Zachary Ochieng'
21 April 2008
Nairobi — Following LRA leader Joseph Kony's demand for an explanation of the kind of justice mechanism he would undergo, the United States Institute of Peace says that detailed planning must begin to establish the judicial bodies created by the new agreement on accountability and reconciliation signed on February 18.
It also emphasises to address the inevitable social problems that will arise when thousands of former fighters from the Lord's Resistance Army return to live with villagers who were victims of their attacks.
On February 18, 2008 the Ugandan government and the LRA reached an agreement on accountability and reconciliation accord that would provide for prosecution in Uganda of rebel leaders responsible for atrocities committed over the course of the country's 22-year civil conflict.
The agreement also provides that lower level perpetrators will be held accountable by the traditional justice mechanisms of northern Uganda where much of the violence occurred.
So far, the focus has been on how to hold the top LRA leadership, indicted by International Criminal Court (ICC) for crimes against humanity, accountable.
While the Accountability Agreement emphasises that traditional reconciliation mechanisms practiced by communities in conflict-affected areas will play a large role in addressing the atrocities committed on the part of the LRA, many questions remain unanswered as to the capacity of these mechanisms to deal with the large scale atrocities including rape, kidnapping and mutilation that occurred throughout the LRA conflict.
Titled, "The justice Dilemma in Uganda", the briefing, authored by Scott Worden, USIP's rule of law programme adviser, provides a background of the conflict and ongoing attempts at peace, reflects the diverse views expressed during the consultations about justice priorities and offers recommendations on how to move forward with a comprehensive justice plan.
According to the briefing, no element of the agreement has been implemented yet, but it contains several promising provisions addressing the challenge of justice and accountability. First, the recently completed agreement on prosecutions states that "a special division of the High Court of Uganda shall be established to try individuals who allegedly committed serious crimes during the conflict."
This division will "have a registry dedicated to the work of the division and shall make arrangements to facilitate the protection and participation of witnesses, victims, women and children."
Given limited resources and the complexity of proving cases of mass atrocity, these trial proceedings will not resolve the majority of crimes committed, but would only apply to individuals "who are alleged to bear particular responsibility for the most serious crimes."
For the broader range of crimes, the agreement introduces a role for traditional, community-based justice mechanisms as "a central part of the framework for accountability and reconciliation" which the latest agreement indicated would be applied to lower-level perpetrators and those who have already received amnesty.
Finally, the agreement provides for a range of individual and collective reparations. But little has been done to date to develop an overall justice framework or to work through the particulars of any component thereof.
USIP's consultations revealed a wide range of conflicting opinions among stakeholders and policymakers as to both the demand for justice and the ability of various institutions to deliver it. In the north, there was a strong demand for peace at, almost, all costs. Many officials and observers the team spoke with had interesting ideas about possible paths to justice and reconciliation, but there is no consensus and many questions remain unresolved.
Overall, it was clear that the problem is large, complex, and requires significant attention.
Accordingly, beyond the provisions of the framework agreement, negotiators in Juba will have to recognize several legal and practical constraints in fashioning implementation mechanisms for accountability and reconciliation. For one, the ICC indictments have been controversial.
On one hand, they served to put pressure on the LRA by turning their leadership into international outlaws and making it more difficult for countries like Sudan to harbour and support the movement.
ICC engagement in the case was a crucial factor in weakening support for the LRA and moving them towards the current round of negotiations, and in then ensuring that the parties addressed the question of accountability mechanisms in the negotiations.
On the other hand, the indictments have arguably made negotiations with the LRA more difficult, because Kony has declared that he will not surrender until the ICC indictments are lifted. This stance has led many in the north to view the ICC as an obstacle to peace - at least, in the short term.
The ICC's current position is that the indicted individuals must be apprehended and tried by the international court and not in the courts of Uganda.
The ICC is also widely seen as biased because it has not indicted any military officials for what northerners perceive to be widespread abuses. This attitude, however, may reflect general ignorance among the public as to the ICC's mandate and jurisdiction as well.
Although government abuses against civilians have occurred, the ICC's jurisdiction only permits it to pursue crimes committed after July 2002, and the most significant of these abuses were perpetrated by the Ugandan military prior to that date.
The ICC has been investigating atrocities on an ongoing basis, and has stated explicitly that it will consider any crimes committed by government that meet its jurisdictional criteria.
Another key component of the justice picture is the Amnesty Act, which the Ugandan government enacted in 2000 as a response to popular demand to end the stalemated conflict.
The amnesty granted is exceptionally broad, stating that from 1986 onward "any Ugandan who has...engaged in war or armed rebellion against the government by either participating in combat, engaging in any other criminal activity connected with the conflict, or aiding or abetting insurgents shall not be prosecuted or subjected to any form of punishment" as long as they agree to renounce their affiliation with rebel groups.
Therefore, the state may not prosecute, even for such crimes as rape, mutilation, or murder, once amnesty has been given. The Amnesty Commission created to implement the law has no discretion to deny amnesty to any applicant meeting these basic criteria.
So far, 15,000 people have been granted amnesty under this law, more than half of them are LRA fighters.
Under a 2006 amendment to the amnesty law, the Minister of Internal Affairs can declare an individual ineligible if the parliament agrees, but this provision has never been invoked, even with respect to Kony and other ICC indictees.
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