Kasiva Mulli and Olive Ederu
The conflict in northern Uganda was a bitter pill to women who became victims of various forms of sexual and gender based violations. Those who were abducted were forced to marriage at a very young age, subjected to rape, sexual slavery, forced pregnancies and infection of sexually transmitted diseases. Those who managed to avoid abduction did not escape this form of violence. Camp life was often characterised by rape, infection of HIV/AIDS and a lack of proper reproductive health services to respond to these violations. The Government of Uganda in its response to the sexual and gender based violence (SGBV) related crimes that were committed during the conflict, agreed and signed the Agreement on Accountability and Reconciliation negotiated during the Juba peace talks. The agreement sought to address “serious crimes, human rights violations and adverse socio-economic and political impacts” and stipulated that special needs of women and children need to be recognised and addressed.
In July 2008, the Government established the International Crimes Division (ICD), a specialised division of the High Court of Uganda with jurisdiction over international crimes including crimes against humanity and war crimes. In May 2010, the Rome Statute was domesticated in Uganda and adopted as the International Criminal Court (ICC) Act 2010 and expressed the Government’s commitment to investigate and prosecute international crimes in Uganda’s domestic courts. In addition to this the Juba Peace Agreement incorporated gender aspects in line with international instruments such as the United Nations Security Council resolution 1325/00. The big question is: how has prosecution as a mechanism of transitional justice responded to these crimes committed in northern Uganda?
In 2004 the International Criminal Court opened investigations into the Ugandan situation and issued arrest warrants for five top commanders of the LRA. Currently only three arrests warrants stay effective as the other two commanders are presumed dead. Among the three, only one commander, Joseph Kony, is charged with sexual slavery as a crime against humanity. In 2011, the ICD commenced its first trial of Thomas Kwoyelo for war crimes and crimes against Humanity. Thomas Kwoyelo was a commander in charge of the sick bay in the LRA and out of the 73 counts with which he was charged with, none includes offenses against SGBV related crimes.
In addition to this, the Rome statute which was domesticated in 2010 cannot be applied for prosecution of crimes that occurred before that date under the principle of non-retrospectivity. Thus sexual and gender based crimes committed before 2010 can only be tried under the provisions provided for in the Penal Code as well as provisions of the Geneva Conventions on international humanitarian law which have also been domesticated in Uganda. These laws are not adequate to deal comprehensively with sexual and gender based crimes that occurred during the conflict. The Geneva Conventions provide for the crimes of sexual and gender based violence as outrages upon personal dignity but they are not treated on the same level as torture or murder. In addition to this, women who were sexually abused but engaged in combat and were presumed combatants are not protected by this clause.
The same simplification is also applied to the definition of these crimes under the Ugandan Penal Code where they are treated as offences against morality but not offences that affect the physical and mental wellbeing of girls and women. Furthermore under the Ugandan criminal justice system which primarily relies on the Penal Code Act, the standard of proof is “beyond reasonable doubt”. Where a person is accused of rape, the prosecution must produce cogent proof, such as medical evidence, to pin the accused person in addition to other evidence such as the identification of the accused by the victim(s). Considering that in conflict situations where the victim will most likely not undergo medical examination or be able to identify the perpetrators in the cases of gang rape, it is often impossible to adduce satisfactory evidence against the accused person. Thus perpetrators often escape conviction because the prosecution is unable to attain the set standards of “beyond reasonable doubt”.
Another inadequacy in international law is the lack of provisions which address the crime of forced marriage The drafters of the Rome statute argued that the crime of sexual slavery comprehensively covered elements associated with crime of forced marriage but this stance has started to be questioned especially because of the conflict in Sierra Leone where forced marriage was rampant. The Appeals chamber of the Special Court for Sierra Leone in the case of P vs Brima, Kamara and Kanu held that forced marriage was a distinct crime different from sexual slavery because unlike sexual slavery forced marriage included the tag “wife”. Girls were forcefully assigned to men and were expected to undertake domestic duties such as cooking, cleaning and carrying loads. In return they got protection from their “husbands” as well as provisions. This is not comprehensively covered under the crime of sexual slavery. Many scholars have described this crime as ‘conjugal association’.
Since the war in northern Uganda began in 1986, many young girls were abducted by the LRA and in addition to becoming porters, escorts and/or being forced to engage in combat, they were forced to become “wives” to the male fighters and commanders. The LRA were very strict on “marriage”. This was the only way one was supposed to engage in any sexual activity. Thus this conjugal association goes beyond sexual slavery because sexual offences only formed part of the crimes subjected to the girls while, other non sexual elements like abduction, enslavement, degrading treatment do not form part of the elements of sexual slavery. Those who suffered sexual violence under the hands of the UPDF also do not have access to justice for those crimes.
Thanks to ad hoc tribunals and much lobbying from female advocates and gender activists, the jurisprudence regarding prosecution of sexual and gender based violence has grown tremendously. In fact, the codification of these crimes under the Rome Statute is credited to the work of these tribunals. However, prosecuting these crimes has always proven to be a challenge. Prosecutors are always shy to include these charges in indictments citing difficulty in investigations, getting witnesses to testify among other reasons but this is not reason enough to ignore these crimes.
As much as Uganda’s legal framework secures accountability for SGBV related crimes, it is important to note that poor implementation has greatly hampered its intentions. The failure to charge Thomas Kwoyelo with having committed SGBV related crimes, to acknowledge forced marriage as a crime, to design a legal framework to respond to SGBV related crimes committed before adoption of the ICC Act 2010 reflecting their unique elements, by a way of a retrospective law has left women survivors of conflict still yearning for accountability. Because women suffer a lot in conflict situations, the body of a woman has been a battle field and not having a comprehensive way to deal with these crimes sends a message that victims of such crimes are secondary.