Katherine Payne, Lizzy Chenery and Marijn van de Geer (Resolution:Possible)

RESOLUTION:POSSIBLE WAS FOUNDED in 2010 as a UK based campaign against the Lord’s Resistance Army. Very soon it became clear, through conversations and interactions with people in and from the region, that the situation in northern Uganda was far more complex than we had been led to believe. Through further research we realised that all the tensions and conflicts in the Great Lakes Region are very much connected. We were therefore no longer comfortable being a ‘single issue campaign’ presenting issues with clear cut solutions. Instead we realised there was an urgent need to get as much information from as many different voices on the table as possible.

 What happens when we only hear the loudest voices

The stories that we hear through British media about justice relating to conflicts in Africa are within the context of international courts such as the Special Court for Sierra Leone and now the International Criminal Court (ICC). No mention is made of local or national justice mechanisms, which leads people here to believe that these are the only judicial routes available. Here in London, it can therefore be easy to assume there are no national judicial systems in place in the country in question.

Recently President Obama announced amendments to Rewards for Justice, extending rewards to anyone who can provide information that leads to the arrest of people indicted by the ICC. To an outsider, the combination of these schemes of international intervention can look as though Africa does not have the mechanisms to deal with these crimes themselves. An international court in The Hague is needed to try their criminals. An international monetary incentive is needed to capture their criminals. These are the ‘loudest voices’ in the West, and so it is no surprise that this is what most people believe.

During our trip in the African Great Lakes region in October we spoke to various people who made it clear that the ICC is not as unquestionably accepted as it is in the West. Accountability was high on the agenda in almost all of our meetings. People we spoke to raised questions of the integrity and also the relevance of the ICC, and other incentives like it, for those people actually affected by these conflicts. Is there a space for local justice systems such as mato oput when talking about accountability and prosecution? Is it enough for local people to have perpetrators go through mato oput, or do they place more value on a high profile trial in The Hague? Perhaps a combination of the two is preferable, where integration back into society is also a priority.

 A TRC for everyone

In the wake of the recent corruption scandals in Uganda, a politician told us that the only way out of the cycle for Uganda and East Africa was a full truth telling commission; A space for transparency about the history of the region. Only through this space for learning and sharing could there be a chance for a fair society.

The idea of a Truth and Reconciliation Commission (TRC) is of course nothing new for this region, with the TRC dealing with the 1994 killings in Rwanda in 1994 and Burundi having one in the pipeline for over 10 years. What if we were to increase the scope of the TRC? Through our research it has been very clear how connected the conflicts in the Great Lakes Region are to each other, and the rest of the world.  What if there was a TRC that looked at all parties involved, currently and historically? Not just those people who are obviously involved such as Joseph Kony, but also the governments in the region as well as western politicians involved in the region? We should then also look at the CEOs of corporations active in these countries and even ourselves here in London, paying our taxes, buying our mobile phones, donating money, buying imported food and flowers.

 Creating connections

With our case study region of the Great Lakes Region, which we chose because of our initial interest in the LRA and northern Uganda, we look at the mineral wealth of the region, and how it feeds into our economies back home. We look at how our donations to certain charities are spent, how our taxes are spent by our governments on international aid, how our banks invest our money. And then on the next level, how all countries in the African Great Lakes region are connected from a historical, political and economic point of view as well as western countries historically and now with many economic stakes.

Ultimately, we truly believe that fair justice and sustainable peace cannot exist so long as not all parties involved in the conflicts are held accountable. We need to look further than placing the blame on individuals. We hope for a more comprehensive way of looking at accountability, incorporating all parties involved. 

 Resolution:Possible is a discussion platform focused on conflicts, their causes and our connections to them. Find out more about the organisation at http://www.resolutionpossible.org.

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. 

Isaac Okwir Odiya

IN THE YEAR 2012, the Justice and Reconciliation Project (JRP) and the Grass Roots Reconciliation Group (GRG) entered into a partnership to implement the Community Theatre Programme, a pilot project with two victims’ groups in Lamwo District Palabek Sub County. The theatre project was designed to promote healing among conflict affected community, seek redress for rights violated during conflict through advocacy and to promote reconciliation among members of the community affected by conflict.

This pilot project provided a platform for victims of the LRA conflict to creatively share their conflict experiences as well as to identify major challenges impeding healing, reconciliation and the process of peace building in their communities. It also provided an avenue for promoting unity among members of the group and the community at large, taught members of the group and the general community how to handle post conflict challenges and above all it helped to learn advocacy skills so as to demand for their justice needs in relation to rights violated during and after conflict.

The community theatre programme adds onto the advocacy skills of community groups by introducing creative ways of telling stories in order for every member to comfortably tell their story. It also guides members of a these groups to identify common issues that affect the group or community the most from the different stories told and to prioritise them as group or community problems. It guides the group on how to logically present their advocacy points and also provides options of presentation methods such as the use of performance, song, poetry, drawing and speeches to present their advocacy issues in a way that is friendly to their capability. Using the theatre approach, community groups learn to identify the audience for advocacy concern and to speak together over their priority issues.

During focus group discussions with members of the different groups, victims showed concern over abuses inflicted upon them right from 1986 to 2007 by different armed groups. They claim that their state of inability to function normally, that is to meet their basic requirements of life in order to live a descent and meaningful life, is attributed to violations suffered during the wars which no step has been taken by any stakeholder to address. It is on this basis that victims groups find it important to advocate for accountability for the abuses they experienced during conflict.

Through a well organised formal gathering, members of the group will present their problem with suggested solution as they advocate to key stakeholders in demand for justice over issues they hold importance to them. Key persons will be invited to attend the presentation and will be accorded time to discuss advocacy points of the groups. The discussion during presentation will provide an entry point to follow up advocacy needs of the group for possible intervention to ensure that justice is met.

It is therefore important to pay attention to this theatre groups’ approach in demanding for rights that were violated. Members of the public, Local Government and policy makers should pay attention to their advocacy points and use it as an entry points to foster accountability for right violated during conflict and to establish mechanism that will avoid repeat of such violation on future generation.

Borrowing from the impact of the programme on to the community members in Palabek in 2012, JRP in collaboration with GRG will engage ten community groups in Acholi sub region (five groups in Lamwo District, two in Gulu and three in Amuru) in 2013. During a pre-theatre meeting with these groups, we learned that all these groups have shared conflict experiences and have a similar vision for handling post conflict challenges. Common conflict experiences expressed by the group members include lost lives, lost properties, disrupted education, displacement, torture, looting of livestock, sexual abuse and many others which have turned them to live a life of helplessness. Victims also express dismay at the lack of accountability for abuses inflicted upon them during conflict. They therefore hold the need to account for the losses they suffered during conflict highly, but identifying which way to take is an obstacle. It is on this basis that JRP in collaboration with GRG will use community theatre programme to build the capacity of victims groups to advocate for their justice needs for accountability. 

Evelyn Amony and Olive Ederu

IN 2008, THE GOVERNMENT of Uganda and the Lord’s Resistance Army signed the annex to the principal Agreement of the Juba Peace Agreement on accountability and reconciliation which elaborates how perpetrators should be held accountable for crimes committed during the conflict. In line with this, the Government of Uganda established the International Crimes Division of the High Court to try individuals accused of committing war crimes, crimes of genocide, terrorism and crimes against humanity. The Court fired into action in 2011 by opening the trial of Thomas Kwoyelo who was charged with war crimes and crimes against humanity.

During a dialogue held by the Gender Justice Department at JRP with the Women’s Advocacy Network (WAN) on prosecution as a transitional justice mechanism in September 2012, the women members presented a number of cross cutting issues which premise on the effectiveness of prosecution in delivering the desired justice and reconciliation. As much as accountability for crimes committed during conflict has been welcomed by women survivors, the lingering question has been whether all the “perpetrators” will be investigated and subsequently prosecuted.

 The conflict in northern Uganda produced three categories of survivors: the formerly abducted and the formerly displaced or a combination of the two. While many women who were abducted were widely believed to have been violated (raped, forced into marriage or sexual slavery among other violations) by the LRA, those who were who were forced into internally displaced persons camps during the war also endured sexual violations at the hands of their supposed protectors, the Government soldiers and a few by the rebel forces. An example is Adong (not her real name) who after her abduction was forced to become a wife to an LRA commander. She lived in captivity for three years and begot two children. Upon her return, she was forcefully taken by a Government soldier and forced to marry him. The soldier even threatened to shoot Adong’s mother if she objected and went as far as criticising the locals for “freely” giving out the daughters to the LRA and not the Uganda People’s Defence Force. Many girls who escaped from captivity were tortured and raped by the Government soldiers after their “rescue”.

Yet another tale is told of one of the Aboke girls who after being shot on the leg sought refuge from the UPDF who instead raped her to death. In other quarters, men have opened up and given chilling testimonies of being sodomised by UPDF soldiers. The people of Atiak will never forget the day a commander of the UPDF stormed the market on auction day and demanded the people to give up the relatives of LRA commander Otti Vincent. When the people refused to comply he coughed as a sign for his troops to fire. What happened in the next minutes can only be described as a scene in a horror movie with the soldiers firing indiscriminately at the people with bullets and killing about 200 that day. A young girl at the time described the scene:

The soldiers begun shooting randomly at the women and they started falling down. I was hidden under a bale of clothes. It was my first time to see a dead body. The women seemed to be sleeping but blood oozed from them.

Such are but a few examples of experiences of the many who suffered violations from both warring parties.

 A perpetrator turned dispenser of justice

Another issue is that many perceive current transitional justice mechanisms as reflecting a scenario where the perpetrator has turned prosecutor and dispenser of justice. Government soldiers allegedly committed atrocities and therefore to have the same institution championing prosecution seems to many to be a mockery of justice. The fear is that the targeting LRA Commanders reflects a level of impartiality which is undesirable. The scenario can best be expressed by the saying “nobody can prick his or her own eyes”.

Related to this is the aspect of witness protection. Fear of losing one’s life and that of immediate family following testimonies for or against an accused continue to linger in the minds of potential witnesses, this coupled with the risk of having the prosecutorial guns turned on a witness (though the later has been somewhat dispelled by grant of certificates of amnesty) raise pertinent issues and show the challenges that lie ahead in accomplishing the objectives of accountability for past violations through prosecution. It is a rule of thumb that for a mechanism to succeed it requires local support and participation thereof and since prospective witnesses are usually the local population if they refuse to testify in cases and cut tail the whole agenda.

 From the above excerpts, to beat the drum of accountability by way of prosecuting the alleged “perpetrators” while targeting one party and ignoring the other by no means results into meaningful justice. If proper accountability is to be achieved, then both the LRA and the UPDF commanders should face trial at the ICC or the ICD in order for the weighing scales of justice to balance. The other side of the coin should be flipped, otherwise we may never know what lies beneath and past events may never be resolved. 

Nancy Apiyo

In our work at the Justice and Reconciliation Project, we have found that survivors of the conflict tend to have different views on prosecution – while some think there is need for prosecution others think that it is better to forgive and move on. Some of the views of the victims change over time depending on various factors such as lack of trust in the prosecutorial institutions both locally and internationally or lack of knowledge on transitional justice processes. The different views of the women on the same subject illustrates that transitional justice processes should be enforced together to complement each other depending on the society, nature and context of the conflict.

Jolly and Maggie* were abducted by the Lord’s Resistance Army and stayed for over five years in captivity. They have differing views on prosecution as a form of accountability for the atrocities committees during the war. In this interview with Gender Justice Project Officer, Nancy Apiyo, They share their views with us.

* Not their real names.

Jolly

Voices Magazine: What is your view on prosecution?

Those who were responsible for heinous crimes should be prosecuted so that they are accountable for what they did, if not it will continue. When they want to repeat the same thing in the future they will know that they can be held accountable. If people are prosecuted it will stop others from doing the same. It is good for people to be accountable for what they did. There are laws that forbid actions committed during the war [and] everyone is subject to those laws.

Who should be prosecuted for war crimes?

People should be prosecuted depending on their crimes or what they did. Low ranked soldiers should be punished even if they are given a lighter punishment. Not only top commanders have to be punished. For example junior commanders also raped women without Kony’s orders. Therefore they should be given punishment and not let to go free because they can also go to the bush on their own. They broke orders and brought problems to top commanders by committing crimes which the commanders had forbidden.

Can prosecution lead to restoration?

If those who committed atrocities are prosecuted people can heal from what they did. If they are left to go free people feel bad. It should be up to people to decide the time of sentence depending on if people have forgiven the person or not. Some commanders also feel safer and have less guilt conscience when they are in prison. The punishment should not be death sentence but just a few years to make them pay for what they did.

Should women who committed crimes be punished?

No woman in the Lord’s Resistance Army committed crimes that deserve punishment. They had children and could not get time to commit crimes. They had to protect their children. Women went to loot food most of the time to survive.

[But] if women committed heinous crimes they should also be accountable and prosecuted so that other women do not do the same. People have to abide by the law and not vice versa.

Maggie

What is your view on prosecution?

It is not good to prosecute because people who are still in the bush may decide not to come back home. There is no need for prosecution. Everyone is capable of committing a crime. If someone is forgiven he can become human again. It also helps those still in the bush to return. It is not right to prosecute when other people are still in the bush.

What if everyone had returned?

It is not good to prosecute. If someone asks for forgiveness they should be forgiven. If there is genuine forgiveness people should be let free. No one went to the bush willingly. No one went to a training wing so as to join the rebels. Everyone was abducted. Everyone should be forgiven. It is not good to imprison. It is important to know what crime someone committed. There is no need of imprisoning someone innocent. 

How can people be held accountable?

If someone accepts committing the crime, he or she is already accountable. When he or she asks for forgiveness that is accountability.  If he or she asks for forgiveness from the government, he or she should be forgiven. Forgiveness is very good. If someone surrenders from fighting he or she has asked for forgiveness. By the time someone asks for forgiveness, it is as though he or she has said ‘I am sorry I did bad and I want to return to stay with people’.

How can impunity be stopped?

If the person asks for forgiveness and does not repeat the crime, it means he is remorseful and will not do it again.  

Isaac Okwir Odiya

In the West Nile sub-region of Uganda, as may be the case in other parts of Uganda and the rest of the world, former combatants of a rebel movement and members of the very community to whom crimes were perpetrated are living a parallel lives. West Nile experienced rebel activities of the Uganda National Rescue Front (UNRF) I and II which was characterised by the looting of civilians’ properties and killings, displacement and abduction among others. The rebel group is claimed to have started as a protest against bad government policies and unfair treatment to people of West Nile. Through peace negotiation, the Government of Uganda and the rebel group signed a peace agreement which returned the rebels back home. The rebels of UNRF I and II were pardoned by the Government after denouncing war and were resettled to their respective communities.

Community outreaches are one of Community Mobilisation’s core activities and helps to engage conflict affected communities to disseminate and discuss transitional justice issues in their communities. In 2012, we engaged community members of Lefori Sub-county, Moyo District in a community dialogue to discuss with them post conflict challenges and opportunity for reconciliation within their region. The dialogue was attended by former rebels of UNRF I and II and members of the community who suffered the brunt of the two rebels groups. The discussion presented a parameter of co-existence between former rebels and other members of the community characterised by victims’ grievances on towards the former rebels for the atrocities imposed onto them.

Victims claim that the rebels looted their properties, killed their spouses, disrupted the education of their children and displaced their communities. Because of this they are not able to provide basic requirements to their families. They also claim that the Government has pardoned and resettled people who perpetuated crimes against them, forgetting the losses they incurred. To them, the former rebels have been well resettled and the Government has pledged to give them more resettlement packages despite the atrocities they committed on the civilians. Victims are living a parallel life with former rebels whom they claim are the source of their suffering and state of helplessness. They hold former rebels responsible and want them to account for their losses.

On the other hand, the former rebels of UNRF I and II claim that they went to the bush in demand for their rights which were being violated by the Government of Uganda and while in the bush, they did everything possible to attract the attention of the Government to listen to them. The Government responded to their plea in a round table discussion during which Government delegates pledged to better their condition of living if they denounce war which they did and reported back home. They claim that the Government promised to pay them resettlement packages to start a new life but this promise has never been fulfilled. Just like victims are holding former rebels accountable for the losses they met during the war, former rebels are aggrieved towards the Government of Uganda for returning them home empty handed and not fulfilling their pledge.

To the former rebels victims fail to understand their point of view, blame them for wrongs committed during the conflict and as such have not fully accepted them in the community. Victims are disassociating them from development opportunities in the area and are not cooperating with them in community social events. All sorts of continuing evils and criminal acts in the community are blamed on them. Having been failed by the Government to properly resettle them into the community and following all sorts of accusation and abuses by members of the community, ex-combatant thinks they have been pardoned for easy prosecution at a later time.

In this context therefore, it is important to note that the principle of accountability for crimes committed during conflict and the needs for reconciliation are fundamental in a post conflict situation. The parallel life between ex-combatants and victims in West Nile is a result of lack of accountability and a mechanism to foster reconciliation in the region. The resettlement of former rebel into their communities was not systematic and instead should have been used to help to foster social acceptance and reconcile victims and former rebels in as far as their needs are concerns thus the approach used did not address the future justice needs of victims and ex-combatants. The resettlement of ex-combatants lacked the involvement of community members by way of participating in the peace process which is why the ex-combatants are not easily accepted home. This would have helped to connect members of the community with former rebels during resettlement and own the process of resettling former rebels back home.

To address the injustices causing pain among victims and ex-combatants, accountability should be made through a dialogue meeting in which apologies should be made to victims for the crime committed onto them. This would foster social acceptance of ex-combatants by way of forgiveness and enhance a mutual co-existence among members of the parties. The return of former rebels has promoted political stability with marked end of atrocities on the civilians in the region but what is required to be done is addressing obstacle to mutual co-existence after resettlement. Therefore stakeholders in peace making and conflict resolution should pay close attention to dialogue to reconcile victims of rebels’ atrocities and former rebels in West Nile. 

Evelyn Akullo Otwili

IN THE COURSE of the conflict in northern Uganda serious crimes of concern to Ugandans as a whole – particularly regular use of torture, murder, abductions and forceful displacement – were perpetuated against civilian populations in places like Palabek, Burcoro, Lukome, Awach, Alero, Acholi Bur, Purongo, and Namukora  in the 1990’s not only by LRA but also by State Actors. As early as the 1990’s, Amnesty International reported inhumane acts by the then National Resistance Army (NRA). A particularly serious set of human rights violations are reported by a several sources to have taken place between 16 and 18 April 1991 in Paicho Sub-County in Gulu District. On these dates people from villages around Burcoro were brought to a temporary NRA camp at Burcoro primary school for “screening”. NRA soldiers rounding people up are alleged to have done so in a violent manner, beating some of those held (see ‘Uganda: Human rights violations by the National Resistance Army’. Amnesty International. December, 1991). There were also reports of rape, torture and extrajudicial execution. JRP in its work has also come up with similar report on Palabek (see ‘When A Gunman Speaks, You Must Listen’, JRP Field Note XV, August 2012) and Mukura. These treatments of civilians were not only inhumane but seem to portray a pattern of consistent human rights violation across northern Uganda, leaving the people with very many unanswered questions.

In Palabek, charges are yet to be brought on Captain Abiriga. To date, not only has his identity remained a mystery but also the silence surrounding this man and his atrocities in Palabek is unbecoming. While documenting the experiences of the victims in Palabek, we discovered that most of the tortures, beatings, rapes and killings by the NRA soldiers in Palabek in the early 1990’s happened under the mastership of Captain  Abiriga. All the available options seem to exonerate him – he can’t be tried in the ICD nor the ICC. Other than the sound in his name, nothing much seems to be known about him. Should we now say he goes unpunished? The victims feel otherwise.

In Burcoro a similar situation, where countless rape episodes, torture, killings by suffocation, abductions and loot were carried out by the 22nd Battalion of the NRA, allegedly under the command of Ikondere. Much as this was 1991, the brutality and cruelty that these soldiers displayed on unarmed civilians can only be compared to the ravage of beasts. Much as the hurts and ruins inflicted upon this population still stand out up to today, nothing much has been done to hold the perpetrators of these crimes accountable. Time and again some individuals have attempted to explain that these were a “bunch of foolish boys who went on rampage”. Do we believe that? Do the victims believe that? Shall we ever travel that road to bring justice? It remains nothing but a road less traveled.

 What has been done to remedy these rights violations? Have these NRA commanders ever been held accountable or silently rewarded and promoted? Where are they? Shall we ever travel that road which will see us hold these people accountable and bring justice to the victims in Palabek, Burcoro, Lukome, Awach, Namukora, Mucwini and even Mukura? For the two decades that open violence raged some of those questions were too hard to be asked or the road was too ‘bushy’ to be traveled. A lot of the politicians who drummed this cry such as Zacary Olum, Andrew Adimola and Teberio Atwoma found themselves tortured and imprisoned for allegedly ‘using government fund to wrongly mobilise the masses’ according to Amnesty International. It became extremely difficult for anyone to stand up against this brutal violence lest the same happen to them. When the ‘serious’ Juba peace talk of 2008 finally came, many civilian populations expected part of these questions to be answered. Unfortunately these questions remained more mysterious and eluded all tangible possible answers.

Yes, peace has returned to the region but the question of accountability and possible prosecution of state actors especially has eluded the victims and northern Uganda as a whole.

Instead of providing a viable solution, the Juba Peace Agreement called for the handling of State Actors through other methods such as Court Martial. This has created frustration for the victims in some of the places aforementioned, who bore the wrath of these state actors. None of them can concretely say a court of this nature has happened in relation to their specific sufferings. Many feel that even if there were to be such a court, its outcome would always remain unpredictable because not only are their proceedings closed to the public but they are more often than not conducted by the army leadership. Victim participation in these courts is also unheard of. This makes them feel that the road to hold state actors accountable is yet to be traveled.

Which road should victims travel?

As noted from the experiences of these communities, most of the crimes committed by the NRA were crimes before 2002. The jurisdiction of the International Criminal Court only allows the Court to deal with crimes committed after the 1st of July 2002. Therefore, while peace is here and recovery is underway, where will accountability of State Actors be? Not with the ICC of course.

Can the victims travel the road of the International Crimes Division (ICD) of the High Court – formed as a result of the negotiations between the Government of Uganda and the LRA for trying LRA leaders in Uganda? As much as this would have been another viable option, the timing of the violations makes it less traveled as well.

As I conclude, there is need for state actors to be held accountable in other fora other than the court martial and this can only happen when there is a political will for it. 

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. 

Dear Readers,

In this edition of Voices magazine we take a look at accountability for gross human rights violations. The contributions in this issue explore the local context of justice and suggest that Ugandans are at a dilemma when it comes to justice for crimes committed during the conflict in northern Uganda. A one size fits all approach doesn’t necessarily apply to victims of conflict.

At JRP, we believe that a bottom to top approach to accountability is the best solution for communities decimated by conflict. We have learnt from the experiences of other countries that transitional justice interventions, ranging from truth commissions, international and national trials, reparations and security sector reforms have helped societies move beyond the past. And yet despite this, in some places such interventions, no matter how well meaning they may be, have made very little difference in the lives of ordinary people.

For more than 20 years, northern Uganda was home to numerous rebellions against the Government of Uganda – most notably the Lord’s Resistance Army (LRA) led by Joseph Kony. In 2000, an amnesty law was enacted in an attempt to put an end to the bloodshed. The Amnesty Act introduced a simple, non-onerous procedure by which people previously involved in rebellion could renounce violence and return to the community.

To date, tens of thousands of former combatants have returned, taking advantage of government amnesty. Some of the most senior commanders live under the protection and support of the government in military barracks away from the community who suffered violence they perpetuated. The majority, however, have found themselves returning and living side by side with those communities. There, they must co-exist with the very persons against whom they committed atrocities. Many have also opted to join the military, seeing no future for themselves within the community.

Adding to this tension is the fact that the war is not yet over. Kony and his senior commanders remain at large and are on the run causing mayhem in neighboring countries; abducting new children and training them. How do we address the problems that will arise when thousands of ex-combatants return to villages and seek to live alongside victims of the conflict? 

Many people have pointed to prosecution. Ugandans needs no reminder that the intervention of the ICC remains controversial. It is argued that the indictments pushed the LRA to the negotiation table, but on the other hand, the indictments have arguably made negotiations with the LRA more difficult, because Joseph Kony declared that he will not surrender until the ICC indictments are lifted. This stance continues to make many in the North view the ICC as an obstacle to peace —at least in the short term – given the military operations in the region. We are also reminded that punitive approaches alone are limited in their ability to address the complex situation in northern Uganda.

A narrow, punishment-oriented definition of justice is deeply problematic as it does not take into account the political and social dynamics of the conflict or peace building. Paying too much attention to the prosecution of perpetrators may cause one to disregard the pattern of abduction and use of extreme violence used by the LRA to force the will of its commanders. It also does not take into account the widely held view of northern Ugandans that their society as a whole is the collective victim of historical injustice: It does not, for example, take into account the longstanding injustices perpetrated by  the government (such as those in Corner Kilak and Mukura, to mention but a few).

The major concern, therefore, is that a punitive approach to accountability leads to a narrow solution which has the potential to skew our pursuit for justice. Where do we draw the line between the victim and the perpetrator? Many of the articles in this magazine attest to these and other the challenges of accountability and prosecution in northern Uganda.

I wish to thank every contributor and members of JRP staff for this month’s publications. 

Boniface Ojok,

Programme Coordinator