By Penny Mbabazi Atuhaire 

 

One of the stories that dominated the media in the recent past is the trial of Thomas Kwoyelo, a former commander in the Lord’s Resistance Army (LRA). Kwoyelo was abducted by the LRA in 1987 at the age of 13 while on his way to Pabbo Primary School. He remained in captivity and later became one of the commanders in the LRA force until December 2008 when he was captured by the Uganda People’s Defence Forces (UPDF).

While in detention, on January 12, 2010, Kwoyelo made a declaration before the officer in charge of the Upper Prison Luzira, renouncing rebellion and seeking amnesty under the Amnesty Act that came into force in 2000. The declaration was forwarded to the Amnesty Commission, and later to the Director of Public Prosecutions (DPP) as the Commission considered Kwoyelo as one who qualified to benefit from the amnesty process.

 

As of now, Kwoyelo is still in prison battling more than 53 charges of murder, willful killing, kidnap with intent to kill, aggravated robbery and destruction of property resulting from the war in northern Uganda.

 

On the September 22, 2011, the Constitutional Court ruled that by denying him amnesty, the Amnesty Commission and DPP did not accord him equal treatment under the Amnesty Act and declared that their acts were inconsistent with Article 21(1) (2) of the Constitution and thus null and void. Despite this ruling, the DPP has continued to disregard its outcome even when other LRA combatants like Brig. Kenneth Banya, Sam Kolo and over 26,000 others were granted amnesty under similar circumstances.

Kwoyelo’s case is one that has raised more questions than answers and in many aspects, left many legal scholars battling with issues of how accurately one can draw a line between the powers of the Judiciary and government. Many legal scholars, professionals and members of Ugandan civil society have continued to argue that Kwoyelo’s detention is unjustifiable and gives a whole lot of reasons to doubt the rule of law in Uganda.

 

I personally could not agree less. Because in any democratic country, the prosecution is not the institution that should get to decide about issues of accountability, the Judiciary does that. Issues of war crimes and crimes against humanity should be decided by the Judiciary on the basis of laws with no interference from any institution that doesn’t have a legitimate stake in the process.

 

Unfortunately, the DPP has greatly assumed this role and in the process thrown himself into an entangled cobweb. His actions continue to affirm that the DPP is inclined towards more accountability and less amnesty for the future.

 

The very first mistake was made when the DPP denied to grant Kwoyelo amnesty at the time he renounced rebellion and instead opted to try him as an individual for crimes that were committed by the LRA forces under his command. In my view, other factors should have been considered before any decisions by the DPP, after all the Constitutional Court had ruled on this matter.

 

The government had a duty to protect Kwoyelo as a child from the LRA abduction and provide him an atmosphere that other Uganda children enjoy when growing up. Given that Kwoyelo was abducted at the age 13 when going to school, there is no doubt that it’s the LRA system that shaped him into the ‘criminal’ he is today. And it is only unfortunate that the government is turning against him by using its failure to offer him protection when he was a child and instead choose to prosecute him for crimes he would not have otherwise committed if government had played its role.

 

Many children in northern Uganda have found themselves in such unfortunate circumstances that are far beyond their control and are forced by institutions to shoulder the entire blame for their actions.

 

I’m not a psychologist and so I cannot start to imagine what happens to the mind of a child when he is abducted and indoctrinated into a rebel group; but what I’m aware of is that all children need protection from families, communities and, above all, our governments. Kwoyelo was a child like any other and deserved similar protection. As of now, government should focus more on the bigger pursuit of peace and reconciliation.

 

Ms Mbabazi Atuhaire is an associate researcher, Foundation for Human Rights Initiative (FHRI). This email address is being protected from spambots. You need JavaScript enabled to view it.