• September 16, 2011
  • News & Analysis
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Kwoyelo trial: Prosecution says Amnesty Act of 2000 unconstitutional.

Today we want to put the Kwoyelo trial back on your radar, and invite you to join us in wrestling with these matters of justice, policy, and expediency.  Our director of advocacy, Paul Ronan, was in Gulu, Uganda for the second phase of proceedings in early August. He blogged about what he saw, what he heard, and how the people of northern Uganda felt about Thomas Kwoyelo being tried for the crimes he committed on behalf of the LRA.

To refresh your memory, Thomas Kwoyelo was a commander in the LRA who was captured in March 2009. He applied for amnesty under the Uganda Amnesty Act of 2000, but he did not receive it. Kwoyelo is the first of 12,907 LRA commanders and soldiers NOT to receive amnesty under this law. Now he is the first LRA commander to be put on trial by the Ugandan government, and the first person to be tried by Uganda’s International Crimes Division.

In recent developments, Uganda’s state attorney, Patricia Mutesi, is asking the Constitutional Court in Kampala to rule that the Uganda Amnesty Act of 2000 was unconstitutional in the first place. She argues that it set–and continues to set–an unconscionable precedent of impunity for the most brutal of war crimes.

Last week Ashley Benner of the Enough Project wrote about the Kwoyelo trial for The Christian Science Monitor. She argues that if the Constitutional Court indeed declares the Amnesty Act to be unconstitutional, then the conflict will be prolonged and the real-life trickle-down effect can only be negative. If there is no amnesty, then present-day LRA fighters have no motivation to defect, and every deterrent. It will reinforce their fear of attempting escape and returning to their families. Without defections, it will take much longer to end the violence that continues in DRC, South Sudan, and CAR.

Theoretically and categorically, impunity for war crimes cannot be tolerated. But this situation requires something other than the theoretically and categorically correct response because of the unique circumstances of the conflict—mainly that most of the soldiers and commanders were abducted and indoctrinated into the LRA as children. Kwoyelo himself was abducted as a 13-year-old.

In a time of increasing focus on the need to hold perpetrators accountable for situations of mass atrocity, Uganda seems to be trying to make a show of good behavior in front of the international community—and especially to show off the power of its new International Crime Division (Human Rights Watch explains the background of the ICD). But if the Uganda chooses this moment to make a public stand against impunity for war crimes, it will probably end up perpetuating them.

As Paul noted in his blog, some civilians in northern Uganda blame the Ugandan government for their suffering more than former LRA.  Through negligence, the Ugandan government allowed Joseph Kony and the LRA to murder, maraud, abduct, and rape with impunity long before the Amnesty Act of 2000.

For Resolve, we are watching this trial with intense interest as it will certainly affect the next stage of the conflict.

I started by saying that we wrestle with the ethical and political implications of this court case because we desire both peace and justice. We deplore the crimes Kwoyelo committed. Amnesty doesn’t seem fair. But in this case it will save lives and that’s our larger concern. We hope that Kwoyelo will be granted amnesty so that current LRA fighters will feel encouraged to defect and the war will end sooner.

Nevertheless, we realize that we can’t affect the outcome of this court case; we can only respond to the outcome. But we can affect how our government responds to the crisis. And that’s what we’re focusing on this fall.

-Azy

For more insight into the legal and historical background and implications, check out Human Rights Watch’s Q&A on the trial.  It’s a very helpful resource. And of course we’ll be sure to keep you posted with new developments.

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