Communication 431/12 – Thomas Kwoyelo v. Uganda
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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62nd Ordinary Session, 25 April – 9 July 2018