Compared to the vociferous campaign against Lord’s Resistance Army (LRA) leader Joseph Kony, the silence surrounding the only LRA trial to date is deafening. Things are much quieter around Thomas Kwoyelo since his first court appearance in the town of Gulu in northern Uganda in July 2011.

By Mark Schenkel, Kampala

Arrested three years ago in the DR Congo, Kwoyelo, a former LRA member, remains in detention, awaiting the outcome of a legal battle which will determine whether his trial will continue. In the meantime, Kwoyelo’s case is fuelling debate among local and international activists about a central question of transitional justice: how to reconcile the demands of both prosecution and amnesty?

Kwoyelo is the first to be tried before the International War Crimes Division (ICD) of the Uganda High Court, set up in 2008 to deal with LRA militants. Accused of serious crimes as a senior commander, he might still benefit from the Amnesty Act of 2000, just like 16,000 other LRA fighters. Uganda needs to streamline the parallel, partially conflicting mechanisms if it wants to prevent this sort of confusion in future.

“Illegal detention”
The question is not so much whether Kwoyelo personally should be pardoned. Even critics of the Amnesty Act say he should. “Though I believe Kwoyelo ideally should face trial, our adherence to the rule of law forces me to say he should receive amnesty in accordance with the orders of the constitutional court,’’ says Sarah Kasande of the International Centre for Transitional Justice, underlining what she calls the ‘absurdity’ of Uganda’s current combination of a war crimes court and a ‘blanket’ amnesty act. Kwoyelo’s detention, Kasande says, “is illegal.’’

Kwoyelo remains imprisoned despite last year’s rulings from both the Constitutional Court and the Court of Appeal that he is entitled to amnesty. To deny Kwoyelo amnesty is discriminatory as other LRA members did benefit, the courts reasoned. But Kwoyelo is still detained on technicalities while the attorney general seeks a ruling from the Supreme Court. A hearing is scheduled for March 30th.

The problem could have been foreseen, says Kasande. “The Amnesty Act was introduced at the height of the LRA conflict. It lured LRA members out of the bush,” she says. “Then in 2003, Uganda referred the conflict to the International Criminal Court. But after peace talks in Juba collapsed in 2006 and the War Crimes Division was set up, government failed to make use of its authority to exclude individuals from the Amnesty Act. Because of this, a senior rebel like Kwoyelo might now walk free by just saying he denounces militancy’’.

The possibility to exclude persons from the Amnesty Act was introduced in 2006. The Ministry for Internal Affairs drew up a list of names but after being confronted by a parliament that demanded more information, he never came back to it again. Why remains unclear. Kasande says only lesser perpetrators should remain eligible for amnesty, under conditions, “like cooperating with truth-seeking mechanisms.’’ There could be amendments in May, when the Amnesty Act comes up for renewal.

Keep the Amnesty Act
Stephen Oola acknowledges that government never used its powers to exclude LRA members from amnesty even though it is obliged by international law to prosecute certain commanders. Oola criticises donor countries for pushing for prosecution mechanisms, knowing that Uganda still had its Amnesty Act. Oola, an advocate at Uganda’s Refugee Law Project which favors amnesty over prosecution, is happy the Act hasn’t been amended. “Field research shows most people in LRA-affected regions wants amnesty to remain in place” he says. “People view amnesty as a way to find their abducted children and reconcile. Most LRA fighters are abductees.’’

Kasande believes militants will still trickle in from the bush when amnesty is conditional. Oola doubts that. “Defecting from the LRA is always portrayed as being easier than it is. Abductees live in fear of reprisals when caught trying to escape. Defectors need to be certain that amnesty awaits them.’’ But making amnesty conditional is difficult, says Oola. “How do you decide who is high-ranking and who not? Or who killed a lot? Kwoyelo was abducted as a child and brainwashed. He is victim turned perpetrator.’’