Amnesty law – Uganda
I. CONTEXT
In 2000, the Ugandan Parliament passed a bill offering amnesty to rebel fighters in an attempt to end
insurgencies in the north and west of the country. 1 Northern rebels of the Lords Resistance Army
(LRA) have been fighting Museveni's government since it came to power in 1986. In the mountains of
western Uganda, the Allied Democratic Forces (ADF) frequently launch attacks on civilian targets in
an effort to undermine the government which they say rigged elections in 1996.
The legislation was initially in force for six months, but the Act contained a provision for extension.
According to the Section 2 of the Amnesty Act,
“ An amnesty was declared in respect of any Ugandan who at any time since the 26th day of
January, 1986, engaged in or was engaging in war or armed rebellion against the
Government of the Republic of Uganda by—actual participation in combat; collaborating with
the perpetrators of the war or armed rebellion; committing any other crime in the furtherance
of the war or armed rebellion; or assisting or aiding the conduct or prosecution of the war or
armed rebellion [and who renounces and abandons war.]”
The rebels had to claim the amnesty by giving themselves up and handing in weapons. This meant
that persons granted amnesty through the issuance of amnesty certificates, would not be subjected to
prosecution or any form of punishment for the participation in the war or rebellion.
Since its enactment, 13,000 former LRA combatants have been pardoned to date, according to the
records with the Amnesty Commission.2 According to UN organs, while the Amnesty Act made an
important contribution to facilitating peace, it could not continue unchanged as it was affecting the
implementation of meaningful justice for victims by undermining accountability mechanisms for
international crimes, impacting on ongoing criminal justice processes and condoning impunity for
sexual and gender based crimes.
II. CONFORMITY WITH INTERNATIONAL LAW3
Amnesties are permissible under international law but within certain limits established by
international human rights and humanitarian law. Uganda is party to the Genocide Convention as
well as the four Geneva Conventions and its additional Protocols. It has ratified all of the core
international human rights treaties, with the exception of the International Convention on the
Protection of all Persons from Enforced Disappearances, as well as other significant treaties like the
Optional Protocol to the Convention on the Rights of the Child (CRC) on the use of Children in Armed
Conflict (OPCRC-II). Uganda ratified the ICC Rome Statute in 2002 and has also supported and
signed important international instruments including the Paris Principles and Commitments of 2007 on
the role of children in armed forces or groups. Uganda has also ratified important regional treaties that
impose certain human rights obligations such as the constitutive acts of the African Union and the
East African Community, the International Great Lakes Conference Protocols and most significantly
the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and
People’s Rights on the Rights of Women in Africa (the Maputo Protocol) and the African Charter on
the Rights and Welfare of the Child and its corresponding protocol.
1BBC
News,
Uganda
offers
amnesty
to
rebels,
7
December
1999,
http://news.bbc.co.uk/1/hi/world/africa/554780.stm
2 All Africa – Anne Mugisa, “Uganda: No More Amnesty for LRA Rebels As Law Expires”, 29 May
2012, http://allafrica.com/stories/201205300065.html
3 UN Office of the High Commissioner for Human Rights, “UN Position on Uganda’s Amnesty Act 2000,
Submission to the Hon. Minister of Internal Affairs”, May 2012, available at:
http://jlos.go.ug/uploads/UN%20Position%20on%20Uganda%20Amnesty%20Law%20.pdf
1
All the aforementioned instruments impose a series of obligations on the State of Uganda with
regard to protecting human rights and instituting measures to ensure accountability for conflict related
crimes experienced by women that impact on the award of amnesty. In particular, these obligations
include the following:
(i)
to investigate and prosecute international crimes such as genocide, war crimes,
crimes against humanity and gross violations of human rights which include torture and
similar cruel, inhuman or degrading treatment; extrajudicial, summary or arbitrary
executions, slavery and enforced disappearance, and gender-specific violations such as
rape.
(ii)
to specifically protect women and children against impunity for sexual violence and to
investigate and prosecute and punish perpetrators of sexual and gender-based violence.
(iii)
to provide adequate and effective remedies to victims of such crimes, including
reparation
(iv)
to ensure the victim’s inalienable right to know the truth about gross human rights
violations and serious violations of humanitarian law.
Taking into account the various treaties and customary law obligations mentioned above, the
Amnesty Act as was standing in violation of the State’s international obligations under human
rights and humanitarian law.
1. Firstly, the Amnesty Act contravened international law because in practice it established a blanket
amnesty barring from prosecution persons who could be responsible for war crimes, crimes
against humanity and gross violations of human rights. Indeed, the Act guaranteed that reporters
“shall not be prosecuted or subjected to any form of punishment for the participation in the war or
rebellion for any crime committed in the cause of the war or armed rebellion.”4 This wording was
interpreted to cover any crimes that are related to the armed conflict, including serious violations of
human rights and humanitarian law.
In 2006, the Amnesty Act was amended in an attempt to address some of the inconsistencies
between the Act and the country’s international obligations, notably those arising from Uganda’s
ratification of the Rome Statute (June 2002). However, the 2006 amendment did not make reference
to criteria by which individuals may be considered to be ineligible for amnesty, nor did it make the
designation of ineligibility of amnesty a requirement by law.
Before the lapse of part of the Amnesty Act in 2012, there were still four pending ICC arrest warrants
against top LRA commanders. If any of the four indicted LRA members were captured, it would have
been very difficult for the Government of Uganda to call on the principle of complementarity to try
these persons in Uganda. Indeed, the Amnesty Act would have effectively prevent the Government
from pursuing prosecution and this could have been interpreted as a sign of the State’s inability or
unwillingness to prosecute such crimes and therefore justify the ICC to take over.
2. Second, the Act interfered with victim’s right to an effective remedy. Since the Act stipulated
that no form of punishment could be imposed by the State against reporters, this could have
prevented victims from seeking a civil remedy for the violations they have suffered. This was in clear
violation of the ICCPR as well the Uganda Constitution on the right to effective remedy. This issue
was particularly grave when considering the situation of formerly abducted girls who were forced into
marriages and had children while in captivity. Their victimization did not end with the granting of
amnesty. Worse still, the amnesty process itself permitted the original crime to be perpetuated, as
“forced wives” saw their only alternative to survival was to maintain their relations with their
commander/bush husbands where domestic andsexual violence could continue without accountability
for these crimes. Alternatively, women had to weigh the burden of providing for their children whilst
former “bush” husbands are not.
3. Thirdly, the Act compromised the victim’s right to truth since it did not impose any requirement
on the reporters for full disclosure on their participation in the conflict (cf. conditional amnesties).
The application for amnesty, in effect, only required that the reporter give a broad indication as to
which rebel group he or she participated in and what types of activities the person was involved in
(direct combat, collaboration, etc). For children, reception centres staff used to fill out the amnesty
forms.
4
Amnesty Act, Section 3.
2
Additionally, because the amnesty process was linked to demobilisation and reintegration, a
number of returnees, in particular former abductees and forced wives, were not be willing to go
through the amnesty process to obtain amnesty certificates and were therefore excluded from
demobilisation and reintegration programmes. For example, many abducted women played support
rather than combat roles and are unwilling to accept implied responsibility for participation in armed
rebellion associated with receiving an amnesty certificate. This also pointed to a disproportionate
focus on former combatants without sufficient regard to the needs of their victims. This ultimately
affected community reconciliation in the broader transitional justice context.
Because of its illegality, the blanket amnesty granted under the Amnesty Act was not internationally
binding and could not bar prosecution of individuals implicated for such crimes in foreign jurisdictions
acting under the principle of universal jurisdiction.
III. END OF THE 2000 AMNESTY ACT
On May 23, 2012, the Minister of Internal Affairs Hillary Onek:
1. Declared the Lapse of operation of Part II of the Amnesty Act, by virtue of section 16(3) of
the Amnesty Act (as amended in 2006) which provides that; “The Minister may by statutory
instrument, declare the lapse of the operation of Part II of this Act”.
2. Extended the expiry period of Part I, III, and IV of the Amnesty Act (sections that deal
with the settling and integration of former rebels) for a period of 12 months by virtue of
Section 16(2) of the Act. The Amnesty Commission will thus continue its reintegration
activities with reporters for one additional year.5
The statutory instruments were subsequently signed, and gazetted on June 1, 2012. On 20 July 2012,
the Internal Affairs Minister Hillary Onek clarified that:
"On May 23, 2012, through statutory instrument 34 of 2012, Part II of the Amnesty Act
expired. The implication of this is that the Amnesty Commission will no longer issue amnesty
certificates to individuals who return from rebellion seeking amnesty for crimes committed
during war or rebellion against the Government of Uganda."6
The government says the measure is meant to target 'high ranking' militants of the Lord's Resistance
Army (LRA) and to allow the pursuit of justice against perpetrators of war crimes and crimes against
humanity. Critics fear that it will also discourage lower ranking rebels from laying down their
weapons.7
What are the implications of the Declaration of Lapse of Part II of the Act?
By declaration of the Lapse of Part II of this Act, Amnesty in Uganda has ceased. Hence it is
nonexistent. From the 25th May 2012 (day on which the Act took effect), any person engaging in war
or armed rebellion against the Government of Uganda, shall if investigated be prosecuted and
punished for such crime if found guilty.
What is the implication for those already issued Amnesty Certificates?
Those already issued amnesty certificates are still protected by the law. According to Article 28(5)(f)
of the Constitution of the Republic of Uganda; “ no person shall be tried for a criminal offence if the
person shows that he or she has been pardoned in respect of that offence”. Therefore, they will not be
Justice, Law and Order Sector, “The Status of Amnesty in Uganda (Part 2)”, 11 June 2012,
http://www.jlos.go.ug/page.php?p=curnews&id=89
6 All Africa – Hillary Nsambu, “Uganda: 'Amnesty Law Stopped Operating Last May'”, 20 July 2012,
http://allafrica.com/stories/201207201189.html
7
All
Africa,
“Uganda:
Amnesty
Act
Without
Amnesty”,
3
June
2012,
http://allafrica.com/stories/201206040501.html
5
3
prosecuted for crimes for which they have already received amnesty/pardon. They should continue
reporting to the Amnesty Commission so that they are reintegrated, resettled and reconciled with their
communities.
What is the Future of the Amnesty Commission?
Part I, III and IV of the Amnesty Act were extended for a period of 12 months. Part III of the Act,
establishes the Amnesty commission, a demobilization and resettlement team, and elaborates its
functions among other provisions.
Extension of Part III means that the Amnesty Commission will continue resettling, demobilizing and
reintegrating those reporters/persons who have already received amnesty during the one year
extension period. However, it will not be able to legally issue new Amnesty certificates.
Part IV of the Act provides for the duration of the Act and prescribes for regulations for the
resettlement of persons and generally for better carrying out the provisions and principles of the Act. 8
IV. PARTICULAR CASES
A. Joseph Kony
The expiration of the Amnesty Act seems to put an end to discussions over whether LRA leader
Joseph Kony could be pardoned if he is ever caught. Indeed, few legal observers had stated that
Kony, and four of his top commanders, could have been eligible for amnesty, despite being wanted by
the International Criminal Court (ICC).9
B. Thomas Kwoyello
The end of the amnesty potentially complicates the case of Thomas Kwoyelo, a mid-ranking LRA
commander who was captured by Ugandan forces in 2009. Kwoyelo was accused of commanding
rebels who murdered civilians in various northern Uganda locations. While in detention, Kwoyelo
renounced rebellion and sought amnesty. His amnesty request has not been granted. 10 Despite
recent rulings from both Uganda's High Court and its Constitutional Court that he was entitled to
amnesty, Kwoyelo remained in Luzira prison as the Porecutor refused to grant him amnesty as he
faces charges of international crimes.11 The case is now before the Supreme Court.
With the lapse of the amnesty Commission's mandate to issue Amnesty certificates, the fate of
Kwoyello hangs in the balance. If the Supreme Court overturns the Constitutional Court ruling, he
would have to be tried over his involvement in the war crimes. But even if the Supreme Court rules in
favor of Kwoyelo, it is unclear if the Amnesty Commission will be allowed to issue the necessary
certificate now that the Amnesty Act has been stripped of its amnesty. 12
C. Caesar Achellam
Justice, Law and Order Sector, “The Status of Amnesty in Uganda (Part 2)”, 11 June 2012,
http://www.jlos.go.ug/page.php?p=curnews&id=89
9
All
Africa,
“Uganda:
Amnesty
Act
Without
Amnesty”,
3
June
2012,
http://allafrica.com/stories/201206040501.html
10
All Africa, “Uganda: Amnesty or Prosecution for War Criminals?”, 17 May 2012,
http://allafrica.com/stories/201205170721.html
11 Maaike van Breevoort, “ Dealing with amnesty in Northern Uganda”, 18 May 2012,
http://www.rnw.nl/international-justice/article/dealing-amnesty-northern-uganda
12 All Africa – Anne Mugisa, “Uganda: No More Amnesty for LRA Rebels As Law Expires”, 29 May
2012, http://allafrica.com/stories/201205300065.html
8
4
The expiry also cancels chances for Ceaser Acellam, the fourth highest-ranking member of the Lord’s
Resistance Army (LRA), who has been captured by the Ugandan army in May but had not yet applied
for Amnesty by the expiry of the Act.13
All Africa – Anne Mugisa, “Uganda: No More Amnesty for LRA Rebels As Law Expires”, 29 May
2012, http://allafrica.com/stories/201205300065.html
13
5
Annexe – The Amnesty Act 2000
Source:
https://coursewebs.law.columbia.edu/coursewebs/cw_11F_L9165_001.nsf/0f66a77852c3921f852571
c100169cb9/5F98D7AFFA0C5C1B85257922001A3350/$FILE/Ugandan+Amnesty+Act+2000.doc
( ! The Act has been amended in 2006)
THE AMNESTY ACT, 2000
ARRANGEMENT OF SECTIONS
Part I – Preliminary
1. Short title.
2. Interpretation.
Part II – Declaration of Amnesty, etc.
3. Declaration of amnesty.
4. Grant of amnesty.
5. Reporter to be handed over to Chief Administrative Officer.
6. Chief Administrative officer to hand over Reporter to DRT.
Part III – Amnesty Commission
7. Amnesty Commission.
8. Members of the Commission.
9. Functions of the Commission.
10. Secretary and other staff of the Commission.
11. Establishment of the DRT.
12. Composition of the DRT.
13. Functions of the DRT.
14. DRT to carry out functions in accordance with Regulations.
15. Salaries and emoluments of the Commission and the DRT.
16. Funds and expenses of the Commission and the DRT.
Part IV – General
17. Duration.
18. Regulations.
THE AMNESTY ACT, 2000
An Act to provide for an Amnesty for Ugandans involved in acts of a war-like nature in various parts of
the country and for other connected purposes.
WHEREAS it is common knowledge that hostilities directed at the Government of Uganda continue to
persist in some parts of the country, thereby causing unnecessary suffering to the people of those
areas;
AND WHEREAS it is the expressed desire of the people of Uganda to end armed hostilities, reconcile
with those who have caused suffering and rebuild their communities;
AND WHEREAS it is the desire and determination of the Government to genuinely implement its
policy of reconciliation in order to establish peace, security and tranquillity throughout the whole
country:
NOW THEREFORE, be it enacted by Parliament as follows –
PART I - PRELIMINARY
6
1. This Act may be cited as the Amnesty Act, 2000.
2. In this Act, unless the context otherwise requires –
“Amnesty” means a pardon, forgiveness, exemption or discharge from criminal prosecution or any
other form of punishment by the State;
“Commission” means the Amnesty Commission established under Part II of this Act;
“DRT” means the Demobilization and Resettlement Team;
“Minister” means the Minister responsible for internal affairs;
“Reporter” means a person seeking to be granted Amnesty under this Act.
PART II – DECLARATION OF AMNESTY, ETC.
3. (1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26 th day of
January, 1986 engaged in or is engaging in war or armed rebellion against the government of
the Republic of Uganda by –
(a) actual participation in combat;
(b) collaborating with the perpetrators of the war or armed rebellion;
(c) committing any other crime in the furtherance of the war or armed rebellion; or
(d) assisting or aiding the conduct or prosecution of the war or armed rebellion.
(2) A person referred to under subsection (1) shall not be prosecuted or subjected to any form of
punishment for the participation in the war or rebellion for any crime committed in the cause
of the war or armed rebellion.
4. (1) A reporter shall be taken to be granted the amnesty declared under section 3 if the reporter –
(a) reports to the nearest Army or Police Unit, a Chief, a member of the Executive Committee
of a local government unit, a magistrate or a religious leader within the locality;
(b) renounces and abandons involvement in the war or armed rebellion;
(c) surrenders at any such place or to any such authority or person any weapons in his or
her possession; and
(d) is issued with a Certificate of Amnesty as shall be prescribed in regulations to be made
by the Minister.
(2) Where a reporter is a person charged with or is under lawful detention in relation to any
offence mentioned in section 3 of this Act, the reporter shall also be deemed to be granted
the amnesty if the reporter –
(a) declares to a prison officer or to a Judge or Magistrate before whom he or she is being
tried that he or she has renounced the activity referred to in Section 3 of this Act; and
(b) declared his or her intention to apply for the amnesty under this Act.
(3) A reporter to whom subsection (2) applies shall not be released from custody until the
Director of Public Prosecutions has certified that he or she is satisfied that –
(a) the person falls within the provisions of section 3 of this Act; and
(b) he or she is not charged or detained to be prosecuted for any offence not falling under
section 3 of this Act.
(4) Subject to subsection (3), the Director of Public Prosecutions shall investigate the cases of all
persons charged with or held in custody for criminal offences and shall take steps to cause to
be released all persons involved in such cases who qualify for grant of amnesty under this
Act, if those persons renounce all activity mentioned in section 3, in which they have been
involved.
(5) Persons to whom section 3 applies and who are living outside Uganda shall be deemed to
have been granted the amnesty if –
(a) they renounce all activities described in section 3; and
(b) report to any Ugandan diplomatic mission, consulate or any international organisation
which has agreed with the Government of Uganda to receive such persons.
(6) A reporter who has complied with any of the provisions of subsections (1), (2), (3), (4) and (5)
applicable to him or her shall be granted a certificate to be specified by regulations as
evidence of the grant of the Amnesty.
7
5. An official or authority specified in section 4 of this Act who receives a reporter under section 4
shall hand over the reporter and weapons, if any, to the Sub-county Chief of the area.
6. The Sub-county Chief on receiving a reporter seeking amnesty, shall hand over that reporter to
the Demobilization and Resettlement Team established under section 11.
PART III – AMNESTY COMMISSION
7. An Amnesty Commission is hereby established.
8. The Amnesty Commission shall be composed of the following persons appointed by the President
with the approval of Parliament –
(a) a Chairperson who shall be a judge of the High Court or a person qualified to be a judge of
the High Court; and
(b) six other members who shall be persons of high moral integrity.
9. The Commission shall have the following functions –
(a) to monitor programmes of –
(i)
demobilization;
(ii)
reintegration; and
(iii)
resettlement of reporters;
(b) to co-ordinate a programme of sensitization of the general public on the amnesty law;
(c) to consider and promote appropriate reconciliation mechanisms in the affected areas;
(d) to promote dialogue and reconciliation within the spirit of this Act;
(e) to perform any other function that is associated or connected with the execution of the
functions stipulated in this Act.
10. (1) The Commission shall have a Secretary who shall be a public officer appointed by the
Commission acting in consultation with the Public Service Commission, upon such terms and
conditions as may be determined by the Commission in consultation with the Public Service
Commission and specified in his or her instrument of appointment.
(2) The Secretary shall be a person of high moral character and proven integrity, possessing the
relevant qualifications and proven ability in the field of public administration.
(3) The Secretary shall perform such functions as may be assigned to him or her by the
Commission.
(4) The Secretary may be removed by the Commission only for –
(a) inability to perform the functions of his or her office arising out of physical or mental
incapacity;
(b) misbehaviour or misconduct; or
(c) incompetence.
(5) The Commission shall also have such other officers and employees as may be necessary for
the discharge of its functions.
(6) The officers and employees referred to in subsection (5) shall be appointed by the
Commission acting in consultation with the Public Service Commission, and shall hold office
upon such terms and conditions as shall be determined by the Commission in consultation
with the Public Service Commission.
11. A Demobilization and Resettlement Team is hereby established.
12. The DRT shall be composed of not more than seven members to be appointed by the President
with the approval of the Sectoral Committee on Defence and Internal Security of Parliament.
13. The functions of the DRT shall be to draw programmes for –
(a) de-commissioning of arms;
(b) demobilization;
(c) re-settlement; and
(d) reintegration of reporters.
8
14. (1) Subject to this Act, the DRT shall carry out its functions in accordance with Regulations made
by the Minister.
(2) The DRT shall, in its day to day functions, be under the direct supervision of the Commission.
15. The Minister in consultation with the Minister responsible for finance shall determine the salaries
and emoluments of the members of the Commission and the DRT which shall be charged on the
Consolidated Fund.
16. All monies required to defray all expenses that may be incurred in the discharge of the functions
of the Commission or the DRT in the carrying out of the purposes of this Act are charged on the
Consolidated Fund.
Part IV – GENERAL
17. This Act will remain in force for a period not exceeding six months and on expiry, the Minister may
be statutory instrument extend that period.
18. The Minister may make regulations for the settlement of persons under this Act and generally for
the better carrying out of the provisions and principles of this Act.
9