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Uganda: Latest Statements, News and Reports

10 Oct 2011

Dear all,

Please find below information about recent developments related to the International Criminal Court's (ICC) investigation in Uganda.

This message includes the latest information on the first trial in the Ugandan International Crimes Division (I), as well as other news and opinions (II).

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

With regards,
CICC Secretariat
www.coalitionfortheicc.org

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I. UPDATES ON INTERNATIONAL CRIMES DIVISION FIRST TRIAL

A. COALITION MEMBER STATEMENTS

1. "Uganda: Court's decision a setback for accountability for crimes committed in northern Uganda conflict" Amnesty International, 23 September 2011
http://www.amnesty.org/en/library/asset/AFR59/015/2011/en/93159d77-dbec-4950-a239-8dcfcd19c98a/afr590152011en.html

" Amnesty International is concerned that yesterday's decision by Uganda's Constitutional Court to uphold the provisions of Uganda's Amnesty Act which grants amnesties for serious crimes and human rights violations is a big step backwards in delivering justice to victims of human rights violations in the northern Uganda conflict. The five-judge panel held that Thomas Kwoyelo, a former Commander with the rebel Lords Resistance Army (LRA), was entitled to amnesty for any crimes he may have committed during the longstanding conflict between the LRA and the government's forces, - the Uganda Peoples' Defence Forces. The state has not yet indicated whether it would appeal the Court's decision.

Mr Kwoyelo was charged with 53 separate counts of murder, willful killing, kidnap with intent to kill, aggravated robbery and destruction of property among other offences during attacks that he allegedly commanded in Abera village in Parubanga, Pabbo Sub County in Amuru district, during the conflict that started in 1986. He was charged under the provisions of the Geneva Conventions Act, 1964 and the Penal Code Act. The prosecution publicly stated that it did not charge Mr. Kwoyelo with crimes against humanity or war crimes under the provisions of the International Crimes Act of 2010 because the law could not be applied retroactively. Mr. Kwoyelo first appeared before a three-judge bench of Uganda's newly established 'International Crimes Division' of the High Court on 11 July 2011 where he denied the charges. Kwoyelo then applied for a stay of the trial proceedings pending the determination of his application to the Constitutional Court on the ground that his trial before the High Court infringed on his constitutional rights to fair treatment. Kwoyelo claimed in his application that other rebel soldiers had previously been granted amnesty and that his trial constituted different treatment if his application for an amnesty was rejected by the government.

Amnesty International and other organisations documented human rights violations committed throughout the conflict in northern Uganda. Killings, rapes, sexual slavery, abductions of children and other inhumane acts were carried out against civilians by both rebel and government soldiers on a massive scale and in a manner that amounted to crimes under international law, including crimes against humanity and war crimes. Amnesty International has repeatedly called on the government of Uganda to fulfil its obligations under international law to investigate and prosecute all crimes committed before competent, impartial and independent courts in fair trials without recourse to the death penalty; to ensure that the truth about the crimes is told; and to provide full and effective reparations to the victims to address their suffering and to help them rebuild their lives.

Disturbingly, the government has done little to ensure justice, truth and reparations for the crimes committed by all sides to the conflict, including crimes committed by Uganda's armed forces. Only a handful of investigations and prosecutions of members of the armed forces for crimes against civilians have been conducted, in most cases before a deeply flawed military justice system which violated the accused individuals' right to a fair trial and in a number of cases imposed the death penalty. Thousands of former LRA soldiers have benefited from an amnesty. Under international law, Uganda is prohibited from granting amnesty to individuals who may be responsible for such crimes, regardless of whether the underlying offences are qualified as crimes under international law.

In this context, yesterday's court decision to affirm the provisions of the Amnesty Act further entrenches the pervasive impunity in Uganda for serious crimes and human rights violations. The Ugandan government should revoke any amnesty applicable to crimes under international law and not impose amnesties, immunities, statutes of limitations and pardons for crimes under international law. It should ensure prompt and effective investigation and prosecution of all of the crimes before competent, impartial and independent courts in fair trials. The government must also establish effective reparation programmes designed in consultation with victims and civil society."

2. Summary of Constitutional Court Ruling, Thomas Kwoyelo case, Refugee Law Project, 23 September 2011, http://www.refugeelawproject.org/others/kwoyelo_ruling_summary.pdf

"The Constitutional Court in Uganda yesterday (22nd September 2011) halted the trial of former LRA commander Col. Thomas Kwoyelo before the International Crimes Division, formerly the War Crimes Division. Kwoyelo was charged with 12 counts and 53 alternative charges amounting to crimes against humanity under the Geneva Convention Act and other Penal legislations in Uganda.

In a unanimous judgement signed by all five Justices of Appeal: Twinomujuni, Byamugisha, Nshimye, Arach-Amoko and Remmy Kasule, the court said that the amnesty act of Uganda is constitutional and that "it was satisfied that the applicant (Kwoyelo) has made a case showing that the Amnesty Commission and the Director of Public Prosecution (DPP) have not accorded him equal treatment under the Amnesty Act."

The court ordered that Kwoyelo's file be returned to the ICD "with a direction that it must cease the trial of the applicant forthwith." According to Kwoyelo's defence counsel John Francis Onyango, "unless the state appeals the decision, Kwoyelo should be released forthwith."

The Constitutional court ruling touched upon several issues of critical importance namely:
* The amnesty law in Uganda is constitutional;
* The application of amnesty in Uganda is not inconsistent with Uganda's obligation under international law;
* The Parliament of Uganda has powers to make laws on any matter for the peace, order, development and good governance of Uganda;
* Uganda's amnesty act was meant to be used as one of the many possible ways of bringing the rebellion to an end by granting amnesty to those who renounced their activities;
* Uganda's amnesty law is distinguishable from the South African Amnesty under the TRC Act;
* Uganda's amnesty law does not whittle down the prosecutorial powers of the
DPP or interfere with its independence;
* There is no uniform international standard or practice which prohibit states from granting amnesty;
* Uganda can use amnesty to solve its domestic problems while still in compliance of its international obligations;
* Pardon is a legal right as long as requirements for it grant has been fulfilled. ..."

READ RELATED RULING:

3. Constitutional Court of Uganda, Constitutional Petition No.036/11, 22 September 2011, http://www.refugeelawproject.org/others/kwoyelo_ruling.pdf

B. RELATED NEWS AND OPINIONS

1. "Uganda Gets Time to Solve Witness Safety Problem - Court officials say appeal against acquittal of LRA suspect may allow them to get protection measures in place for future trials," by Arthur Okot, Bill Oketch and Gillian Lamunu, IWPR, 3 October 2011 http://iwpr.net/report-news/uganda-gets-time-solve-witness-safety-problem
2. "Uganda needs an effective truth and reconciliation mechanism" by Vincent Babalanda, Daily Monitor, 4 October 2011, http://www.monitor.co.ug/OpEd/Commentary/-/689364/1247492/-/12qrv0yz/-/index.html
3. "Amnesty is the price northern Uganda paid for peace in the region" by Lino Owor Ogora, Daily Monitor, 4 October 2011, http://www.monitor.co.ug/OpEd/Letters/-/806314/1247450/-/10tmcoj/-/index.html
4. "Former IDPs divided over ICC trial of Kony officers" by Emmanuel Opio, Daily Monitor, 30 September 2011, http://www.monitor.co.ug/News/National/-/688334/1245300/-/bimr34z/-/index.html
5. "Conflicting Impulses: The Debate on Amnesties in the Case of Uganda's Thomas Kwoyelo and Beyond" by Mark Kersten, Justice in Conflict, 28 September 2011, http://justiceinconflict.org/2011/09/28/conflicting-impulses-the-debate-on-amnesties-in-the-case-of-uganda’s-thomas-kwoyelo-and-beyond/
6. "Government appeals against Kwoyelo release" by Anthony Wesaka, Daily Monitor, 26 September 2011, http://www.monitor.co.ug/News/National/-/688334/1243006/-/bio82nz/-/index.html
7. "Ex-rebel Kwoyelo walks to freedom" by Anthony Wesaka, Daily Monitor, 23 September 2011, http://www.monitor.co.ug/News/National/-/688334/1241396/-/bipj4nz/-/index.html
8. "Uganda Government News: Government says former LRA rebel Kwoyelo deserved no amnesty" UG Pulse, 26 September 2011, http://www.ugpulse.com/uganda-news/government/government-says-former-lra-rebel-kwoyelo-deserved-no-amnesty/21860.aspx
9. "Uganda: Ex-Rebel Kwoyelo Walks to Freedom" by Anthony Wesaka, The Monitor, 23 September 2011, http://allafrica.com/stories/201109230113.html
10. "Ugandan grants LRA rebel amnesty" by Arne Doornebal, Radio Netherlands, 23 September 2011. http://www.rnw.nl/africa/article/ugandan-grants-lra-rebel-amnesty
11. "Ugandan LRA rebel Thomas Kwoyelo granted amnesty" BBC World, 22 September 2011. http://www.bbc.co.uk/news/world-africa-15019883
12. "Uganda court rules to grant rebel leader amnesty" AP, 22 September 2011, http://www.cbsnews.com/stories/2011/09/22/ap/africa/main20110090.shtml
13. "Former LRA commander Kwoyelo free" by Hillary Nsambu, The New Vision, 22 September 2011, http://www.newvision.co.ug/D/8/12/765742
14. "Kwoyelo Granted Amnesty and Set Free But Questions Remain" by Mark Kersten, Justice in Conflict, 22 September 2011, http://justiceinconflict.org/2011/09/22/kwoyelo-granted-amnesty-and-set-free-but-questions-remain/
15. "Uganda: LRA's Kwoyelo Ruling for Thursday" by Anthony Wesaka, The Monitor, 21 September 2011, http://allafrica.com/stories/201109220007.html
16. "Squashing the Amnesty Law in Uganda? Possible Implications of the Kwoyelo Trial" by Patrick Wegner, Justice in Conflict, 12 September 2011, http://justiceinconflict.org/2011/09/12/squashing-the-amnesty-law-in-uganda-possible-implications-of-the-kwoyelo-trial/
17. "Uganda Seeks to End Amnesty for LRA Rebels" by Ashley Benner, Enough Project, 8 September 2011, http://enoughproject.org/blogs/uganda-seeks-end-amnesty-lra-rebels
18. "'Witness To the Trial' Monitoring the Kwoyelo Trial" Refugee Law Project, 22 September 2011, http://www.refugeelawproject.org/others/kwoyelo_ruling_summary.pdf
19. "Court frees ex LRA rebel Kwoyelo" by Anthony Wesaka, Daily Monitor, 22 September 2011, http://www.monitor.co.ug/News/National/-/688334/1240876/-/biq4kbz/-/index.html
20. "LRA's Kwoyelo ruling for Thursday" by Anthony Wesaka, Daily Monitor, 21 September 2011, http://www.monitor.co.ug/News/National/-/688334/1240338/-/biq8l3z/-/index.html
21. "Kwoyelo's bid to block trial awaits judgment" by Ephraim Kasozi, Daily Monitor, 19 August 2011, http://www.monitor.co.ug/News/National/-/688334/1221612/-/bjxjr4z/-/index.html
22. "Amnesty law contravenes Constitution, says AG" by Ephraim Kasozi, Daily Monitor, 17 August 2011, http://www.monitor.co.ug/News/National/-/688334/1220280/-/bjyc1yz/-/index.html
23. "Judges, Acholi leaders differ on LRA case" by James Eriku & David Livingstone, Daily Monitor, 8 August 2011, http://www.monitor.co.ug/News/National/-/688334/1215196/-/bkhf3tz/-/index.html
24. "Kwoyelo case forwarded for interpretation" by Moses Akena, Daily Monitor, 26 July 2011, http://www.monitor.co.ug/News/National/-/688334/1207812/-/bl2f2sz/-/index.html

C. AUDIOVISUAL RESOURCES

1. "Preliminary Objections and Constitutional Referral; Gulu High Court, International Crimes Division," Refugee Law Project, 25 July 2011
http://www.refugeelawproject.org/kwoyelo_trial.php
2. "Opening Criminal Session/Plea Taking; Gulu High Court, International Crimes Division," Refugee Law Project, 11 July 2011
http://www.refugeelawproject.org/kwoyelo_trial.php

II. OTHER NEWS AND OPINIONS

A. COALITION MEMBER REPORT

1. "Unfinished Business, Closing Gaps in the Selection of ICC Cases" Human Rights Watch report, Section III "Uganda", 15 September 2011
http://www.hrw.org/sites/default/files/reports/icc0911webwcover.pdf --- excerpts

"... The arrest and trial of the three LRA leaders wanted by the ICC is necessary to deliver justice for victims of LRA atrocities in northern Uganda. But the ICC is entirely dependent on states to execute its warrants. We have repeatedly urged regional governments and their international partners, including ICC states parties, the United States, and the United Nations, to help end LRA crimes by putting in place a comprehensive strategy to protect civilians and secure the arrest of its leadership.

To date, an effective strategy has yet to materialize. Until the LRA leaders sought by the ICC are arrested the legacy of the ICC in Uganda will remain in jeopardy.

But the implementation of the ICC arrest warrants is not the only factor that will determine whether or not the court will achieve the goal of delivering meaningful justice in Uganda. As we discuss in the following sections the court also needs to address head on two other accountability gaps: justice for crimes committed by Ugandan security forces and for the LRA's new generation of victims in DRC, CAR, and South Sudan. In light of the serious perception problems that have been created in Uganda by the absence of charges against government forces, as we explain below, the prosecutor should now make filling these gaps a priority.

Investigation of Ugandan Forces In their counterinsurgency campaigns against the LRA, soldiers of the Uganda Peoples' Defence Forces (UDPF) committed serious human rights violations. While these violations may have been on a considerably lesser scale than those perpetrated by the LRA, government forces carried out deliberate killings, routine beatings, rapes, and prolonged arbitrary detentions of civilians.

... The brutality of the LRA's attacks notwithstanding, in light of abuses by government personnel and a failure of the government to protect its citizens in the north, it is not surprising that Uganda's referral to the ICC of the situation in 2003 struck many as nothing more than a ploy to strengthen its hand in a rebellion it had been unable to end over nearly two decades.

... The prosecutor has made some efforts to combat these damaging perceptions, but these efforts have not been sufficient.

... When arrest warrants were issued for the LRA leaders, the prosecutor stressed the impartiality of his investigation and indicated that the collection of information on allegations against all groups continued. The court's outreach team has worked inside Uganda to correct inaccurate reports in the national media that, for example, the ICC's investigations have exonerated government officials.

... On occasion-although not in recent years-the prosecutor has also indicated more explicitly his intention to continue to explore or look into UPDF abuses.

... The lack of justice for crimes by both sides to the conflict seriously compromises perceptions of the ICC's independence and has undermined its credibility among affected communities in Uganda.

... Human Rights Watch has repeatedly urged the OTP to provide a public explanation of the status of its investigations into the actions of UPDF forces. While many aspects of investigations are confidential, it should be possible to share basic information about efforts to investigate allegations of UPDF abuses. If the OTP has reached the conclusion that crimes falling within the ICC's jurisdiction were not committed by government forces in northern Uganda, or that there are other legal justifications for not pursuing cases against government officials or forces, this should be made clear. No amount of explanation can eliminate all criticism, but if a decision not to pursue charges is seen to flow clearly from objective criteria it could help rehabilitate perceptions of the ICC's independence.

... Clarity on the ICC's plans regarding UPDF abuses could also help bring adequate pressure to bear on the national authorities to provide transparent accountability for what are well-documented human rights violations, even if they fall outside the scope of the ICC's jurisdiction. Indeed, if the OTP decides not to proceed with UPDF cases, but collects evidence of crimes that could be prosecuted domestically, it should consider sharing that information with the ICD or other relevant national authorities. While this should be subject to important safeguards, including ensuring the safety of witnesses, and should extend to defense counsel, it could provide an important stimulus for national proceedings.

...The LRA has committed crimes beyond the borders of northern Uganda. ... In 2005 and 2006, renewed Ugandan military campaigns compelled the LRA to relocate its forces from Uganda and southern Sudan to the remote region of the Garamba National Park in northeastern Congo. The LRA has since become a regional threat operating in the remote border areas between South Sudan, DRC, and CAR.

... Civil society groups in LRA-affected areas in Congo and victims of LRA crimes have expressed a strong desire to see LRA commanders brought to account. So far these demands have largely gone unanswered.

The ICC prosecutor should investigate these recent crimes with a view to expanding the charges for those LRA leaders already subject to ICC arrest warrants and to bringing charges against additional commanders, evidence permitting. ...

While there may be some national options through the Congolese or Ugandan courts to bring prosecutions against LRA commanders, there are serious capacity limits in both jurisdictions. The ICC is uniquely positioned to provide accountability for crimes crossing international borders, and to ensure that a new generation of LRA victims have access to justice. ..."

B. OTHER NEWS AND OPINIONS

1. "Victims Call for Justice in Northern Uganda," IJCentral, 17 July 2011, http://ijcentral.org/video/northern_uganda/ (video)
2. "IJCentral's Most Wanted: #2 Joseph Kony" by Aneil Sharma, International Justice Central, 22 September 2011, http://ijcentral.org/blog/ijcentrals_most_wanted_2_joseph_kony/
3. "Self-Referrals and Lack of Transparency at the ICC - The Case of Northern Uganda" by Patrick Wegner, Justice in Conflict, 4 October 2011, http://justiceinconflict.org/2011/10/04/self-referrals-and-lack-of-transparency-at-the-icc-–-the-case-of-northern-uganda/
4. "Uganda LRA rebel tracking technology unveiled," By Martin Plaut, BBC News, 4 October 2011, http://www.bbc.co.uk/news/world-africa-15173291
5. "Uganda's LRA rebel chief likely in Central Africa: US" AFP, 5 October 2011,
http://www.google.com/hostednews/afp/article/ALeqM5hYaDQOZKFNPYT7GXKXNy0Y8VZOqg?docId=CNG.0d7475ce7de608317f0ef718cc8c43a2.a41
6. "Analysis: Should child soldiers be prosecuted for their crimes?," IRIN, 6 October 2011. http://www.irinnews.org/report.aspx?reportid=93900
7. "Give LRA victims justice, says ex-bishop" by Sam Lawino, Daily Monitor, 20 July 2011, http://www.monitor.co.ug/News/National/-/688334/1204356/-/bl4ltxz/-/index.html

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CICC's policy on the referral and prosecution of situations before the ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicated to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts. Communications to the ICC can be sent to: ICC P.O. box 19519 2500 CM the Hague, the Netherlands