Tuesday, December 31, 2013

Uganda: "The problem always seems to be, we're picking up the pieces on the ricochet."

New Vision ( Uganda ) reports

                                                         Thomas Kwoyelo when he was still with the LRA (Monitor)
Kwoyelo pleads for clemency
FORMER Lord’s Resistance Army (LRA) rebel commander, Thomas Kwoyelo, has appealed to President Yoweri Museveni for pardon over atrocities he committed against the people of northern Uganda.

My gut feeling is no way, this guy needs to pay and pay big time. Human Rights Watch reported at his capture and arrest.

" In August 2010, Kwoyelo was charged with violations of Uganda's 1964 Geneva Conventions Act, including the grave breaches of willful killing, taking hostages, and extensive destruction of property in the Amuru and Gulu districts of northern Uganda."

Lets remember that these are only crimes committed in Uganda.  Kwoyelo was apprehended in the DR Congo and has committed crimes there as well. But then we have this from of all places The New Yorker. 

".... Thomas Kwoyelo is intimately acquainted with him. Kony once tied Kwoyelo to a tree, and, in a near-incoherent rant, accused him of betrayal and threatened to kill him. That was in 2007. The L.R.A. had murdered Kwoyelo’s father, kidnapped him as a young boy, and then indoctrinated him into the ranks of the rebel group by forcing him to kill friends and relatives." 

That is about as good as it gets with regard to mitigation.

Kwoyelo, currently remanded at Luzira Maximum Security Prison, was charged with 53 counts of crimes against humanity in connection with the over two-decade bloody war that claimed thousands of lives as well as loss of property in the region.

I don't think Kwoyelo is eligible to be considered for amnesty, again from Human Rights Watch. 

" Amnesties for crimes such as war crimes and crimes against humanity run counter to international law and practice, which rejects impunity for the gravest crimes. International and hybrid international-national war crimes courts outside Uganda have rejected amnesties for serious crimes."

But and it is a big " but ".

" Some critics of the International Crimes Division have claimed that the fact that Kwoyelo has not been granted amnesty and is to be prosecuted is politically motivated, given that so many other LRA commanders have benefited from the domestic amnesty. For example, the former LRA high-ranking commanders Brigadier Kenneth Banya and Brigadier Sam Kolo Otto, as well as Lt Col. Opio Makasi, who served as the LRA director of operations, have all received amnesty under the act over the last several years. Several other LRA members who applied for amnesty were not prosecuted and instead joined the Ugandan army to fight the LRA."

There is also another big " but " hanging over Kwoyelo. Again from The New Yorker.

" As they had with thousands of other seized L.R.A. fighters and defectors, the Ugandan army offered Kwoyelo a seemingly fair bargain: give them information on the L.R.A.’s whereabouts and strategy, and receive amnesty in return. But Kwoyelo, who was in a shell-shocked stupor, refused to coöperate, and only applied for amnesty six months later, after being persuaded by his family. By then it was too late."

It is an exercise in swings and roundabouts, but at some point I think the concept Natural Justice must become a factor. The celebrated English jurist Lord Denning put it thus; 
"Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased'." 
I admit I may be extending the Natural Justice concept to breaking point but expecting people to make rational decisions when they are in Kwoyelo's situation is unrealistic. Shell shock is a condition that was recognised first in WWI.

" Shell shock is the reaction of some soldiers in World War I to the trauma of battle. It is a reaction to the intensity of the bombardment and fighting that produced a helplessness appearing variously as panic and being scared, or flight, an inability to reason, sleep, walk or talk. "Simply put, after even the most obedient soldier had enough shells rain down on him, without any means of fighting back, he often lost all self control."

Right-minded people might well reasonably conclude there is not a lot of fairness happening in this case.

In a recent interview with New Vision, Kwoyelo said: “Having undergone various rehabilitation programmes, I have realised my past mistakes like any other Ugandan who erred. I pray that the President gives me a second chance in life.”

Sometimes, not very often, I really feel for Museveni and this is one of those times. That Kwoyelo is not facing a hangman's noose might well be considered as getting a second chance. According to Human Rights Watch the penalties he faces are:

" The maximum penalty under Uganda's Geneva Conventions Act for the grave breaches of willful killing is life imprisonment. The maximum penalty for the other crimes is 14 years in prison. The trial will be the first for war crimes under the Geneva Conventions Act since it was passed in 1964." 

Kwoyelo, who is currently on a peace making and reconciliation programme, said he has benefited from the course and pledged to practice what he has learnt because it calls for reconciliation with God and the society he wronged.

“I am willing to work with the Government at all cost. Once considered for clemency, I swear never to go back to rebel activities,” he said.

Kwoyelo has been to hell and back and this report indicates he has acknowledged the wrong he has done, that must be a factor in his favour. Then we have the bigger picture. What is Uganda trying as a nation to achieve with its amnesty laws. Matthew Kane in The Jurist argues:

" Kwoyelo has been accused of horrific crimes, yet many similarly situated were granted amnesty based on a policy that is favorably viewed by a majority of Ugandan citizens and which has helped bring the conflict in northern Uganda to an end. While Coomaraswamy argues that prosecution would "send a strong message to the LRA leadership that they will be held accountable for their actions," such a message could clearly lead to the continuation and extension of hostilities. Similar concerns arise regarding the ICC's potential intervention, with some Ugandans suggesting that the ICC is the reason that a complete resolution has not come to fruition. Indeed, Kwoyelo's year-long incommunicado detention and continued indefinite confinement, now approaching the four-year mark, would seemingly discourage rebels from surrendering to authorities. "

Kwoyelo is not Kony. He is a victim of Kony. Given that Uganda has fools such as  Lango Paramount Chief, Yosam Odur who seems to think Kony is worthy of rehabilitation not to mention neighbours such as Central African Republic president Michel Djotodia who seem to be prepared to feed him Kwoyelo would seem to be fairly hard done by.

On January 25, 2011, Kwoyelo appeared before the High Court in Kampala, which ordered the Amnesty Commission and the Director of Public Prosecution (DPP) to grant him a certificate of amnesty and release him.

The state, however, argued that the DPP could not recommend the issuance of a certificate of amnesty because Kwoyelo had other grave crimes such as rape and murder.

The court said the alleged crimes forwarded by the DPP could have been committed when Kwoyelo was a rebel and, therefore, he could not be denied amnesty basing on such crimes.

It is a mess. I would grant him amnesty. 

Helen Mayelle who works with many L.R.A. returnees stated The New Yorker “The real war will be recovering from this whole war,” . Kwoyelo has suffered enough it is time to focus on the real bastard behind all this Joseph Kony and for him there can be no forgiveness.  In September I blogged

" I am sure that the Ugandan army will stop looking for Kony on the day they kill him and that day can't come soon enough."

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