New amnesty precedent set by the Kweyelo case: what does it mean for Ongwen?

Published: 29 May 2015
Source: Fauzia Sewa

On 8 April 2015, the Supreme Court of Uganda decided the matter of Uganda vs. Kweyelo and set a new precedent that narrowed the application of Uganda’s Amnesty Act, clarifying that not all crimes are eligible for amnesty – only those that are political crimes, or those that are directly linked to the rebel group’s political agenda.

The Supreme Court stated that rape, the wilful killing and maiming of civilians, torching IDP camps – all crimes that Kweyelo had been charged with – have nothing to do with furthering a political agenda and thus the Amnesty Act could not apply. But the court also acknowledged that such persons still have the opportunity, during the trial, to raise the argument that the crimes they are charged with were in furtherance to the rebel group’s political agenda as a defence.

Kweyelo was a commander in the rebel Lord’s Resistance Army (LRA). He was captured by the Uganda Peoples Defence Forces in Garamba National Park in the Democratic Republic of Congo in 2009 and was subsequently brought back to Uganda and detained. While in detention in 2010, he made a declaration before an officer in charge of the prison that he was renouncing rebellion and seeking amnesty. There was precedent for this as several LRA members of a similar seniority had previously been granted amnesty under the Amnesty Act.

However, the Directorate of Public Prosecutions proceeded with criminal charges against Kweyelo in respect of various offences under The Geneva Conventions Act, and he was committed for trial to the International Crimes Division of the High Court on an amended indictment containing 50 counts. Kweyelo later petitioned that he should be eligible for amnesty under the Amnesty Act. And it was this issue the Supreme Court ruled on.

This new judgment is interesting in its own right, but raises an interesting issues in relation to Dominic Ongwen’s case.

Ongwen was about 10 years old when he was abducted by the LRA in Northern Uganda while he was walking to school. He then served in the LRA and eventually rose to in the ranks to become a commander. He was surrendered to the ICC’s custody on 17 January 2015, and is awaiting his confirmation of charges hearing, due to commence in January 2016.

Ongwen’s case opened debate in and outside of Uganda on the role of the ICC in delivering justice, and has brought to the fore a number of highly complex questions. First, how does one deal with the culpability of individuals for offences committed as a result of their forceful conscription into rebel ranks as a minor? Some argue that such a person abducted as a child should not be held accountable owing to the failure of the Ugandan state to protect him in the first place. They argue that the trial of Ongwen before the ICC would be double victimisation.

Second, this raises the question of whether Ongwen should be tried at the ICC or in Ugandan courts? Some argue that since the referral of the Uganda situation to the ICC in 2005, Uganda has reformed its legal and institutional framework and is now willing and able to try grave crimes as provided under the Rome Statute, the ICC’s founding document. Others argued that while the Amnesty Act might have prevented Uganda from prosecuting Ongwen, this judgment now makes that unlikely.

In considering both questions, however, the interest of victims, their meaningful participation, and the potential for them to access adequate reparations that must be a central consideration. On this basis, it might be worth considering some discussions about how the case could be best conducted in order to meet these goals.

One option to consider is whether either the government of Uganda or the accused should petition to end the trial at the ICC and to move consideration of the case to Uganda. Such a petition could be made if Uganda initiated a domestic process on the basis of Article 17 of the Rome Statute, which provides that cases will not be heard at the ICC if they have already been considered at the domestic level or by petitioning the prosecutor to withdraw the case on the basis that it is not “in the interests of justice” as provided for in Article 53 of the statute.

If the case were suspended at the ICC level, the question would arise as to how Uganda might address the justice issues. The recent judgment in Kweyelo’s case has provided a favourable environment for providing Ongwen, and the LRA victims, with justice by having the trial back under the Ugandan courts. In this case, that trial could take place at the International Crimes Division of the High Court of Uganda.

Some on the ground, and particularly members of the Acholi community where Ongwen was born and where he committed most of his alleged crimes, have suggested the creation of a reconciliation-based traditional justice system. They have made numerous calls on the government and the international community for Ongwen to be sent back “home” and have justice served to him from his community, under the local traditional justice mechanism, Mato Oput. Such a suggestion would likely raise more complex issues with regard to the transfer of jurisdiction from the court than would a national trial, which would fit more easily into an admissibility challenge under the Rome Statute and would also raise questions about the role of non-Acholi communities and victims in the process.

If the trial remains at the ICC, the court could consider an in situ trial, which means holding ICC proceedings in Uganda, or elsewhere in the region. Article 62 of the Rome Statute states that, unless otherwise decided, the place of the trial shall be the seat of the court in The Hague. However, Article 3(3) allows the court to sit elsewhere wherever it considers it desirable, and Rule 100(1) of the ICC Rules of Procedure and Evidence stipulates that this decision should be taken in the interests of justice.

Ultimately, there is no perfect result. For the people of northern Uganda who have already lost so much, one trial can only deliver so much justice and expectations have to be realistic. However, that is not to say that the voices of victims should not be heard and listened to. The outcome of this trial, wherever it takes place, will only help to heal rather than exacerbate wounds if the needs of victims are brought sharply into focus.

Programmes: Resolving Displacement, Justice and Accountability
Regions: Great Lakes Region, Uganda
Type: IRRI Blog