IHL. Moreover, the Complainant does not
indicate whether the alleged acts and omissions were committed in Uganda or
DRC, making it indeterminate, and hence difficult to properly assess the
circumstances as the requirements and expectations for the provision of medical
services in the battlefield and away from the battlefield are different.
276.
The expression ‘to the fullest extent practicable’ in Article 7(2) of Additional
Protocol II was incorporated as a matter of realism, in order to take into account
the means and personnel available. In the battlefield, it is sometimes materially
impossible to immediately provide the care and attention required. The obligation
remains to provide it and to do so as well and as quickly as possible, given the
circumstances.65
277.
In a situation where the Commission does not have specific information on
where or under what circumstances the Victim was denied proper medical care for
more than 48 hours, it would not be in a position to decide if the State has failed to
provide medical care as required.
278.
In addition, there is no forensic or medical evidence submitted which proves
that the Victim is actually experiencing continuing pain, and that the pain is as a
International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II) 8 June 1977, Commentary of 1987 – Protection and Care, available at https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/cb507989c1767179c12563c
d0043a5d3
65
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result of the delay and lack of medical treatment or injuries sustained during a
beating while in detention.
279.
The regular visits that he is allowed to have to the prison hospital, as conceded
by the Complainant, to the contrary hint that he was at least receiving treatment
when needed.
280.
There are also no records of complaints lodged by the Complainant or the
Victim requesting to get treatment; or against denial of treatment; or inadequacy
of treatment.
281.
As established above, the Complainant was also unable to make a case for
torture, inhuman and degrading treatment, which if proven, could have made a
case for violation of the right to health.
282.
In light of the foregoing, the Commission finds no violation of Article 16 of the
Charter by the Respondent State.
Obiter Dictum
283.
As it is evident from the analysis above on Article 3 of the African Charter, the
amnesties granted in relation to the conflict in Northern Uganda was a bone of
contention. In the light of that, in this obiter dictum the Commission addresses the
issue of blank amnesties vis-à-vis the international and regional human rights
obligations of States Parties to the Charter.
284.
One of the issues at the core of this Communication concerned with the
application of amnesty as an instrument of conflict settlement. In the case at hand,
the Commission has confined its analysis to the issue of whether the application of
the Amnesty Act complied with the requirements of the right to equality.
Accordingly, the Commission did not examine the question of compatibility of the
use of amnesty with the rights guaranteed in the African Charter. However,
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pursuant to Article 60 of the African Charter, the Commission deems it fitting that
it pronounces itself on this issue given the lack of clear guidance on ensuring
compliance with the requirements of the African Charter when states resort to the
use of amnesty as necessary means for pursuing the objectives of achieving peace
and justice in times of transition from violence to peace. This is further necessitated
by the position that the Commission took herein above in finding violation of
Article 3 of the Charter in the application of amnesty, which, unless it is read
carefully, may be wrongly interpreted as sanctioning blanket amnesty.
285.
While amnesties have a long pedigree in peace negotiations and have
historically been commonly used as part of peace settlements even for armed
conflicts manifesting most atrocious acts, 66 developments in international law
have in recent years laid down rules regulating the use of amnesties in peace
settlements. These rules of international law aiming at giving force to human rights
and IHL principles prescribe the conditions that should be met when societies have
to have recourse to amnesties as a necessary means of ending the continuation of
armed violence and the violations that inevitably accompany such violence.
286.
Amnesty67 can be defined as the legal measures that are used in transitional
processes, often as part of peace settlements, to limit or preclude the application of
criminal processes and, in some cases, civil actions against certain individuals or
categories of individuals for violent actions committed in contravention of
applicable human rights and IHL rules. While amnesties are usually applied for
conduct committed before they have been established, there have been instances
where they have been used to retroactively nullify legal liability previously
established.68 Amnesties commonly specify a category or categories of
Andreas O’Shea, Amnesty for Crimes in International Law and Practice (2002), p. 1
The word ‘amnesty’ is derived from the Greek word amnestia, which is closely linked with
another Greek term amnestikakeia, which means forgetting legally wrongful acts. Today, amnesty is
generally understood as immunity in law from either criminal or civil legal consequences or from both
for wrongs committed in the past in a political context.
68
Office of the United Nations High Commissioner for Human Rights, Rule-of-Law Tools for
Post-Conflict State: Amnesties, (2009), p. 5.
66
67
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beneficiaries, such as members of rebel forces, state agents or political exiles.
Although they can be adopted unilateral acts of the state including as executive
decrees, amnesties are usually established as part of a peace settlement that is
given a force of law.
287.
The exemption from criminal prosecution and, possibly, civil action achieved
through amnesty is typically limited to conduct occurring during a specific period
and/or involving a specific event or circumstance, usually in armed conflict.
Typically, these are not normal or ordinary circumstances. Rather, they are
characterized lack of political and socio-economic stability, weak or dysfunctional
institutions and diminished security. In such conditions, the compatibility of
measures amounting to amnesties with the African Charter can be looked at in two
ways. First, as noted in the substantive part of this decision, instead of the direct
application of human rights standards that is ordinarily done in normal times, it is
the standards of IHL, which apply in times of conflict that are used to assess the
existence of violation of Charter rights. Second, such measures have also to be
examined on the basis of the limitations clause and hence on the basis of whether
they are justifiable and proportional limitations acceptable under international
law.
288.
Amnesties may exclude some or all conduct, including those that may be
deemed crimes under international law. It is now common to make a distinction
between blanket amnesties and conditional amnesties. Blanket amnesties, also
known as unconditional amnesties, can be defined as those that “exempt broad
categories of serious human rights offenders from prosecutions and/or civil
liability without the beneficiaries’ having to satisfy preconditions, including those
aimed at ensuring full disclosure of what they know about crimes covered by the
amnesty, on individual basis”.69 As they have the effect of excluding any form of
accountability and hence enabling impunity, blanket amnesties are deemed to be
69
Office of the United Nations High Commissioner for Human Rights, n 74 above, p. 8.
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incompatible with human rights and IHL rules. Conditional amnesties are those
that usually offer relief from criminal conviction or criminal prosecution altogether
for defined category of actors and on meeting certain preconditions including full
disclosure of what they know about the conducts covered by the amnesty and
acknowledgement of responsibility.
289.
A number of widely ratified international human rights and humanitarian law
treaties70 explicitly require States Parties to ensure that criminal proceedings are
instituted against suspected perpetrators of prohibited acts in these instruments. It
is generally accepted that an amnesty that completely foreclosed accountability
measures for such prohibited acts would be in contravention of these instruments.
Amnesties are also deemed to be incompatible with human rights treaties like the
African Charter that do not explicitly address prosecution but which have been
understood to require State Parties to institute judicial measures when serious
violations occur unless such amnesties meet the requirements of justifiable
restrictions acceptable in human rights treaties. Amnesties that preclude
accountability measures for gross violations of human rights and serious
violations of humanitarian law, particularly for individuals with senior command
responsibility, also violate customary international law.
290.
The Inter-American human rights system has a rich jurisprudence relating to
national amnesties as a result of its historical context where a number of countries
Uganda is party to the Genocide Convention as well as the four Geneva Conventions and its
additional Protocols. It has ratified all of the core international human rights treaties, with the exception
of the International Convention on the Protection of all Persons from Enforced Disappearances, as well
as other significant treaties like the Optional Protocol to the Convention on the Rights of the Child
(CRC) on the use of Children in Armed Conflict (OPCRC-II). Uganda ratified the ICC Rome Statute in
2002 and has also supported and signed important international instruments including the Paris
Principles and Commitments of 2007 on the role of children in armed forces or groups. Uganda has also
ratified important regional treaties that impose certain human rights obligations such as the
constitutive acts of the African Union and the East African Community, the International Great Lakes
Conference Protocols and most significantly the African Charter on Human and People’s Rights, the
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (the
Maputo Protocol)10 and the African Charter on the Rights and Welfare of the Child and its
corresponding protocol.
70
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in Latin America had adopted amnesties following periods of human rights
violations by repressive regimes in an effort to shield officers from accountability
for violations. In this regard, the Inter-American Court of Human Rights declared
invalid a blanket amnesty in Peru in 2001, which was found to discourage
investigations and deny any remedy to the victims. 71 Following the precedent that
it set in the blanket amnesty in Peru, the Inter-American Court has since declared
the amnesty laws in Chile, Argentina and El Salvador to be incompatible with the
States’ duty to prosecute crimes and human rights violations.72
291.
While it is acknowledged that many types of amnesties have been adopted
across the world, unconditional amnesties with no accompanying accountability
measures are particularly problematic in terms of States’ compliance with
international obligations, most particularly relative to their duties to respect and
protect human rights. Although this is the first instance where the African
Commission addresses the issue of amnesties in reasonable detail, there have been
instances in particular communications in which the Commission found legal
measures completely excluding prosecution with no alternative measures of
accountability as being incompatible with the provisions of the African Charter.
For example, the Commission held that amnesties could be contrary to the right of
individuals to have their cause heard under Article 7(1) of the African Charter,73
unless they are conditional and constitute justifiable and proportional limitations
acceptable under international law.
292.
In its normative elaboration of the provisions of the African Charter as well, the
African Commission advanced the view that blanket amnesties constitute
Inter-American Court of Human Rights, Barrios Altos v. Peru, (2001), paras. 41-44.; Loazya
Tamayo v Peru, (Reparations) para 168, (“states…may not invoke existing provisions of domestic law,
such as the Amnesty Law in this case, to avoid complying with their obligations under international
law.”)
72
Human Rights Watch, Selling Justice Short: Why Accountability matters for peace, Report
(2009), p. 17
73
See Communication 245/02: Zimbabwe Human Rights NGO Forum v Zimbabwe
71
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violations of specific rights of the African Charter. A case in point is its General
Comment No. 4 on prohibition of torture. In this General Comment, the
Commission held that states are precluded from extending blanket amnesty for
torture as a gross violation of international human rights law, as a crime against
humanity and as a war crime. It violates the victim’s right to judicial protection
and to having his cause being heard.74
293.
It is, therefore, the considered view of the Commission that blanket or
unconditional amnesties that prevent investigations (particularly of those acts
amounting to most serious crimes referred to in Article 4(h) of the AU Constitutive
Act) are not consistent with the provisions of the African Charter.75 African states
in transition from conflict to peace should at all times and under any circumstances
desist from taking policy, legal or executive/administrative measures that in fact
or in effect grant blanket amnesties, as that would be a flagrant violation of
international law. When they resort to amnesties as necessary measures for ending
violence and continuing violations and achieving peace and justice, they should
respect and honor their international and regional obligations. Most particularly,
they should ensure that such amnesties comply with both procedural and
substantive conditions. In procedural terms, conditional amnesties should be
formulated with the participation of affected communities including victim
groups. Substantively speaking, amnesties should not totally exclude the right of
victims for remedy, particularly remedies taking the form of getting the truth and
reparations. They should also facilitate a measure of reconciliation with
perpetrators acknowledging responsibility and victims getting a hearing about
and receiving acknowledgment for the violations they suffered.
Decision of the Commission on the Merits
74
ACHPR, General Comment on the Right to Redress for Victims of Torture and other Cruel, Inhuman or
Degrading Punishment or Treatment under Article 5 of the African Charter on Human and Peoples’ Rights, para
28.
75 See Para 7(1) of the African Charter
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294.
For the foregoing reasons, the Commission declares that:
i.
There is no violation of Articles 4, 5, 6, 7(1)(b) & (c), 16 and 26 of the
African Charter.
ii.
The Respondent State has violated the rights of the Victim protected
under Articles 3 and 7(1)(a) of the African Charter.
iii.
There is a partial violation of Article 7(1)(d) of the African Charter
relating to the right to be tried within a reasonable time.
295.
In view of the above, the Commission:
i.
Dismisses the Complainants prayers under ‘b’, ‘c’ and ‘d’ relating
to effective and impartial investigation into the arrest, detention
and subsequent treatment of the Victim; enforcement of domestic
legislation relating to preventing torture, cruel and other
inhuman and degrading treatment or punishment; and
investigation of the alleged violations and trial of the perpetrators
respectively.
ii.
Hereby orders the Government of Uganda to pay adequate
compensation to the Victim for the violation of Articles 3 and
7(1)(a) and (d) of the African Charter. In assessing the manner
and mode of payment of compensation, the Government of
Uganda shall consult the Victim and his legal representatives and
shall be guided by international norms and practices relating to
payment of compensatory damages. The Commission avails its
good offices to facilitate the implementation of this ruling.
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iii.
Requests the Government of Uganda to inform the Commission
within one-hundred and eighty (180) days of being notified of
this decision, the measures taken to implement the present
decision in accordance with Rule 112(2) of the Rules of Procedure
of the Commission.
iv.
Urge the Uganda Human Rights Commission to use its statutory
powers under section 52 (1)(h) of the Constitution of Uganda to
monitor the Government’s compliance with the decision.
Done in Banjul, The Gambia, at the 23rd Extra-Ordinary Session of the
African Commission on Human and Peoples’ Rights
held from 12 to 22 February 2018.
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