Uganda is undoubtedly a nation with a colourful history. Following its independence from British Rule, Uganda has suffered a number of intra-state conflicts, including military coups, dictatorships and armed rebellions which, in the last 30 years, have claimed the lives of almost one million people as a direct result of the violence or its aftermath and have led to the displacement of over 1.8 million lives. It has been involved in many conflicts, including the Ugandan Bush war (1981-1986), both the first and second Congo wars (1996-1997 & 1998-2002) and since 1987 has been engaged in an active conflict with the Lord’s Resistance Army (LRA) headed by Joseph Kony.
Uganda achieved much international recognition by the international community as an African state during the rise and fall of the Idi Amin regime (1971-1979). During this regime, many atrocities were committed by Idi Amin and his loyal followers, including mass executions upon the Acholi and Lango, Christian tribes that had been loyal to the ousted Prime Minister Obote and the mass expulsion of Uganda’s Asian population, which numbered between 50,000 and 70,000, resulting in a collapse of the economy.
Moreover, the Idi Amin regime symbolised many of the problems that Uganda faced and has continued to face for many years, including corruption at the Judicial and Legislative levels, clear human rights violations and a clear failure of key state-controlled institutions including the armed forces and police. Furthermore, following the fall of Amin, population-based surveys on attitudes about peace, justice and social reconciliation have shown that many citizens of Uganda expressed a clear desire to know exactly what happened, a system of ‘truth telling’. This has also been expressed by victims of the current conflict with the LRA. Yet, a comprehensive and inclusive national process of truth-telling does appear to be in existent as far , which could have future ramifications, leading to a furthering of social and political issues. As the International Centre for Transitional Justice (ICTJ) states:
‘A history of unaddressed massive abuses is likely to be socially divisive, to generate mistrust between groups and in the institutions of the State, and to hamper or slow down the achievement of security and development goals’.
Evidence of such has been shown by the current relationship of the Acholi people with the Ugandan Government; despite suffering under the hands of the Lord’s Resistance Army(LRA), many of the Acholi (Northern Ugandan) people feel unable to turn to the government for several reasons, including a mistrust due in part to the Amin regime, out of a feelings of marginalisation, brought about by their supposed beliefs in a lack of consideration for the Acholi people by the Ugandan government, in particular due to beliefs of the ‘vindictiveness’ of President Museveni upon their people.
However, evidence suggests that Uganda has begun a journey of ‘transitional justice’; with some redressing of victims, institutional reforms, and the strengthening of the democratic rule of law and this may go some way to solving Uganda’s problems. Nevertheless, Uganda is still a conflicted state with many social and political issues, as is highlighted by the recent presence of the LRA and other current intra-state conflicts. Furthermore, one may consider to what extent a transitional justice policy has been applied in the context of Uganda and whether it has helped solved the problems that the country faces. Therefore, this paper will attempt to address the following question:
Within a global trend where transitional justice is put forward as ‘the solution’ in dealing with a violent past, to what extent have its elements been applied, and to what extent has it been a solution, in Uganda?
Definitions of Key Terms
Transitional Justice
In order to assess the application and possible problem solving of transitional justice in Uganda, we must first understand what is meant by the term. According to the International Centre for Transitional Justice (ICTJ), ‘Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses’ . The ICTJ further defines the core elements of a transitional justice policy as:
1) Criminal prosecutions, particularly of those deemed most responsible;
2) Reparations through which governments recognise the harm suffered and therefore take steps to remedy this, often through such gestures as material elements (cash payments or health services) as well as symbolic aspects (such as public apologies or days of remembrance);
3) Institutional reform of abusive state institutions such as armed forces, police and judiciary, to remove ‘ by appropriate means ‘ the structural machinery of abuses and prevent reoccurrences of serious human right abuses and impunity;
4) Truth commissions which investigate and report on patterns of abuse and which recommend changes and help us understand the underlying causes of serious human rights violations.
As this is a comprehensive and working definition of what is meant by ‘transitional justice’ this is the definition we will be working with throughout this paper. Although they are generalised principles, we will discuss the core elements of a transitional justice policy, as defined above, but comparing them to the specific Ugandan context, to see how well they work.
Solution
The term ‘Solution’ generally refers to ‘a means of solving a problem or dealing with a difficult situation’. In the context of this paper, by the use of this term we aim to consider whether the application of the core elements of a transitional justice policy in Uganda (if this is indeed the case) has helped to remove the problems and causes of Uganda’s’ violent past, therefore making transitional justice a solution, or whether it has in fact failed to do so and thus has allowed further exacerbation of its historical social and political problems.
Criminal Prosecution of Those Deemed Responsible
In order for transitional justice to be fulfilled, there must be prosecution of those deemed responsible for the atrocities that have occurred. In the context of Uganda, it is difficult to fully assess the extent to which this element of transitional justice has been fulfilled.
There have been several special mechanisms established to try alleged perpetrators of Uganda’s most severe crimes, the first of which originated in the Juba Peace Negotiations between the government of Uganda and the LRA. These peace talks showed genuine attempts by the Ugandan government to bring about the prosecution of those deemed responsible, highlighted by the talks resulting in the preamble to the Agreement on Accountability and Reconciliation of 2007, Article 6 of which stipulated that the ordinary courts of Uganda will have ‘jurisdiction over individuals who are alleged to bear particular responsibility for the most serious crimes, especially crimes amounting to international crimes, during the course of the conflict’. This particular article of the agreement is important as it shows that the Ugandan government was trying to give power to not just the high courts but also to the lower courts and in doing so it mobilized many more aspects of the judicial system; there were many more judicial courts working to prosecute those deemed responsible increasing the chances of successful prosecutions.
Furthermore, in July 2008, the Principal Judge of the High Court of Uganda established the War Crimes Division (WCD), which was created to conduct the trials of ‘serious crimes’. This was further complemented by the establishment of the International Crimes Division (ICD) by the Chief Justice of Uganda in May 2011. However, the creation of these two Ad Hoc divisions had two very different effects on the process of prosecuting those responsible. With regards to the WCD, the effects were largely positive. By granting the War Crimes Division the control of the trials of ‘serious crimes’, the prosecution of the higher level ranking LRA officers is more heavily focused in a single area, rather than being spread in lesser concentrations through Uganda’s ordinary courts, as was the case previously due to Article 6 of the Agreement on Accountability and Reconciliation of 2007. At the same time, it frees up these ordinary courts to focus on a wider range of issues, including the reconciliation of low ranking LRA members, who have decided to return home under the Amnesty act, which, whilst being a landmark act aimed at reconciliation, has subsequently proven to be problematic for the prosecution process.
In 2000, at the height of the conflict between the Uganda’s People’s Defence Force (UPDF) and the LRA in northern Uganda and other rebel groups in the West Nile region and western Uganda, the Ugandan Parliament enacted the Amnesty Act, which provided amnesty to all Ugandans who renounced the rebellion against the government of Uganda and met certain requirements. Individuals whose actions fall under the categories listed in section 2(1) of the Act would not be ‘prosecuted or subjected to any form of punishment for the participation in the war or rebellion or for any crime committed in the cause of the war or armed rebellion.’
In many ways this act went some way towards aiding the process of transitional justice and ending the violence and problems that Uganda had. Importantly, it reflected the desires of the North Ugandan Communities which have undoubtedly been the communities hit hardest by the conflicts of the last three decades. A report undertaken by the Office of the United Nations high commissioner for human rights concluded that Ugandan Public opinion was in favour of reconciliation, over punishment. Thus, such a policy was in line with the public opinion. Furthermore, many of the LRA’s fighters were abducted as children, meaning they would have acted of duress, and there is the possibility that over time, they felt they could not return home, partly out of fear of being prosecuted; at least at a national level this act solved that issue. Therefore, in some ways, granting amnesty is beneficial for the process of reconciliation as it includes both victim and perpetrator and there is the argument that it is much more likely to encourage fighters to stop doing so, and to come forward, than would be the case under an act aimed simply to seek and prosecute them.
However, the problem with the Amnesty act is that it undermined the ICD and has allowed key perpetrators to escape punishment. This was highlighted by the case of LRA leader Thomas Kwoyelo, the first LRA rebel leader to be tried for war crimes by the ICD, in July 2011. Whilst in detention, Kwoyelo applied for amnesty under the amnesty act, as was his right. Under section 3 (2) of this act, the Directorate of Public Prosecutions (DPP) was supposed to then notify the amnesty commission of whether or not Kwoyelo was eligible for amnesty. However, they did not respond and instead initiated criminal proceedings against him.
Not only did this show key failures to follow simple legal protocol at the highest level of the Ugandan judicial system, but its effects were damaging for the prosecution of this case. Due to the fact they did not notify the amnesty commission, Kwoyelo’s defence raised an objection concerning the constitutionality of the case. When this case was then heard in the Constitutional Court, the defense name several other senior LRA commanders, such as Kenneth Banya and Sam Kolo, who had been granted amnesty certificates even though, like Kwoyelo, they had held senior command positions in the LRA (ref). On September 22, 2011, the judges of the Constitutional Court agreed with the submission of Kwoyelo’s defense claiming that his constitutional rights had been violated by the DPP when they failed to process his amnesty certificate and that he had acquired the legal right to amnesty under section 3 of the Amnesty act. As a result of this, Kwoyelo was not convicted of the crimes for which he had been charged with, including willful killing, taking hostages and destruction of property (Uganda’s Geneva Conventions Act).
This is just one example of a number of cases in which those deemed responsible of serious crimes in Uganda have found legal ‘loopholes’ out of prosecution. The decision of the Constitutional Court in the Kwoyelo case highlights the conflicting approaches to transitional justice in Uganda and the dilemma of pursuing criminal accountability while a general amnesty remains in place. Furthermore, it reflects a seemingly obvious truth; that whilst the Ugandan judiciary is unable to stop such events from occurring, it is therefore, unable to fulfill the first criteria of a transitional justice policy; ‘criminal prosecution of those deemed responsible’, as stated by the ICTJ.
On the other hand, prosecution of those deemed responsible may be an important element of a general transitional justice policy, but in the specific context of Uganda, it is much more difficult to fulfill. One must take into considerations the difficulties faced prosecuting members of the LRA for example, a task difficult for several reasons. Firstly, in terms of high ranking commanders, it has been a near possible task. Due to them hiding in ‘the bush’, coupled with the Ugandan governments’ lack of resources, they are extremely hard to track down and as shown by the inability of both Ugandan and International forces to reprimand Kony, they are even harder to capture and prosecute. Secondly, most combatants were abducted as children. Therefore, in when they are captured, their defence attorneys often claim ‘duress’ in their cases which has proven to be a successful defence for them to use: there have been nearly 500 cases since 2005 wherein the defence has successfully pled for Duress, drastically reducing the sentences of prosecuted LRA members, if not enabling to completely escape from prosecution. Furthermore, as is a paradigm of traditional African communities, the majority of Ugandan’s, including even the Acholi community in northern Uganda who were hardest hit by the LRA, have expressed a desire to initiate a process of reconciliation, rather than a process of prosecution. A 2009 report issued by the Centre of African Studies confirmed this, showing that 64% of Northern Ugandan participants preferred a ‘soft’ response rather than an outright pursuit for vengeance and prosecution of perpetrators.
Unfortunately, such a preference for reconciliation has several implications for the prosecution process: 1) they courts cannot always rely on witnesses to come forward. Of course, they may not come forward for typical reasons, (being frightened of reliving their experiences or fear of reprisal from those who they are speaking out against). However, evidence shows that they also don’t come forward because they believe in reintegrating the accused back into the community rather than seeking prosecuting. This is perhaps not surprising. After all, many Ugandans are parents or family members of low ranking LRA members, the vast majority of which were abducted at young ages and thus are likely to be reluctant in coming forward to help prosecute their own children. Regardless of the motives, their reluctance to aid the prosecution process hampers its effectiveness, leading to low rates of prosecution, especially of low-Mid ranking LRA members.
To conclude this section, Uganda is taking positive steps forward to prosecuting those deemed responsible for serious crimes, as shown by the creation of several prosecuting divisions such as the ICD and WCD. However, the amnesty act still appears to be more harmful to this process than helpful. Not only does it allow for key perpetrators to exploit the legal loopholes it creates, but it does not allow for the participation of victims and thus cannot lead to true reconciliation as it shields alleged perpetrators, creating impunity, whilst ignoring victims. Such a process is likely to foster anger and exacerbate already existing tensions. Thus, in order for the alleged to be prosecuted effectively, the focus should shift from granting amnesties to promoting accountability. As one Acholi citizen said to a worker of the United Nations High Commissioner for Human Rights, ‘We must prosecute now and reconciliation will come’. Only when this shift in focus occurs will this criterion of a transitional justice be fulfilled in Uganda.
Reparations
During the last 30 years alone, Ugandans have endured episodes of violence and human rights abuses across successive political regimes and from not only rebel groups such as the LRA, but from government forces as well. Thus, during the period of transitional justice, the government, victims and the Ugandan society as a whole are now considering how to move forward with a transitional justice policy that includes reparations for victims in the North, given the extremities and number of violations that were committed. In 2007, the Ugandan government pledged to promote the redressing of victims in the Agreement on Accountability and Reconciliation signed in Juba, which declared that ‘it is essential to acknowledge and address the suffering of victims, paying attention to the most vulnerable groups, and to promote and facilitate their right to contribute to society.’
Despite this pledge however, there appears to be very little coordinated response that directly addresses the reparative needs of victims, to date. In 2006, prior to the Juba Agreement, the Refugee Law Project (RLP), within Makerere University School of Law, drafted a National Reconciliation Bill that focused primarily on truth telling, but also included reparations measures, however, it was never taken up by government .In June 2012, the United Nations Office of the High Commissioner for Human Rights funded two seminars in the districts of Kitgum and Gulu with victims, local government and religious leaders with the intentions of discussing with these participants their views on how best reparations ought to be distributed (timescale, magnitude, type of reparation etc.). In these seminars, these participants came to a conclusion similar to that of the Ugandan government, but one which they have been reluctant to admit: that there is a need for both short-term and long term reparations in Uganda.
However, when one considers the response of the government to these expressed desires of reparation, it is visible to see a distinct lack of action, if not a direct lack of will to bring about substantial reparations.
Furthermore, there are many different areas of reparations which need to be addressed and, upon reflection, some areas may be more complex than they first appeared. Take for example, victims of sexual and gender violence. During the conflict with the LRA, thousands of girls have been abducted and forced to carry out a range of roles, including labourers, combatants or becoming sex slaves, suffering from sexual violence. Of course, with this in mind, no one would doubt that they deserve some sort of reparations. However, young girls are not the only victims of gender violence: men were also abused, a fact which may have received some attention from the media coverage, but little attention at the national policy level. The psychological impact of sexual and gender violence may be similar between both male and female victims, but it will not be the same. At the same time, two truths are noticeably shared by cases of both genders, 1) That both suffer stigma and discrimination by their own communities as a result of the sexual and gender violence; 2) These victims’ needs are complex and go beyond immediate understandings of violence. However, there is little evidence as far to suggest that the Ugandan policy makers have seriously took this distinction into consideration and therefore, it unlikely that they will give satisfactory reparations to these particular victims.
On the other hand, it would be unfair to say that the Uganda government has done nothing in the way of reparations in Uganda. The creation of the Peace, Recovery and Development Plan for Northern Uganda (PRDP) and also of the Northern Uganda Social Action Fund (NUSAF) have improved the welfare of many citizens, for example, by bringing infrastructural developments to areas in Northern Uganda (ref reparations).
It seems that an underlying problem preventing this reparative element of a transitional justice policy from being successfully fulfilled is what can be described as a mixture of the slow pace of national planning for reparations and the absence of the government’s recognition of its role and responsibility for the harms that occurred. When one looks to the Museveni government for example, there is an evident lack of responsibility for the brutality and abuses committed by the UPDF. Such a lack of acknowledgement allows for the government to evade scrutiny and ‘save-face’ by never having to admit their mistakes made, however, it also means that they refuse to A lack of political cohesiveness and efficiency in the planning process has meant that financial reparations at the national level are not given out quick enough. Yet, studies show that there is a dire need for both short term and long term reparations in Northern Uganda, if the country is to heal from its past injustices.
Furthermore, there is a huge economic burden placed upon the government when it comes to economic reparations. Given the number of victims affected and the magnitude of economic losses, due to a multitude of factors (displacement, looting etc.) , a reparations program that tries to compensate for economic losses has been impossible to fulfill and what has become obvious is that the Uganda government simply does not have the economic resources needed. Hence, if it is ever to provide reparations to the best of its abilities, the Ugandan government will have to consider narrowing the types of violations, limiting the amount of compensation to what it can afford to deliver over time, and give priority to non-compensatory forms of reparations.
Institutional Reform
Many people will be aware of the atrocities committed by the LRA. However, victims have also recounted abuses being widely committed by the UPDF, including looting and forced displacement (Beyond The Hague).
Truth Commissions
One of the most consistently stated priorities of victims in northern Uganda has been their desire for truth, to know what happened in their communities and who was responsible. ‘Such processes are not intended to attach criminal accountability, but rather to establish an historical record, providing a cathartic outlet for victims and perpetrators alike to tell their stories'(ref ictj). Truth telling, however, is not merely a social concept, but a legal one too; it is enshrined in a number of non-binding resolutions, like the UN Updated Principles on Impunity, which state that ‘every person has the inalienable right to know the truth about past events’ (UN updated principles). However, in the context of Uganda, it is clear that this is an area of transitional justice in which there have been gross areas of failure.
Uganda has shown several ‘attempts’ to address the severe human rights violations and disappearances. The first was through the 1974 Commission of Inquiry into the Disappearances of People in Uganda, which Idi Amin established to investigate the disappearances of people during the formative years of his regime.10 However, there is speculation over the genuineness of this process; it was constantly hindered by political interference, and intimidation prevented the implementation of the recommendations contained in the commission’s report.
A similar account seemed to have been evident during the Commission of Inquiry into the Violation of Human Rights, which President Yoweri Museveni established in 1986 when he came to power. Established to investigate human rights violations under past regimes and to establish a path towards national healing (11), it faced a multitude of problems. Just like the 1974 commission, this commission faced a challenge of lack of required political will and resources to execute its mandate effectively (ref ICTJ) , and its recommendations were never fully implemented.12 As a consequence, most of the perpetrators remain at large and have never been held accountable for alleged crimes, and many victims have never been recognized nor received justice (refICTJ). Thus, it is obvious to see that neither of these two commissions had any significant impact and played little to no part in the process of transitional justice which followed the atrocities prior and during these regimes.
However, it is important to make a distinction between the national and the local processes of truth telling and their respective effectiveness at achieving reconciliation and transitional justice. The attitudes of many African communities towards the differing roles that local and national institutions should play in the process of truth telling can have a great affect upon the outcomes of this process. According to the Justice and Reconciliation Project (JRP), Northern Ugandans, who have lived in the conflict-torn region for decades, have become all too familiar with insecurity and intimidation and do not readily trust government agencies preferring truth telling to take place at the local, sub-national level (ref JRP). A report by the Uganda Government’s ‘Justice, Law and Order Sector’ on traditional justice mechanisms, truth telling and national reconciliation also reiterates this, showing that communities affected by violent conflict preferred a ‘community based truth telling’ process led by institutions at the local level to address the intercommunity and inter-tribal conflicts that have taken place across the country 15 (Study report on Traditional Justice).
Indeed, truth telling as a means of achieving transitional justice has become an established tradition in communities in Northern Uganda. In West Nile, Acholi, Lango and Teso, participants of the JRP report pointed to several local reconciliatory rituals that were performed regularly in the past and that involved varying degrees of truth-seeking (ref JRP). In many ways, this local style truth telling process has proven to be more effective than the national level process. It is a remedial process, based on the intentions of being beneficial for both victims and perpetrators alike.
Furthermore, it involves all three of the aforementioned parties in this process, which is an important distinction from the national processes of truth telling, which often neglects victims and the role that they can play in the process and instead focus on forcing perpetrators to tell the truth, rather than persuading them in an open, relaxed and fully inclusive arena of discussion. In addition, unlike national truth commissions such as those under Amin or Museveni, both of whom were aware of atrocities committed by members of their own government institutions (such as UPDF), those orchestrating truth telling at the local level are unlikely to have ulterior political motives; they do not have to fear the unearthing of hidden secrets which could upset their political positions, but can instead orchestrate these truth telling processes with clear, singular motives of reconciliation.
Indeed, one major problem which prevents this ‘truth telling’ element of the transitional justice policy being fulfilled at a national level is the arena in which this process would occur. In order to efficiently address the history of mass human rights abuses and violations, Uganda needs to of course bravely confront the underlying causes behind its past, but must do so in an unbiased and independent process. Therefore, with this in mind, we must consider: which model of truth telling process is best for Uganda? There does not appear to be much of a desire for a full South-African style model of a truth commission , yet this lack of will appears at a time when studies indicate that the desire for truth seeking in Uganda is strong and is a real priority by people in the regions affected (Phuong Pham et al).
Therefore, one can reasonably assume that this failure to provide an adequate mechanism of truth telling, to a Ugandan population which so evidently wants one, is likely to cause further problems. The longer it takes to deliver the truth, the more likely it is to produce, or at the very least prolong, feelings of anger and mistrust between the citizens, who feel their government are withholding vital information from them. Furthermore, despite the research showing that truth telling at the local level has been largely cathartic and effective, it is not as an entire process, (one which encompasses both local and national processes) and it is evident that this element of a transitional justice policy has yet to be fulfilled in the Ugandan context.
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