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