Lino Owor Ogora

AS NORTHERN UGANDA continues on its road to recovery, complex questions remain unanswered regarding how perpetrators who committed crimes during the conflict can be held accountable. One of these complicated questions is how to hold accountable individuals who bear dual victim-perpetrator identities. Another key question is whether or not amnesty should be granted to former perpetrators of war crimes and crimes against humanity. Debates on reparations, and what forms it will take, also continue to dominate the post-conflict discourse in northern Uganda. Then there is the question of how to hold state perpetrators accountable and finally, what options can be pursued as alternatives to prosecutions. The ongoing trial of Colonel Thomas Kwoyelo before Uganda’s International Crimes Division (ICD) offers a case study of how the pursuit of justice in northern Uganda is complicated by various factors.

 Colonel Thomas Kwoyelo is the first senior commander of the LRA to be subjected to trial in Uganda’s International Crimes Division (ICD) court. He was born around 1972 to Oyella Roselina from Gaya Parubanga in Pabo and the late Jokodino Omona Opototap from Cici clan in Pogo. He was the fourth child out of eleven children of which only seven (three boys and four girls) survived, with the other four dying in their infancy. In line with his paternal lineage, Kwoyelo’s ancestry is traced to the Cici clan, who mostly hail from Acut-Cama village, Pogo parish, Pabo sub-county in present-day Amuru District, northern Uganda. He is said to have been abducted by the LRA in 1987 and carried off into captivity where he was trained into a soldier. Over the years, he rose through the ranks and eventually became one of the high ranking LRA commanders. In February 2009 he was captured by the UPDF and detained for a few months before being presented in court in July 2009.

On 11 July 2011, he appeared before the ICD charged with 12 substantive counts and 53 alternative counts of war crimes and crimes against humanity to which he pleaded not guilty. His defense lawyers then raised a preliminary objection concerning the question of whether or not Kwoyelo was entitled to amnesty. The question of amnesty sparked off a succession of court battles between the prosecution and the defense team, culminating in a referral of the matter to the Supreme Court of Appeal, which is yet to make a ruling on this matter. Clause 3 of Uganda’s Amnesty Act of 2000 offers pardon to, “…any Ugandan who has at any time since the 26th day of January, 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda.”

On 25 May 2012, Part 2 of this Act, regarding the awarding of Amnesty expired. Despite the fact that there will be no more granting of amnesty to future reporters, the case of Thomas Kwoyelo may have established a precedent for future cases that could come up for trial before the ICD. In the absence of official granting of amnesty, questions will remain regarding which perpetrators qualify for prosecution before the ICD and which perpetrators need to be handled through other alternative justice mechanisms such as traditional justice.

In addition, the fate of adult commanders of the LRA who were abducted as children and turned into the perpetrators they are today has been a topic of substantial discussion. People like Kwoyelo carry dual identities in which they can be labeled victims and perpetrators at the same time. Having been abducted while young and vulnerable, Kwoyelo was a victim. Having committed crimes after the age of 18 years, Kwoyelo should take responsibility for his actions. On the other hand, any human rights activists and proponents of accountability proceedings frequently insist that on becoming adults, such individuals need to take full responsibility for their actions. The dual victim-perpetrator identity presents a dilemma which needs to be solved when handling future perpetrators of the LRA.

As the ICD goes about its mission of ending impunity in Uganda, discussions on reparations must not be left out. According to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, victims of gross and serious violations of human rights and international humanitarian law are entitled to reparations for harm suffered. Some generally accepted forms of reparations include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. These reparations may be delivered materially or symbolically, and individually or collectively. For the ICD to truly serve the interests of victims in northern Uganda, reparations must be integrated into the trial process, regardless of trial outcomes. A comprehensive reparations programme by the Government, implemented in conjunction with the ICD, can go a long way in delivering justice to victims of conflict in northern Uganda.

Furthermore, another complex question is how to hold all perpetrators of crimes accountable. In northern Uganda, it is a known fact that all armed parties to the conflict, including state and non-state actors, committed war crimes and crimes against humanity against the civilian population. The Juba agreement, however, does not subject state actors or the UPDF in this instance, to prosecution in special courts such as the ICD which were created as a result of the peace negotiations. This is why many people in northern Uganda will continue reiterating their call for prosecution of state actors within the ICD.

Finally, the case of Thomas Kwoyelo also points to the fact that the time has perhaps come to consider options for using alternative justice mechanisms. This would include the use of traditional justice mechanisms to promote reconciliation, truth-seeking and healing between Kwoyelo’s clan and that of his victims. Many representatives of civil society organizations on the ground have advocated for the use of traditional ceremonies to rehabilitate Kwoyelo. Many local residents of Pabo pointed out that after the community is sensitized and ready to receive Kwoyelo back, traditional rituals will be necessary for reconciliation and rehabilitation. However, respondents also had reservations about traditional justice, specifically regarding the fact that ceremonies like mato oput might not be appropriate for Kwoyelo’s situation. Mato oput requires the participation of the perpetrator’s clan as well as clan members of the victim. Nevertheless, Kwoyelo’s trial demonstrated that court prosecution alone may not be the answer to holding perpetrators of crimes accountable. In the event that trials end in a stalemate or cases against perpetrators are dismissed, there is need to promote reconciliation and healing between perpetrators and victims on the ground. Alternative mechanisms are best suited for this.

 In conclusion, questions will remain pending regarding how to go about pursuing justice in northern Uganda. As demonstrated by the trial of Colonel Thomas Kwoyelo, these questions are complex, and will require an enormous amount of work before appropriate solutions are found.