Communication 431/12 – Thomas Kwoyelo v. Uganda
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respect of kidnapping with intent to murder, were not withdrawn and are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.
64
62nd Ordinary Session, 25 April – 9 July 2018
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