When I chanced on Jean De La Croix Tabaro’s article on the dilemma of children born of rape in the Rwandan genocide, I couldn’t help but think about our own children in northern Uganda born as a result of rape, forced marriage, forced pregnancy and sexual slavery during the 20 year conflict. At the height of the conflict, thousands of women and girls were abducted and forced to become wives to rebel commanders while in captivity and as a result they begot children by these commanders. At the same time, many of the women and girls who were displaced in Internally Displaced Peoples’ camps were raped and forced to become wives to Government soldiers wherein they begot children.

When the conflict ended, the women returned home with these children amidst challenges way too remote for mainstream transitional justice (TJ) to address such as identities issues i.e. tracing for the identities of the paternal clans/families of the children. This has been complicated more by the fact that the “bush husbands” did not reveal to the women their real names, clans or the physical locations of their homes. The women and girls who lived in IDP camps are facing similar challenges. All the government soldiers (UPDF) who raped and forced the women and girls into “marriage” have since then been re-deployed to other locations or are dead, in both circumstances automatically shifting parental responsibility on the women who survive by engaging in petty activities to barely make ends meet, having lost the opportunity to earn an education in order to favourably compete for rewarding jobs.

Recently, the Government of Uganda through the Justice, Law and Order Sector (JLOS) released a draft national TJ Policy in response to Uganda’s legacy of past violations and to provide accountability and reconciliation through a combination of justice mechanisms. Whereas the policy makes reference to children as a vulnerable group, this reference seems to mirror child survivors per se but not children born as a result of the violations and abuses. This lack of distinction removes children born in captivity/displacement out of the picture thus leaving their needs and concerns unmet, which seems like a time bomb ticking away.

The identity of many children born in captivity or displacement has not been established, so acquiring something as simple as a birth certificate for them is a challenge for them. Likewise since the identity of their fathers, clans, families and place of origin is unknown all the responsibility for these children is placed on their mothers who cannot adequately provide for their basic needs such as shelter, feeding, clothing, education and medical care. This in effect has left them without hope.

In order to respond to the specific needs of the children born in captivity/displacement, it is imperative for Government to address the issue of identity of the children. A policy should be made to expedite and simplify registration of the children for purposes of obtaining birth certificates since the process has proved to be a nightmare for women survivors who do not know the details of the fathers of their children besides the date, month, year and place of birth. In implementing the reparation mechanism, it is recommended that the children born in captivity/displacement should be considered in a separate group to ensure that their needs and concerns are addressed otherwise they might end up picking bread crumbs from under the tables.

When the Rome statute entered into force on the 1^st of July 2002, the International Criminal Court was born with the objective to help end impunity for perpetrators of the most serious crimes of concern to the international community. The said crimes include war crimes, crimes against humanity, genocide and crime of aggression. This move by the international community was particularly embraced by many African countries which without much ado pledged their support for it by signing the treaty their by becoming member states. The following chronicle may be useful background to the ensuing discussion.

The African states were at the forefront of discussions and endorsement of a permanent international criminal court.  Senegal was the first country to ratify the Rome statute. In fact we have over 33 member states of the Rome statutes from Africa,  making it the continent with the biggest block membership.

In December 2003, the President of the Republic of Uganda, Yoweri K. Museveni took the decision to refer the situation concerning the Lord’s Resistance Army (LRA) to the office of the Prosecutor of the ICC, this led to the issuance of warrants of arrest for the top five commanders of the LRA – Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. Vincent Otti and Raska Lukwiya have since died leaving the other three still at large.

The Democratic Republic of Congo (DRC) also referred its situation to the office of the Prosecutor where five cases were brought before the relevant chambers to wit Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga, Mathieu Ngudjola Chui, Calixte Mbarushimana and Sylvester Mudacumura. Thomas. Lubanga has since been convicted, Germain Katanga remains in custody while Mathieu Ngudjola has been acquitted. And of recent Ntaganda surrendered to the ICC and is now facing trial in The Hague.

In December 2004, the Government of the Central African Republic (CAR) referred the situation in CAR to the ICC, after which the prosecutor opened an investigation in May 2007 resulting in The Prosecutor v Jean Pierre Bemba Gombo.

Following in the footsteps of her “sister countries” on the 16^th Jan 2013, Mali referred the situation in West African nation to the ICC. This led to the opening of an investigation into alleged crimes committed on the territory of Mali since 2012.

Although Cote d’Ivoire is not a party to the Rome statute, it accepted the jurisdiction of the ICC on the 18^th April 2003 which was reconfirmed on both 14^th Dec 2010 and 3^rd May 2011.

It should be noted that the above were willfully referred to the ICC by the various African states based on the perception that the ICC would provide a lasting solution to ending internal and external threats to governments by warding off would be party spoilers (rebels with intentions of toppling governments and creating instability).

A change of attitude towards the ICC came when the Court issued warrants of arrest for sitting Sudanese president Omar Al Bashir in 2008 for crimes committed in the Darfur region. In 2010, the court agreed to the prosecutor’s request to open investigation in Kenya resulting to the indictment of Uhuru Kenyatta and William Ruto who are currently the president and deputy president of Kenya. In 2011 and 2012 arrest warrants were issued for the former president of Cote D’ Ivoire Laurent Gbagbo and the countries’ First Lady Simone Gbagbo respectively.

Since then, African leaders have come together as one under the African Union to condemn the once desirable ICC and accuse it of conducting a “race hunt”. In their search for an escape, they are now proposing an ‘African’ response to international crimes in the ambit of existing regional legal structures like the African Court on Human and Peoples’ Rights. The question is whether this is a move motivated by genuine complaints of discrimination or protection of individual interests. You be the judge!

A case of courting survivors of conflict or accountability at last?

The Government of Uganda through the Justice Law and Order Sector (JLOS) has reached a milestone by pulling a draft National TJ Policy, a first of its kind in Africa and the world at large. This policy is in response to Uganda’s legacy of past violations and seeks to provide accountability and reconciliation through a combination of justice mechanisms including formal criminal prosecutions, traditional justice, truth-telling and reconciliation, reparations and amnesty.

The policy comes alive in the interventions proposed in the above mentioned TJ mechanisms. The first pertains to the formal justice process which relates to securing victims’ participation in the trial process. The policy proposes to ensure witnesses to trials are protected, borrowing from precedents of witness protection from countries like the US that have formal witness protection programmes. Witness protection as it is involves much more than just posting a police officer or a security agent to the home of a witness for purposes of ensuring his or her protection before, during and after trial, not to mention the financial resources it requires. Considering that war crimes trials involve no less than hundreds of witnesses who in most cases come from the same community as the perpetrators facing trial, this would automatically dictate that witnesses be given new identities and  be relocated forthwith –  all of which have deep financial implications. Is the Government prepared to employ other evidentiary techniques like voice recordings bearing in mind the rights of an accused person to confront his or her accuser?

The TJ Policy under this mechanism further proposes to remove barriers to access to justice by victims. As we try to get inside the heads of the drafters of the policy, we are inclined to suppose this to include putting an end to impunity to sexual and gender based violence (SGBV) committed during conflict by charging perpetrators of sexual violence with SGBV crimes besides other war crimes.

Under the truth-telling process, Government proposes to establish and implement a national truth telling process which should consider the unique gender needs and concerns of the survivors such as conducting separate truth telling sessions for women and male survivors of sexual violence and child victims.

Under reparations, Government proposes to establish and implement a reparations programme for victims of conflict which too is expected to respond to the unique gender needs and concerns of survivors following their commitment to mainstream gender in to the proposed mechanisms. It is expected that such a programme will have due regard to unique circumstances such as the needs of women survivors who returned home with children born in captivity or in internally displaced peoples’ camps as a result of forced marriage, rape, forced pregnancy or sexual slavery and male survivors who lost all their property in the wake of the conflict thus rendering them incapable of providing for their families and child headed families among others.

The traditional justice system under this draft policy has been recognised by the Government as a tool for conflict resolution, it remains to be seen how they intend to operationalise it especially where it involves victims and perpetrators hailing from different cultural settings or background. How does the Government of Uganda intend to harmonise the different cultural practices?

Acknowledging that each of the mechanisms have pros and cons, the notion of complimentarity comes in handy. In essence the mechanisms are meant to complement each other to ensure accountability and reconciliation. The challenges notwithstanding, the draft TJ Policy seems like the most appropriate response to past violations of human rights in Uganda, we only pray that this is not another case of courting victims, but rather spells accountability for victims of conflict.