Global Studies Review

BY STEPHEN A. LAMONY

Over the past two decades, Uganda has witnessed an increasing number of fundamental discussions on accountability for mass human rights atrocities at the local and national level. Interestingly, however, there has never been any local form of criminal prosecutions for grave human rights violations. To explain this reality, one has to look at traditional justice systems, which are based on standard practices of an individual community—handed down from generation to generation. Prosecutions, on the contrary, rely on universally agreed minimum standards recognized by states. They avail a fair opportunity for both parties to present their case, respect for the rights of the accused, a free and fair trial, and independence of the judicial officials. This paper seeks to summarize the role of criminal prosecutions in local, national, regional and international institutions vis-à-vis the ongoing debate on reconciliation vs. prosecution as the guarantee of sustainable peace in Uganda.

Despite the differences between the reconciliation and prosecution schools, there is a consensus in Uganda about the need of some form of accountability for grave human rights abuses¹, although timing, concepts and procedures remain disputed.² Would it be through Truth and Reconciliation Commissions (TRCs) into the country’s traumatic past?³; Amnesties?⁴; Or traditional justice mechanisms as alternatives to criminal prosecutions?⁵ The idea of a Special Division of the Ugandan high court for perpetrators of massive crimes in Uganda has also been put forward⁶ and three judges have been appointed to the division already.⁷

Most recently, discussions in Uganda have focused on putting in place legislation governing the existence and operation of the traditional justice mechanisms in order for traditional justice to gain some degree of legal recognition and to keep these practices operating within the law.⁸ Consequently, a recommendation was made for Uganda to favor a permissive operation of traditional justice and practices within the criminal justice system, similar to the one in Canada.⁹

Among the many developments on the possibility of prosecutions for grave human right abuses, a recommendation was made for a name change of the International Criminal Bill 2006 to the International Crimes Bill 2009.¹⁰

LOCAL LEVEL
As stated earlier, there haven’t been any criminal prosecutions for grave human rights violations at the local in Uganda. If anything, it can be argued that in the African context, accountability at the local level was administered through rituals including forms of disputes and infightings.

It has been suggested that the Acholi people of Northern Uganda always had disputes and infightings amongst each other. Some traditional rituals, aimed at offenders and victims alike, would therefore be performed to restore harmony, after human rights abuses occurred.  Importantly, however, these rituals were performed on human rights violations of a small nature and not a grave nature, as it is the case today. Currently, Legal Experts in Uganda are examining the possibility of incorporating some aspects of traditional justice into Uganda’s national laws.

NATIONAL LEVEL
In Uganda’s history, several Commissions of Inquiry have been set up to investigate crimes like killings and disappearances of persons. For several reasons, prosecutions for grave human rights violations have nonetheless been practically impossible in Uganda.

Firstly, most abuses have been state-perpetrated, while the Uganda Human Rights Commission deals with such abuses in civil manner.¹¹ Secondly, there is lack of a legal regime for such crimes as war crimes and crimes against humanity.  These crimes are not defined in the Ugandan Constitution and the 2006 International Criminal Court (ICC)/International Crimes Bill has not been enacted into domestic law. At present, there is no law that enables Ugandan institutions to prosecute war crimes and crimes against humanity, including genocide. The Geneva Convention has been domesticated under Ugandan laws but the effectiveness of this convention in addressing the full extent of the war crimes and crimes against humanity as envisaged under the ICC Statute and its enforceability is limited. The alternative would be the 1995 Ugandan Constitution whose text limits the prosecution of most war crimes and crimes against humanity committed in Uganda prior to the enactment of any ICC laws. The Ugandan Constitution does not provide for retrospective criminality under Article 28 and thus a suspect cannot be prosecuted for an action that did not constitute a crime at the time it was committed.¹² As a consequence, any crime committed prior to the passage of the current ICC Bill or future War crimes legislations would be ineligible for prosecution as a war crime, or crime against humanity. Perhaps the only option left, although limited, would be to proceed under the Geneva Convention and Protocols ratified by Uganda for war crimes committed however narrow in scope and applicability.

Thirdly, with regard to torture as a grave human rights abuse, the investigations are cumbersome and may depend on the good will of the security agencies to provided information on the perpetrators.

Fourthly, there is a lack of protection mechanisms for witnesses, victims and lawyers who would be willing to testify. While victims or witnesses who are willing to testify are under the mercy of the Ugandan police, the Ugandan police also lacks funding and thus can not provide protection to either groups, suffice it to say that if the Ugandan police cannot protect the victims or witnesses then it cannot protect the lawyer too.

After seventeen years of failing to arrest and prosecute the LRA rebels, in December 2003, the Ugandan president referred the case of Northern Uganda to the ICC. The Prosecutor of the ICC determined that there were grounds to proceed with investigations and commenced investigations into human rights abuses in Northern Uganda on July 29, 2004. The investigations in Northern Uganda initially raised a lot of expectations amongst the Acholi who were exhausted by the conflict, erroneously believing that the ICC would capture or arrest the LRA rebels.

However, when the Acholi were told that the ICC does not have an army or police force to arrest the rebels, many expressed fears that the investigations may affect the amnesty process and any future peace talks between the Ugandan Government and the rebels of the Lords Resistance Army.

Following the investigations into the situation in Northern Uganda, On 13 October 2005, the International Criminal Court (ICC) Pre-Trial Chamber II unsealed the warrants of arrest for five senior leaders of the Lord’s Resistance Army/Movement (LRA/M) (Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen) for crimes against humanity and war crimes committed in Uganda since July 2002. The LRA reacted to the arrest warrants by killing humanitarian aid workers in Northern Uganda, prompting anger against the ICC. While these warrants were yet to be executed, the Ugandan government entered peace negotiations with the LRA/M rebels. As a result Uganda’s President Yoweri Museveni, disregarding the ICC arrest warrants, announced a ‘total amnesty’ for the LRA combatants in July 2006 on the condition that the rebels renounced terrorism and accepted peace. Following the amnesty offer, an agreement on cessation of hostilities between the Ugandan government and the LRA/M was concluded with effect from 29 August 2006 and in the summer of 2007 an agreement on accountability and reconciliation was signed between the LRA rebels and the Ugandan government. The agreement provided for the creation of a Special Division of the Ugandan High Court to formally deal with persons accused of grave human rights crimes and informally deal with the rest of the returnees.

In 2008, the Ugandan Government has appointed three judges to the special division of the high court.¹³ However, there is no enabling law to prosecute these grave human rights violations under this arrangement.

It was expected that the LRA rebels would sign the comprehensive peace agreement in 2008. Instead, the LRA rebels wanted clarifications on the specificities on the protocol of accountability and reconciliation as well as the disarmament, demobilization and re-integration agreements.¹⁴

Following the failure to sign the Comprehensive Peace agreement, the governments of Uganda, Southern Sudan and the Democratic Republic of Congo, with military assistance from the USA, launched attacks on the LRA hideouts in Garamba. The consequences of this operation have yet to be fully evaluated.

In March 2009, the Ugandan Government, the Justice, Law and Order Sector Transitional Justice Working Group, and Canada’s Stabilization and Reconstruction Taskforce exchanged country experiences on the potential integration of traditional justice practices in the formal criminal justice system. Discussing the restorative justice system in Canada,  two Canadian government experts various insights including:

• Best practices,

• Lessons learned,

• Case studies on traditional systems tribal justice,

• Aboriginal healing and restorative practices,

• Healing and incarceration- correctional and post-correctional interventions, and finally,

• The TRC on the Indian Residential School System in Canada.

In the aftermath of the meeting, the Uganda Law Reform Commission pointed out that the Uganda transitional justice context is different from the situation in Canada. Notwithstanding, several elements and best practices of the Canadian integrated criminal law system could be adapted to Uganda.

There was consensus that Ugandan laws should provide for the perpetrators acknowledgement of harm visited on victims, which would open the way to reconciliation and healing.

It was suggested in order to dispel the fear about traditional justice; the Ugandan government should bolster awareness amongst the public.

INTERNATIONAL LEVEL
In the absence of the arrest of LRA leader and other commanders—and against the background that Uganda was interested in prosecuting the LRA rebels within their domestic jurisdiction if a peace agreement is concluded—in October 2008, the ICC initiated proceedings under art. 19(1) to determine the admissibility of the case.

In March 2009, the Pre-Trial chamber II of the ICC stated that there was no reason for the chamber to review the positive determination of the admissibility of the case made at that stage because there was total inaction on the part of the Ugandan government.¹⁵

A prosecutor operates in a challenging world where some would like issues of politics to take precedence over issues of human rights. In this context, ICC Prosecutor Luis Moreno-Ocampo said in his 2007-Nuremberg speech:

As the Prosecutor of the ICC, I was given a clear judicial mandate. My duty is to apply the law without political considerations. I will present evidence to the Judges and they will decide on the merits of such evidence.

And yet, for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short term political goals. We also hear officials of States Parties calling for amnesties, the granting of immunities and other ways to avoid prosecutions, supposedly in the name of peace; we can hear voices portraying the ICC as an impediment to progressing further with Peace processes

Unlike the Nuremberg and Tokyo tribunals which were established in the aftermath of an allied victory, the ICC continues to operate in an environment where there are ongoing conflicts and thus dispensing justice in these circumstances becomes a challenge. The prosecutor of the ICC clearly outlined enforcement of the Court’s decisions in situations where the international community is simultaneously trying to achieve other objectives like security, providing humanitarian assistance as a major challenge.

Stephen Arthur Lamony is the Africa Outreach Liaison for Africa and Situations Advisor at the Coalition for the International Criminal Court (CICC).

ENDNOTES

1. Declaration by Northern Uganda Civil Society Organisations On Agenda Item 3 of the Juba Peace Talks (Accountability and Reconciliation) Acholi, Lango, Teso and West Nile Regions, 7th September 2007, Para. 1. [↩]
2. Fabius Okumu-Alya , New Vision, 4 December 2006, Why mato oput system should come before ICC. [↩]
3. Justin Moro, New Vision, 26 December 2007, Chiefs call for reconciliation Law. [↩]
4. Amnesty Act 2000, Part II, Para 4. See also: Annexure to the Agreement on Accountability and Reconciliation, Principal clauses 2.2 & 2.3, PP. 2-3, and  Henry Mukasa, New Vision, 5 December 2007, “Gov’t grants amnesty to LRA Defectors”. [↩]
5. Lira Declaration on Agenda Item 3 of  the Juba Peace talks (Accountability and  Reconciliation) By cultural and Religious leaders, Women  and youth from Madi, Teso, Lango and Acholi Sub regions, August 11, 2007, Para 4 (c). [↩]
6. Annexure to the Agreement on Accountability and Reconciliation, part 5, P.3, see also: Declaration by Northern Uganda Civil Society Organisations On Agenda Item 3 of the Juba Peace Talks (Accountability and Reconciliation) Acholi, Lango, Teso and West Nile Regions, 7th September 2007, Para. 2. [↩]
7. Hilary Nsambu, New Vision, May 25, 2008, Uganda: Ogoola Names Judges On Anti-Corruption, War Crimes Court. [↩]
8. Report to Uganda-OHCHR Roundtable on transitional justice organized by the Government of Uganda, Justice, Law and Order Sector Transitional Justice Working Group, in cooperation with Canada’s Stabilization and Reconstruction Taskforce (Kampala, 9-11 March 2009). [↩]
9. Ibid. [↩]
10. Explanatory Notes of the Consensus Recommendations of the Workshop sponsored by the Public International Law & Policy Group and the Refugee Law Project, February 16-19, 2009, P.2. [↩]
11. Civil law refers to that branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case. [↩]
12. This corresponds to the basic legal principle-Nullum crimen, nulla poena sine praevia lege poenali. [↩]
13. New Vision, May 25, 2008, Uganda: Ogoola Names Judges On Anti-Corruption, War Crimes Court. [↩]
14. Ker Kwaro Acholi and Justice and Reconciliation project “Workshop  on Accountability an Reconciliation in Uganda: Juba Peace Talks“, May 2008,. P.4. [↩]
15. Situation in Uganda in the case of the prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen.  ICC DECISION ICC-02/04-01/05-377, 10 March 2009, available at http://www2.icc-cpi.int/iccdocs/doc/doc641259.pdf. [↩]

Tags: Global Studies Review Vol. 5 No. 3 Fall 2009

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