Ugandan NGOs are calling for a major effort to fight impunity in Uganda, by setting up a special domestic court to bring the perpetrators to justice. The Ugandan government put its trust in the international community when it referred the situation in northern Uganda to the International Criminal Court in 2003. But NGOs claim a domestic as well as an international solution is needed to deal with the large number of suspects.
By Josephine Uwineza in The Hague
Tens of thousands of people, mostly children, have been abducted by the Lord’s Resistance Army during more than 20 years of conflict. They have been forced to fight or serve as slaves. Amputations of limbs, lips, and ears became one gruesome hallmark of LRA attacks on villages. In response, the Ugandan government moved around 2 million people into camps for the internally displaced, but they were repeatedly attacked by the LRA.
Arrest warrants for Joseph Kony and four other LRA leaders on charges of war crimes and crimes against humanity were issued in 2005, a year after the ICC prosecutor opened an investigation. Since then, two of the suspects have died, but Kony, Okot Odhiambo, and Dominic Ongwen remain at large and the LRA is still active, moving between the DRC, southern Sudan and the Central African Republic. The government and the LRA established a framework for a domestic criminal mechanism in an “Agreement on Accountability and Reconciliation”, signed in 2007.
But Joseph Kony balked when it came time to sign the Final Peace Agreement a year later.
However, the government pledged to implement all of the Juba protocols, including the provisions on domestic justice for atrocities committed during the conflict – even though there was no final agreement.
An International Crimes Division in Uganda’s High Court was set up by the government in 2008 as a result, as well as dedicated investigations and prosecution teams.
Then the International Criminal Court (ICC) Act was adopted by the Ugandan Parliament in 2010. The act makes no mention of the International Crimes Division (ICD). But it does give the High Court (of which the ICD is a part) first-instance jurisdiction over cases of genocide, war crimes and crimes against humanity.
Under current Ugandan law victims can sue perpetrators for damages in a civil court. But the act contains no provisions for victims’ representation in the courtroom. ICD judges are interested in examining how to include the practice of victim participation into Ugandan court proceedings. For the international crimes committed before 2010, the Rome statute provisions do not apply. Only the 1949 Geneva Conventions, the 1977 Additional Protocols, and the Genocide Convention will be applied. It appears from jurisprudence that Ugandan judges had been reluctant to apply rules that have not been properly implemented into their national legal system. Also, even though some judges are open to customary international law rules, the general practice requires all these laws to be domesticated.
Progress against impunity
Uganda started its first war crimes trials in July this year, before the ICD in Gulu High Court. This first indictment is against a mid-level LRA figure named Thomas Kwoyelo, charged with 12 counts and 53 alternative counts drawn from the Geneva Conventions Act and the Penal Code Act including murder, causing grievous harm, kidnap with intent to murder, attempted murder and inhumane treatment.
But the defence challenged the admissibility of the case based on Kwoyelo’s application for amnesty. This amnesty policy was to encourage reinsertion into society and was granted in relation to crimes committed in the rebellion. Unless a person had committed other crimes, the amnesty would not be granted.
In the case of Thomas Kwoyelo however, the Amnesty Commission failed to respond to his application. When the matter was put before the Constitutional Court, it ruled in Kony’s favour saying Uganda was deprived of its international obligation because “the Act creates a provision for the minister of internal affairs to make certain persons ineligible for amnesty.” As a result, the Court ordered an end to the trials. The Attorney General is in the process of appealing against the decision, to the Supreme Court. But Joyce Freda Apio, coordinator of the Uganda Coalition for the ICC (UCICC), has little faith in the bid for a reversal of the decision. She believes this appeal “is very unlikely to overturn the decision of the Constitutional Court.”