Retributive Vs Restorative Justice in the Northern Uganda Conflict a Case for Selective Justice; the Application of Different Forms of Criminal Justice

Retributive Vs Restorative Justice in the Northern Uganda Conflict A case for selective justice; the application of different forms of criminal justice

Inaugural-Dissertation zur Erlangung der Doktorwürde der Philosophischen Fakultät der Albert-Ludwigs-Universität Freiburg i.Br.

Vorgelegt von Nathan Muwereza aus Bulumela, Uganda

Summer Semester 2013

Erstgutachter/First Supervisor: Prof. Dr. Dr. h.c. Hans-Jörg Albrecht Zweitgutachter/Second Supervisor: Prof. Dr. phil. Trutz von Trotha

Vorsitzende/r des Promotionsausschusses Der Gemeinsamen Kommission der Philologischen, philosophischen und Wirtschafts- Und Verhaltenswissenschaftlichen Fakultät: Prof. Dr. Bernd Kortmann

Datum der Fachprüfung im Promotionsfach: 03.07.2013

Abstract This thesis is a product of a study concerning forms of justice and the general complication of dealing with criminality in the northern Uganda conflict as well as the restoration of social order. As communities struggle to reconstruct their social order (after undergoing an atrocious conflict for over two decades), justice must be administered. However, a mixture of attitudes of victims to perpetrators, the actions of perpetrators and those supporting them all created complications. Moreover, applicable forms of justice (local traditional forms, national and the International Criminal Court) took a parallel rather than a complementary role in addressing the aftermath of the conflict. Using a triangulation of methods of data collection (that included intensive face-to-face interviews, observation and documentary analysis), data was collected. It was analyzed with the help of computer aided qualitative data analysis software called MAXQDA. Findings indicated that atrocities were committed by all conflicting parties; the measure of which can be only revealed by victims to courts of law if they feel well protected and assured of their security and/or safety. Findings further showed that many of the perpetrators (on the side of rebels) were victims of the same atrocities. Thus, the separation between victims and perpetrators is very difficult even at local community levels. The victim communities were caught between formally retributive and informally restorative forms of justice. At the same time, retaliatory feelings were high. Latent conflicts and their triggers are wide-spread, and people live in a precarious region, prone to more conflicts and wars. The conclusion was that traditional restorative justice approaches need not to be perceived as parallel alternatives to retributive punitive justice approaches. Rather, a selective interplay between them may not only heal affected communities but also tolerate no impunity.

Zusammenfassung Diese Dissertation ist das Ergebnis einer Studie über Formen der Gerechtigkeit bzw. des Rechts und die Schwierigkeiten im Umgang mit der Kriminalität im Rah-men des NordUganda Konflikts sowie mit der Rekonstruktion der sozialen Ord-nung. Da die Gemeinden darum kämpfen, ihre soziale Ordnung wiederherzustellen (nachdem sie einen über zwei Jahrzehnte andauernden grausamen Konflikt durchlebt haben), muss nun Recht gesprochen werden. Allerdings führt die Mischung aus den Einstellungen der Opfer gegenüber den Tätern, den Handlungen der Täter und derer, die diese unterstützen, zu Komplikationen. Darüber hinaus haben die einschlägigen Formen des Rechts (lokale traditionelle und nationale Formen sowie der Internationale Strafgerichtshof) eher parallele als sich gegenseitig ergänzende Rollen bei der Bewältigung der Folgen des Konflikts angenommen. Mittels einer Triangulation von Methoden der Datenerhebung (bestehend aus intensiven Leitfaden- Interviews, Beobachtung und Dokumentenanalyse) wurden Daten gesammelt. Die-se wurden mit Hilfe einer computerbasierten qualitativen Datenanalyse- Software namens MAXQDA analysiert. Die Befunde deuten darauf hin, dass Gräueltaten von allen Konfliktparteien in einem Ausmaß begangen wurden, dass die Opfer nur bereit sind, über diese grausamen Taten vor Gericht zu sprechen, wenn sie sich gut geschützt fühlen und ihnen Sicherheit garantiert wird. Die Ergebnisse zeigen außerdem, dass viele der Täter (auf der Seite der Rebellen) ebenfalls Opfer der gleichen Gräueltaten geworden sind; die Unterscheidung zwischen Opfern und Tätern ist daher sehr schwierig, auch auf kommunaler Ebene. Die Opfergemeinschaften sind zwischen formellen, bestrafenden und informellen, wiedergutmachenden Formen von Recht gefangen. Gleichzeitig sind die Vergeltungsbedürfnisse stark aus-geprägt. Latente Konflikte und deren Auslöser sind weit verbreitet, und die Menschen leben in einer prekären Region, die anfällig für weitere Konflikte und Kriege ist. Die Schlussfolgerung ist, dass die traditionellen restorative justice Ansätze nicht als parallele Alternativen zu den strafrechtlichen, retributiven Ansätzen wahr-genommen werden sollten. Vielmehr könnte ein selektives Zusammenspiel zwischen ihnen nicht nur betroffene Gemeinden heilen, sondern würde wohl auch keine Straffreiheit dulden.

TABLE OF CONTENTS Title Page ……………………………………………………………………… Abstract ………………………………………………………………………..I Table of contents …………………………………………………………...... III Declaration …………………………………………………………………….VI Dedication ……………………………………………………………………..VII Acknowledgements ……………………………………………………………VIII Structure of the thesis …………………………………………………………..IX

PART I: BACKGROUND, LITERATURE AND METHODOLOGY...……1 1.0 Chapter One: Background to the Study…...... 1 1.1 Introduction……………………………………………………………...……1 1.2 Contextual background……………………………………………………….4 1.3 Historical background………………………………………………………...6 1.4 Theoretical background………………………………………………………11 1.5 The study problem……………………………………………………………16 1.6 The study aim and objective…………………………………………...... 17 1.6.1 The research question………………………………………………17 1.7 Relevance and contribution………………………………………………….18 2.0 Chapter Two: Literature Review ……………………………...... 20 2.1 Introduction…………………………………………………………………20 2.2 Atrocious actions committed………………………………………………..20 2.3 Perpetration and perpetrators of atrocities in northern Uganda…………….25 2.4 Victims and their attitudes………………………………………………….31 2.5 Forms of justice and choices………………………………………………..33 2.6 Restorative justice ………………………………………………………… 38 2.6.1 Accepting the reality ………………………………...... 41 2.6.2 Taking and accepting responsibility …………………………...... 42 2.6.3 Repentance or change ……………………………………...... 43 2.6.4 Reconciliation …………………………………………………...44 2.6.5 Restitution ……………………………………………………….45 2.7 Retributive Justice …………………………………………………………46 2.7.1 Relationship between restorative justice and retributive ………………...47 2.8 Restorative justice in Uganda …………………………………...... 49 2.8.1 Some examples of restorative justice applications …………...... 50

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3.0 Chapter Three: Methodology …………………………………………...53 3.1 Introduction ………………………………………………………………..53 3.2 The scope of the study……………………………………………………..53 3.2.1 Geographical scope……………………………………………………....54 3.2.2 Study population …………………………………………………………55 3.2.3 The sample and sampling procedure …………………………………….55 3.2.4 Conceptual scope ………………………………………………...... 59 3.3 Data collection methods and instruments …………………………………60 3.4 Method of data analysis ……………………………………………………62 3.4.1 How MAXQDA was used ……………………………………………….62 3.5 The study challenges and solutions ………………………………………..63 PART II: DATA PRESENTATION AND ANALYSIS ………………...... 66 Introduction ……………………………………………………………………66 4.0 Chapter Four: The Conflict’s Atrocious Actions ……………………....67 4.1 Killings and/massacres …………………………………………………….69 4.1.1 Killings by the Lord’s Resistance Army rebels…………………..70 4.1.2 Killings by Government soldiers ……………………...... 73 4.2 Torture ……………………………………………………………………..78 4.2.1 Torture by the Lord’s Resistance Army rebels …………………..78 4.2.2 Torture by government soldiers and military operatives……...... 80 4.3 Displacement and inhumanity in camps…………………………………….81 4.4 Theft and robbery …………………………………………………………..86 5.0 Chapter Five: Victims and their Perceptions or Attitudes …………….88 5.1 Attitudes towards Lord’s Resistance Army fighters……………………….90 5.2 Attitudes towards government …………………………………………….92 5.3 Attitudes towards forms of justice …………………………………...... 95 6.0 Chapter Six: Forms of Justice and Choices……………………………..96 6.1 Introduction …………………………………………………...... 96 6.2 Local traditional form of justice ……………………………...... 97 6.3 National formal courts …………………………………………………....106 6.4 The international criminal court ………………………………………….110 6.5 Crosscutting issues …………………………………………...... 113

PART III: SUMMARY, RECOMMENDATIONS AND CONCLUSION...121 7.0 Chapter Seven: Summarizing the Harmony between Forms of Justice.121 7.1 Restorative Justice (mainly through traditional forms) …………………….125 7.2 Retributive justice (through national courts and ICC)……………………...126 7.3 The hypothetical harmonious interplay between them …………………….127 7.4 Selective justice …………………………………………………………….129 8.0 Chapter Eight: Recommendations and Conclusion …………………….132 8.1 Recommendations ………………………………………………………….132 8.2 Conclusions ………………………………………………………………...137 References and bibliography …………………………………….…………..140 APPENDICES …………………………………………..……………………149 Interview guide ………………………………………………………………...149 Backup Questionnaire …………………………………………………………150 The field map ………………………………………………………………….152 Field Photos ……………………………………………………………………153

Declaration I, Nathan Muwereza, declare that this thesis is my original piece of work. It has never been presented anywhere for any award whatsoever. All ideas and literature from other contributors have been acknowledged through foot notes and references.

Dedication This piece of work is dedicated to my selflessly loving wife, Lornah; and to our lovely daughters Hope-Sherry, Jemimah Laura and Promise Keren; whom I missed and who missed my presence all along. They made me work like a wounded lion to finish it!

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Acknowledgements This thesis was made possible by support from Max Planck Institute for Foreign and International Criminal Law (MPICC) to whom I am most grateful. My sincere gratitude goes to The Catholic Academic Exchange Service (KAAD) who facilitated my travels and supported me in the language training. Without these two agencies, the financial needs that characterize most studies of this kind would have not been met, nor would this piece of work have been produced. I am similarly grateful to the government and local leaders in northern Uganda and southern South Sudan for their co-operation. Further, great thanks to my supervisors; Prof. Dr. Dr. h.c. Hans-Jörg Albrecht, Prof. Dr. phil. Trutz von Trotha, and Priv. Doz. Dr. phil. Dietrich Oberwittler. They offered me thoughtful comments, advice and encouragement throughout the program. I also owe deep gratitude to fellow colleagues of the Max Planck Research School on Retaliation, Mediation and Punishment (REMEP) for the psychosocial and moral support they offered to me during the entire study period. This was more so as I left my family back in Uganda and had to spend a long time away from them. All my field assistants and interpreters, with whom we crisscrossed the war ravaged area, braving the rains and sunshine to reach targeted locations, are thanked here. My respondents who hosted me and talked to me about this emotionally challenging aftermath of the war in a conflict situation are more than heroes in this piece of work. I finally thank everyone, who in one way or another assisted in making this project a reality. The coordinators (Dr. Carolin Hillemanns and Dr. Bertram Turner), administrators, proof readers and many others whom I may have not mentioned here by names, please know that your contribution is acknowledged.

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Structure of the thesis The thesis consists of eight chapters that are divided into three main parts. Part I deals with the theoretical aspects of the thesis as well as the description of the study methodology. It consists of the first three chapters of the thesis. Chapter one deals with the general background to the study. In it is the context, the historical facts, theoretical basis, the problem statement, research questions and relevance or significance of the study. Chapter two is a review of some of the existing related literature. The review is done along the thematic areas of the study as a whole. It is also used to make clarifications on how some of the concepts have been uniquely used in the thesis. The third chapter is a description of the methods that were used and employed in the study. It explains the scopes (in terms of the geography and con-tents), population samples, how they were obtained and the data collection and analysis techniques. Part II deals with the empirical aspects of the thesis. It is precisely the presentation and analysis of the responses as field findings. It includes the next three chapters (four, five and six). Chapter four covers the conflict’s atrocious actions. Chapter five covers victims’ perceptions. Chapter six are findings with regard to the forms of justice which are applicable in the aftermath of the conflict, from the point of view of the victim community members as respondents. Part III is where the link between the theoretical aspects and empirical is made. It consists of the last two chapters (seven and eight). Chapter seven entails the summary of the hypothetical interplay between restorative justice and retributive justice and accompanying conceptualizations. Chapter eight includes the recommendations and the general conclusion of the study. There are also other auxiliary sections such as the appendices and references that are referred to in the table of contents.

PART I: BACKROUND, LITERATURE AND METHODS

1.0 CHAPTER ONE: BACKGROUND TO THE STUDY 1.1 Introduction The contribution of local traditional restorative forms of justice is seemingly under-rated, particularly with regard to addressing and studying the conflict in northern Uganda. Due to their informal nature, local justice forms and processes have been generally described and/or seen as those that lack the main ingredients of criminal justice (Senyonjo, 2007). Specifically, it has been observed that “…many of these locally based processes contradict the more formal mechanisms…” of justice (Rian˜o-Alcala and Baines, 2011:414). Yet still, the immensely coded, formalized punishment leaning (retributive) forms are less understood and less beneficial; especially from the view point of local victim communities therein (Allen, 2006).

Nevertheless, it is acknowledgeable that local restorative forms of justice have played a tremendous role in constructing and reconstructing social order in some post conflict societies (Huyse and Salter, 2008). The Rwandan Gacaca has for instance cooled the hitherto dangerous latent retaliatory feelings of two ethnic groups (of Hutus and Tutsis). The famous South African Truth & Reconciliation Commission used many aspects of these restorative forms of justice to attain the much publicized successes and attract the numerous accolades. Sidelined as they may seem to be, communities still favor them (Aertsen, et al (2008). This is so much so that, besides the formalized criminal processes, families and clans in the affected region carry out these traditional processes in the form of rituals. It is for similar reasons and circumstances that Keulder (1998:294) rightly stressed that “those who criticize traditional justice forums as being too traditional…are often too simplistic”.

On the other hand, selective justice is used to mean the practice of punishing some perpetrators but not similar others (Cavanaugh, 2002; Pritchett, 2008). In this way, the concept of selective justice is negatively portrayed and perceived,

especially with regard to its applicability in bringing to book perpetrators of atrocious actions. However, selective justice need not be negatively denoted as punishing some and leaving others to enjoy impunity in cases of complex conflicts where perpetrators and victims form a complex. This is particularly because the reconstruction of social order and attainment of social harmony in societies that are transiting from conflict is more complex than the routine requirements of formal processes such as those espoused in the international criminal law procedures. That is, they “…need not adhere to rigid legal frameworks” (Cavanaugh, 2002:959). For this reason and for purposes of making a case in this thesis, selective justice is defined as ‘the use of different forms of justice on perpetrators of seemingly similar crimes under different contexts and circumstances.’ Already, there are evident forms of selective justice going on in the world unabated for orders’ sake. For instance, it is not deniable that even though the Unite Sates of America has heavily financed special courts such as for Sierra Leone and former Yugoslavia, it is one of the most negative nations when it comes to its citizens. While it is the responsibility of states “…to prevent and suppress criminal conducts…various political reasons have often hindered… effective punitive justice” (Bellelli, 2010:6). So long as the United States and other powers such as Russia and China remain nonparties to the Rome Statute, selective justice will continuously exist. The tendency for the legal prosecutorial fraternity to insist that international criminal law must be followed to the dot of each clause is seemingly hypocritical and pretentious. All these are true as far as selective justice is used in a sense of punishing some perpetrators and impunity for others.

Conversely, selective justice (if used to mean the use of different forms of justice to different perpetrators of similar crimes) is seemingly a necessary evil. It is practically relevant in the case of the aftermath of the conflict in northern Uganda, where people’s children have been abducted and turned into hardened fighters and brutal killers. Even the most commonly attributed principal of gravity is still questionable since it is also a relative aspect. What may be considered as grave to a prosecutor in any form of criminal justice process may not be so to another or to

a victim, and the reverse is true. Moreover, many of the fighters mentally struggle with dissonance or self-conflict (Festinger, 1957) because they were forced to commit atrocious actions against their will. For instance, they were forced to kill their own family members. Dissonance is a condition in which there exists a mental struggle within oneself regarding his/her actions. The struggle is between such a person’s actual and wrongful actions as weighed against those that are considered as right actions.

To say the least, the criminal aspects and responsibilities of all perpetrators, victims and other stakeholders in the northern Uganda conflict form a dynamic complication whose successful analysis needs going beyond a legal dimension. In one of the peace talk pacts signed between the government of Uganda and the Lord’s Resistance Army/Movement, the parties agreed to be bound by the fact that they were “DRIVEN by the need to adopting appropriate justice mechanisms, including customary processes of accountability that would resolve the conflict while promoting reconciliation …and further recalled the Constitutional duty on the courts of Uganda to promote reconciliation” (Agreement on accountability and reconciliation, 2007:1). In this agreement, it was an implicit acknowledgement of the fact that justice will successfully be administered if traditional mechanisms are given a clear space and role to play.

This thesis is therefore a result of an attempt to use the complexity of the conflict in northern Uganda to elucidate the fact that local restorative forms of justice are important and that selective justice is not entirely an equivalent of impunity. It is crucial however, as a starting point to expound on the background upon which the elucidation is based. As such, the next couple of sections provide the background information about this study with regard to the conflict’s context and history; and the theoretical framework within which the study is situated. The objective of the study and the research question are also given here.

1.2 Contextual background The northern Uganda conflict is a local civil war that expanded to involve other countries. It immensely drew the attention of the international community. The conflict begun as a rebellion against the ruling government, and was seemingly locally supported. However, it gradually developed into a heinous and atrocious war. The rebellion’s leader, Joseph Kony, became a hardened guerrilla fighter who effectively eluded combined mighty national armies for over two decades. The conflict’s criminal actions particularly presented serious challenges to many minds with regard to administering justice.

Although relative ‘physical peace’ returned in northern Uganda, the insecurity and atrocious actions were exported to Sudan, Congo, Central African Republic and Chad. The role of invisible actors and perpetrators, the victims' attitudes and other quiet but significant parties are all part of the challenges. An actor such as the International Criminal Court, warranted as many might have thought, did meet antagonistic reactions from different stakeholders. Such reactions cannot of course be used as excuses for leaving perpetrators of atrocities unpunished. However, there are contextual complications that required an early and careful analysis.

The criminal complications of this conflict can be contextualized into a number of scenarios. These include: the atrocious actions; the types of perpetrators; the victims’ attitudes towards perpetrators; and the interplay and/or application of the famous international criminal justice along national formal courts, and local or traditional forms of justice. Although cross-border relations and external influences were also severally and rightly referred to by respondents, they are offered a peripheral treatment in this thesis because they are beyond its scope.

Many atrocious actions were and continue being executed in the conflict. Most of them qualify as crimes against humanity and crimes of war as defined by the Rome Statue. In article 5, the Rome Statute provides a list of crimes against humanity. It also gives a comprehensive list of war crimes and places them under broad categories of: breaches of the Geneva Conventions; serious violations of the

laws and customs applicable in international armed conflict; and serious violations in armed conflicts not of an international character. To this end, since actions that are categorized as above have been committed in northern Uganda, the International Criminal Court could not be kept aloof. However, evidence on some of the alleged perpetrators seems to have eluded the court in its investigations. This was partly because investigations were carried amidst war. In this case, witnesses had safety concerns and the court’s personnel needed a high level of security. The identification of the court with the government of Uganda as a state party was legally right. However, the referral process and proceedings put the court’s much acclaimed and treasured impartiality into question.

Further, issues of perpetration and kind of perpetrators have attracted almost only skewed analyses. The rebel fighters have rightly taken the greater blame due to their visible atrocious and/or brutal actions. This however need not cast a shadow on the fact that two clearly known forces were involved in this conflict. Although there have several indications by some victims, to the effect that the other force, the government, is also responsible for some atrocious actions, few dare taking a bold stance into such indications in detail. The more this aspect is put forward, the more political it appears to become. Moreover, proving that government is culpable as an institution is an uphill task. However, it is important to note that responsibility for atrocities of government soldiers has been implicitly acknowledged in some ways. The academic fraternity has also tended to treat peripherally these allegations about the government’s culpabilities. This is probably due to fear and intimidation of sitting governments. On the surface of it, yes, the rebel fighters are guilty of most of the atrocities. But under the surface, victim communities have issues with the government as a party to this conflict. In addition, the support of rebel groups by different countries’ governments, the crossing of borders of such rebels and the porous nature of national boundaries of such countries make victim communities to hold different attitudes towards all the perpetrators (rebel fighters and the government).

All the above aspects, especially from a victim view point have attracted limited research, yet they heavily affect the form and success of justice to be administered. As rightly observed by Afako, (2002:65), it is vehemently noticeable that due to a history of impunity for atrocities committed over the past decades in the entire country, “…Ugandans have had to grapple with the meaning of justice…” for long. It may also be generally agreeable that the dilemmas of peace or justice; local, national or international jurisdictions; as well as questions of whether the legal arm of the international community frameworks are enough or lacking have all attracted a somewhat more explicit and detailed exploration (Allen, 2005, 2006; and Clarke and Goodale, 2010). This thesis makes an exposition of the interplay between the different forms of justice (including local informal forms, national courts and international interventions through the International Criminal Court). However, this exposition required to be done in the context of the historical background. This is most especially because such a background affects attitudes of victims towards perpetrators as well as their preference for any form of justice that is applicable to the conflict and/or its aftermath.

1.3 Historical background History is very important in making an understanding of the past to be able to manage the present and yet plan for the future. This is most especially as the past may control the future, and the present may control the past (Orwell, 1949). For instance, it has been acknowledged that“…Kony's LRA is not a sudden or inexplicable disaster, but the outcome of a long political process wherein both the harsh struggle for power and the use of violence became institutionalized” (Doom & Vlassenroot, 1999:7).Therefore, a brief knowledge of Uganda’s past may partly give insights into the underlying causes and perpetuations of this long heinous conflict. To begin with, violence and armed conflicts in Uganda date back to its pre-colonial, colonial and independence periods. Uganda was a British colony until 1962. This partly resulted into antagonistic and mistrusting historical happenings and processes that have made armed conflicts inherent parts of Ugandans.

Firstly, the colonial era drew an invisible but clear line between northern and southern Uganda following their economic interests, and in relation to the political resistance they met. As a result, southern Uganda was developed using the cheap labor from northern Uganda, and this development imbalance continued “…into the postcolonial history of Uganda (ibid, page 8). Through pitting one region or tribe against the other, the colonial era appeared to have set Ugandans against each other. For example, the Buganda kingdom was used to fight and conquer the Bunyoro kingdom, leading to Buganda’s acquisition of some parts of Bunyoro. To date, these parts are a big source of disputes and conflicts between the two tribal groups. The disputed parts are termed as ‘the lost counties’. These counties are a source of antagonism and rivalry between the two tribes. This antagonism was and continues to be perpetuated into the post-colonial period through mainly egoistic politicians. Because some tribes still feel their losses, politicians use it in a populist way for their own political interests and support.

Secondly, since gaining independence in 1962, Ugandan politics have been marked by continued ethnic, tribal and regional divisionism language, most especially between the northern and southern tribes. The major early political players in Uganda were the Buganda kingdom and the central government. Uganda became a republic and Mutesa (the then king of Buganda) was designated as president in 1963. Dr. Milton Obote (from northern Uganda) was prime minister. The period following Uganda’s independence was characterized by rivalry and struggles between the king of Buganda as president and prime minister at the central government. This rivalry led to the introduction of a new constitution by the Prime Minister (Obote) in 1966, which ended the kingdom's special status and abolished the monarchical system. The suspicion and rivalry did not end until Obote captured the Kabaka's palace at Mengo, forcing the king (Kabaka) into exile. It is important to note here again that the invasion, overthrow and subsequent abolition of kingdoms or the monarchical arrangement by the prime minister was inevitable.

This was partly so because, Buganda would not easily comprehend the idea of having a leader from another tribe, (most especially from the north) apart from the king. At the same time, the king was pursuing and representing interests of Buganda as a kingdom, not Uganda as a nation state, envisioned at independence. Since then, armed rebellion has been a notorious approach and commonest way of expressing political grievances or gaining state power in Uganda. Through this same way, General Idi Amin Daada overthrew Dr. Obote in 1971 and established a notorious dictatorial regime ever known in Uganda’s history. He was also overthrown by Dr. Obote in 1979 with the help of Tanzanian armed forces, whose second reign has since been code named Obote II. In 1980, the Obote II regime organized general elections, under a multiparty dispensation. The Uganda People’s Movement (UPM) under the leadership of Mr. Museveni, the current president of Uganda participated. According to him (Mr. Museveni), these elections were ridged. In fact the winning party was widely believed to be the Democratic Party (DP), a seemingly less militaristic party.

In 1981, Museveni led a protracted guerilla war in the famous Luwero Triangle against the Obote II regime. The regime’s soldiers were predominantly from the northern tribes, but particularly dominated by the Acholi and Langi. Innocent civilians were killed in hundreds of thousands during the five year guerilla war. Up to now, there are accusations and counter accusations of who killed the civilians then. Shortly before the capture of state power by Mr. Museveni, General Tito Okello Lutwa overthrew the Obote regime in 1985. When Musevenn’s National Resistence Army/Movement (NRA/M) finally captured power, the predominantly northern soldiers fled instinctively northward. With fear and mistrust of what would follow, the fleeing soldiers never gave up resistance. These fears and mistrust were reinforced by the northern community’s perceived persecution by the predominantly southern NRA/M soldiers. The fears were to some extent justified as was evidenced in actions of some of the NRA/M soldiers in northern Uganda. Such actions included watching over and/or providing military cover during the notorious cattle raids by Karamojongs of north eastern

Uganda, as well as some indiscriminate killings during their chase of the northward fleeing overpowered soldiers. To this end, the northern Ugandan conflict is deeply rooted in issues far beyond the current times. It is no wonder that regional groupings (that are mainly tribal in nature) harbor feelings of deliberate and continued marginalization (Green, 2010). For example, the Karamjongs have on several occasions justified their cattle raiding behavior by the marginalization of the Karamoja region. In the same vein, it is widely believed that the prolonged war in this region is a ploy by a tribal led government to weaken other tribes (CSOPNU, 2004).

On the other hand, the porous nature of the colonial era’s imaginary national boundaries makes northern Uganda and southern south Sudan a precarious area. Allen (2006:26) observed that … classification of ‘tribes’ to some extent pre- dated the process of finally deciding where the border between Sudan and Uganda should be located. But this did not stop the boundary being constructed in such a way as to divide closely related populations”. Before these boundaries, there existed a clear distinction between which peoples (tribes) occupied which parts and trade between them was well defined. For instance, Khedive Ismael of Egypt had an empire on the Upper Nile and his trade in ivory had reached the frontiers of Bunyoro through the current Acholi land. British explorer, Sir Samuel Baker was sent by Khedive Ismail to raise the Egyptian flag over Bunyoro land. The Bunyoro kingdom resisted and fought Baker until he retreated. It only took the British some renegotiations and gift exchanges with Buganda to finally penetrate the country’s hinterland up to northern Uganda. Needless to say, this porosity has existed into the present day in terms of the socio-economic lives of the tribes across the two countries. Unless explained, it is difficult from an external view to distinguish between a south Sudanese Acholi and northern Ugandan Acholi.

Therefore, while the conflict may have directly affected northern Uganda and southern South Sudan, it actually directly affected the same tribe in earnest. There is no wonder that some people from other tribes in Uganda have hatefully referred to the conflict as an Acholi issue; a war in which Acholis kill fellow Acholis.

The aforementioned border porosity is consistent with the fact that the colonial era re-organized traditional monarchical orderings and arrangements which existed in the region. These arrangements were rudimentarily evolving through a kind of Darwin’s survival for the fittest process. In this case, the stronger tribes forced weaker tribes into submission and eventual diffusion or even extinction. There would probably be kingdoms such as Buganda, Bunyoro and Acholi (those which were strong enough to defend their territories) dividing the present Uganda.

In a bid to create broader common frontiers, colonialists lumped together such kingdoms, a kind of pseudo states (called tribes) into one state (called Uganda) through lines called (national boundaries), an artificial creation of states (Low, 1988). In the end, there is now Uganda as a nation but with micro states in form of tribal monarchies such as Buganda, Bunyoro, Toro, Busoga and Ankole. Resultantly, some of the conflicts arise from the fact that members of each tribe view any sitting (who is meant to be a unifying) president as one for the tribe from which s/he belongs. These latent feelings are normally suppressed and can only come to the surface under extreme annoyance or can mainly be heard among people of the same tribe, as a way of back-biting another tribesperson. Such latent feelings can easily erupt into and/or fuel violent conflicts between such tribal groupings.

It is no wonder that the realization of just and peaceful communities in Uganda is a complex puzzle. There exist different competing ethnic and tribal backgrounds; allegations of masterminded marginalization; muddled political history, and other external influences such as colonialism and of course international criminal justice. It is within such complexities that studies which suggest practical models or at least hypothetically give solutions are plausible here.

1.4 Theoretical framework The thesis oscillates between both theory and practice. This is because in theory, the constructions of how concepts are related are considered. For practice, the real and actual existing circumstances are contextualized. They then help in proving the hypothesized relationships between concepts in the theories. Moreover, practice is often guided by theory. This is so because the actual interpretation and better practical application of (say criminal) law by those concerned, need the theoretical knowledge of its interrelationships with the many aspects of offenses in the socially constructed world (Lauterwein, 2010). Theoretically, the thesis considers linkages between three different, but seemingly interwoven concepts. These concepts are conflict, punishment and justice. The fact that punishment of perpetrators of crimes is useful and may deter further perpetration of crimes is well established (Andenaes, 1972; Tullock, 1974). It is therefore not the preoccupation of this thesis. Rather, the thesis implicitly addresses questions of whether and how the different forms of punishment, their processes and proportions, in situations of conflicts such as in northern Uganda, can translate into justice from the victims’ point of view.

Punishment, in most literature seems to be confined to the legal meanings and the states as a way of administering criminal justice (London, 2011). The French sociologist, Durkheim (1961:114) portrays it as a way of social control that originally never included elements such as incarceration as “deprivations of liberty [which tended: MN] to become more and more the normal means of social control”. In this sense, punishment relates to the reorganizing and reordering in society, in a way that demonstrates group norms and strengthens moral limits. It entails inflicting some kind of pain, either physically, psychologically or socioeconomically onto those who go against accepted norms. If left to individuals, punishment may equate to revenge, since they may “…punish for the sake of punishing…without seeking any advantage for themselves for the suffering which they impose”(Garland, 1990:31). To this end, there is thus a strong theoretical reason for states to plausibly take over the processes of punishment. It also a way of legitimating their existence and prevent retaliation.

However, two main theoretical reasons for punishment are identified in this thesis. The first reason is the attainment of balance (which takes the retributive perspective through theories such as the just deserts theory). The second is the prevention of future crimes (which takes the utilitarian perspectives through the deterrence theories). The retributive perspectives such as the just deserts theory of punishment postulates that a balance or fairness is attained if a wrong doer is made to proportionately pay for such a wrong (Kant, 1952). On the other hand, deterrence theories suggest that punishment is meted purposely for the prevention of future wrongdoing due to the perceived consequences (Bentham, 1970). However, some studies, including those of (Ten, 1987; Walker, 1996; and Nagin, 1998) have shown that punishment alone may not yield significant deterrent effects. This is why it may be suggested that for the deterrence effects to be felt, punishment (in its retributive sense) needs to be accompanied with other reasons and aspects such as rehabilitation and restorative efforts; albeit their own criticisms or failings (Cotton, 2000). This would indeed make retributive and restorative forms of justice inseparable.

Furthermore, there exists a seemingly unnecessary antagonism between proponents of retributive justice and those of restorative justice in regard to punishment and its benefits. This is mainly due to the wrong overarching perception that punishment exists only in the retributive justice procedures and not in those of restorative justice (Brunk, 2001; and London, 2011). In fact the major difference between the process of punishment in retributive justice and that in restorative justice is that under retributive justice, the state “depersonalizes a victim’s retaliatory response … [as) a universally recognized, paramount authority” (London, 2011:75). While depersonalizing retaliation from victims may also be done under restorative justice, the universal aura provided by the state is practically lacking in traditional justice mechanisms that are restorative in nature. Yet, if justice is meant for those who were actually offended, their views and input in any particular form of punishment need being taken into consideration. Otherwise, it may be hard to convince such stakeholders that such justice is meant for them. It plausibly justifies the question of whose justice is always sought and

upon whose rationality (MacIntyre, 1988). From this stand point, the thesis espouses the view that the theoretical reasons for punishment described above may not necessarily be translated into justice from the perspective of the victims of crimes in some peculiar contexts such as conflicts. Under such contexts (of conflicts), the forms, processes and proportions of punishment may apparently require some level of pragmatic innovation.

Conflicts are generally perceived as a negative aspect of society but they are seemingly inevitable. They need to be viewed as moments and recipes for learning and improvement. Lewis Coser (in 1956) advanced a view that there are positive functions of conflicts. He posited that conflicts inspire creativity and may generate new norms and institutions. In the same vein, Christie (2003:21) also stressed that “…conflicts ought to be used, not only left in erosion. And they ought to be used, and become useful, for those originally involved in the conflict”. Nevertheless, the conflict in northern Uganda is no ordinary, everyday inevitable social conflict. Doom and Vlassenroot, (2004:5-6) rightly observed that the violent actions by the fighters in this conflict “…seem to be based on blind terror”. Besides becoming increasingly brutal, the rebel fighters’ actions were seemingly misdirected in later stages of the conflict. They also lacked a clear agenda to be politically addressed. Further still, the suspicions that the government also had a hidden agenda for the region, or “…would wreak vengeance…” continuously sustained victim communities’ support for the brutal rebellion and its leadership in some ways (ibid, page13). As a consequence, the enemy was seemingly unclear to all parties in the conflict.

Upon such bases, a contention that conflicts, their causes and effects present a case for innovation and invention in the justice systems, forms and processes is plausible. In this case, a practical innovation would be a model in which there is a harmonious interplay of the different forms of justice that are applicable in the aftermath of the conflict in northern Uganda. Considering the complexities in this conflict, with regard to atrocities, victims and their attitudes towards perpetrators, as well as the available forms of justice; such a model need to present a

theoretically holistic justice approach. This implies that whether any given form of justice is retributive or restorative in nature, it needs to fully accommodate the interests of all stakeholders.

It is also important to note that conflicts and actions of those involved (including atrocities) are partly due to individual distorted thought processes (psychology), or social upbringing (sociology and/or socialization), or existence of particular legal norms that are broken (law); and at best, the combination of all the three. Cunningham (1998) contextualized the conflict in Northern Ireland using both behavioral (micro or individual level analysis) and classical (macro or group level analysis) theories of conflicts. He showed that while micro theories focus on individual psychology and behavior (understood in aggression and retaliation feelings), macro theories focus on larger groupings or communities such as ethnicities and tribes. In the latter case, groups of people having common threats according to their perceptions decide to act together and label such threats as those of their enemies. They act together and defend each other’s behaviors and actions. This thesis uses such theoretical combinations in analyzing responses; and to provide answers to questions such as why rebel fighters turned against and killed their own people (innocent civilians) during the conflict. And more so, why they (victims) still sympathize with them (rebel fighters) in retributive justice terms. It is under such circumstances that punishing such perpetrators in this conflict may not necessarily amount to justice in view of the victims’ perspectives. This is partly because they do not view them as their enemies in earnest, and because the forms, processes and proportions of such punishment may be contested.

Justice means different things to different people if contextualized and assessed within their particular circumstances. Margot and Mulvale (2011:14), in the academic arena, assert that“…the definition of justice is a moving target; … conceptualizing justice is an ever-changing, subjective process of assessing the fairness of relations between individuals and groups of people” They rightly observe that “…often when people think of … justice they think immediately of crime, perhaps a particular crime, the arrest of a person by the police, the courts

and the eventual incarceration of an offender in jail and their possible rehabilitation. [This is what is referred to as the criminal justice system: MN]. However…, justice entails more than just the operation of our criminal justice system and how to respond to a particular action by passing a law to make that activity a crime.” (ibid, page 10). It is therefore important to note that while commonsense may implore us to perceive the formalized punishment of Kony and his commanders as justice for those they offended, under the circumstances of the conflict in question, justice may mean something that goes beyond such punishment to them.

Branch (2004:22-26) referred to the belief that International law offers absolute justice, taking precedence over local solutions to long-standing, complex conflicts, as the perfect example of international law fundamentalism. He argued that International judicial processes are based on the idea that justice is best realized by punishing the guilty. And that this internationally supported punishment may, in some cases, be part of a locally based process and as demanded by the locals themselves. He uses the example of Hissene Habre, the ex-president of Chad, in which efforts to prosecute him were initiated and pushed by a group of Chadian nongovernmental organizations and victims' groups. He it calls a good example of international legal solidarity with the local pursuit of justice. Further, he is of the view that the autonomy and self-determination of others is curtailed when external prosecution is not in solidarity with local demands. And that the decision, on the one hand, to seek justice through punishment or, on the other, to forgo punishment in favor of justice through reconciliation, is a decision that must be made by the concrete community that is the victim of the crimes and that will have to live with the consequences of the decision. When legal prosecution in the name of humanity is in opposition to a community's demand for justice through peace and reconciliation, the prosecution takes on a peculiar and unattractive character, he argues. He uses the concept of punishment in a legalistic sense. Otherwise, punishment could also exist in other forms of justice say through reconciliation.

While his view of taking victims’ perspectives into consideration is plausible, Branch’s undertone about the universality of crimes such as genocide, serious crimes and crimes against humanity as defined in the Rome Statute is contestable. The demands of victims notwithstanding, such crimes have to be universally punishable, if impunity (as conceived in the Rome Statute) is to be seen as intolerable. Moreover, this is part of the complex in the northern Uganda conflict; which has made selective justice (in its negative sense) almost a necessity. The major questions should plausibly be who did what; and therefore, should be punished by whom and how?

It is within these frameworks that all the study findings were analyzed. The analysis involved teasing out vengeance and/or retaliatory, as well as reconciliatory elements of the respondents’ views and opinions towards other stakeholders in the conflict. Finally, the analysis was used to present a case for a selective justice model. That is, which perpetrator is deemed to be taken to the international criminal court, national courts or local (informal) forms of justice? In essence, is retribution better than restoration? Yet, who do we restore or punish? {Who to punish or forgive, by who and where, or put all behind and forget}. However, there is a need to understand what justice is and for whom it is. Or better, whether punishment necessarily yields justice from victims’ view point.

1.5 The study problem After a long period of war and conflict, northern Uganda communities are resettling. People are trying to come to terms with the hitherto brutal armed conflict. However, in the aftermath of this conflict, several questions are raised with regard to the administration of justice. There have existed widespread complications partly because the administration of criminal justice was mixed with conflict resolution approaches. Moreover, these are manifestations of community-based responses to their troubled past. These community based responses stress restorative justice models as opposed to retributive models. They have come under increasing international scrutiny and criticism due to their traditional and informal nature. Conversely, the purely retributive formal

approaches have met challenges from a sociological point of view. Practically, there is local discontent towards formalized criminal justice that continues to complicate its administration. Yet, local informal approaches are ambiguous and lack the fundamental ingredients of formal criminal justice. On the other hand, there is a general agreement that atrocities have been committed and/or are ongoing but the perpetration and kinds of perpetrators seem obscured and narrowed to the actions of the rebel fighters alone. The victims’ attitudes towards perpetrators and the forms of justice have taken a parallel co-existence. Yet to realize and construct social order, at least their partial harmony would make an impact. There exist links between retaliation, punishment and retribution on the one hand; and mediation, reconciliation and restoration on the other. The contextual harmonization of all approaches involved in addressing the aftermath of a conflict, by restorative or retributive justice forms, present this thesis’ core problem.

1.6 The study aim and objective The general aim of this thesis therefore is to present a case for selective justice in northern Uganda, especially in consideration of victims’ views on type and mixture of perpetrators as well as the complexity within which social order is constructed and reconstructed in the region. By making a detailed description and accounts of specific atrocious actions, kind of perpetrators, especially from direct victims’ viewpoint, the study specifically aimed at providing a basis for answering the question of which form of justice best applies to who, where and how.

1.6.1 The research question “In view of the complexity and kinds of atrocious actions, victims’ perception about the types of perpetrators and competing forms of justice, what constitutes justice to victims in the aftermath of the northern Uganda conflict?” Thus, the thesis seeks to specifically answer the question of how victim community members perceive justice and address themselves to it in the aftermath of an atrocious conflict; and in the context of different forms of justice. To answer this

question, a consideration of the varied literature is initially made; which is then followed by an analysis of the findings from an extended field study. 1.7 Relevance This study expounds on the complexity of the justice processes in a complex setting, teasing out the important roles of actors. For instance, in the formalized and mainstream criminal and legal procedures, victims play a seemingly peripheral role. To a certain extent, this breeds retaliatory feelings and more conflicts. Moreover, all retaliatory actions involve psychological processes within an individual. If victims are not given the opportunity to participate in the criminal justice process, these retaliatory feelings may escalate. According to Kiza, et al, (2006:16) “…since it is the local population that has to support and legitimize any process designed to address the crimes of the past”, leaving them out or underrating them is done at the designers’ risk. They are a real potential for outbreak of more conflicts. This thesis brings to the fore the significance of actively involving victims in all the criminal justice processes. In analyzing the findings of the field stay, references were also made to the role of international criminal law and contextualized into the concepts of retaliation, mediation and punishment. This was important because it aided in visualizing how retributive justice, at the expense of mediation and restorative justice may bread more conflicts in societies that are transiting from war to peace.

Further, traditional forms of mediation, reconciliation and/or punishment have played a substantial role in modern established systems of punishment to settle the conflict. Yet their relevance are brushed aside and given a pejorative image by mainstream formalized procedures due to their largely informal characteristics. This thesis gives an extended view of the usefulness of restorative justice aspects that traditional forms offer in transiting communities. By doing so, it underscores the importance of the fact that any form of justice that is applicable must address the needs of the stakeholders. Attention is also drawn to the criminality of individuals, governments or agencies causing and perpetuating atrocities (types of actors, their role, the scope of their action and the social dimensions of their actions); as well as how these have been addressed by concerned criminal justice

forms and structures. A further focus is drawn to the impact of international criminal law in the context of social control, its existence or absence, and probable substitutes for formalized punishment. Therefore, the general study’s findings have been streamlined so as to expound on the role of criminal law in the construction and reconstruction of social order; and in explaining the concepts of retaliation, mediation and punishment.

The thesis is also hoped to serve as a relevant literature reference. It is a source of empirical data to be used in other studies requiring such information. This is more so because it involved fieldwork and collection of raw data from victim communities of a disastrous and atrocious conflict. As such, scholars involved in desk research are hoped to have access to it as a reference material got from the victims themselves. Just as others are expected to use this study as relevant literature, the study also engaged some useful works of others. These works guided the study in making a case or contribution to existing literature and knowledge. Therefore, the next chapter is dedicated to the review of literature that relates to the research questions, themes and sub themes of the study.

2.0 CHAPTER TWO: LITERATURE REVIEW 2.1 Introduction Most phenomena that are worthy the attention of researchers and the international community undoubtedly attract many discourses, commentaries and writings. As such, a lot has been discoursed and written about the conflict in northern Uganda and the general great lakes region of Africa. However, few seem to make concrete and precise analyses of how applicable the different forms of justice may and are being used to construct and reconstruct social order in the region. Others have portrayed traditional informal restorative forms of justice in a pejorative manner. In this chapter, the varied discourses and literature are reviewed, analyzed and contextualized into the complexities regarding the conflict in northern Uganda. These complexities emanate from atrocious actions, perpetrators of such actions, victims’ perceptions and attitudes, and the implications on the forms and approaches to justice. The aim of the chapter is to point out some of the gaps left by commentators, researchers and/or writers about this conflict and thereby justify the study. Further, since different concepts and terms mean different aspects in different contexts or even in other disciplines, it is important to make a clear understanding of the terms and concepts in the context of how they are used in this study. Therefore, in this chapter a number of concepts and terms are also described in regard to how they are used herein. The chapter is divided into sections and subsections along the main questions of the study as a whole. These include atrocious actions, perpetration and perpetrators of atrocious actions, victims’ perceptions and attitudes, as well as the forms of justice and their choices.

2.2 Atrocious actions The word atrocious in the English dictionary denotes an extreme negativity. It is derived from a Latin word ātrōx, which means dreadful. Its equivalents include words such as cruel, barbaric, brutal and wicked. Yet its noun ‘atrocity’ in international law and criminological contexts is rightly used only when deaths are

on a large scale and caused by a deliberate action of an individual or group of individuals such as the extremist Jihadists (Andrews, 2008). Otherwise, it is never used to refer to any event where such many people die or are injured due to natural disasters. This is one of the reasons why earthquakes, tsunamis, and hurricanes normally cause massive deaths, but they are not referred to as mass atrocities. Criminal law and legal procedures also tend to refer to actions as atrocious in a way that confuses law with justice for lay persons. As a result, the outcomes of any criminal procedure may only be authentic to those who perceive them as so. Otherwise, actions that may be considered atrocious in one context may not be so in another. This confusion may also be true of international criminal law. For instance, Drumbl (2007) shows that the sentencing practices of international, national, and local courts and/or tribunals that punish atrocity perpetrators, fail to attain the goals that international criminal law ascribes to punishment, in particular retribution and deterrence. If the weighing scale or determination of punishable actions is not balanced, then one can as well forget the issue of retributive justice since there cannot be fairer equivalences. Also, atrocious actions as understood and portrayed by those directly affected may be different. Some of them are indeed different from those that are considered as criminal actions in international criminal law.

However, there is no doubt that actions considered as international crimes or violations of human rights in this region have occurred, still ongoing and reasonably warrant international intervention. While some scholars and writers make mention of crimes that have been committed (Allen, 1991, 2005; Dolan, 2002, 2004), there are few comprehensive and categorical compilations of actions considered as crimes as reported by surviving victims, safe for the Human Rights Watch (2002, 2005). In his book ‘Warrior's dishonour: barbarity, morality and torture in modern warfare’, Kassimeris (2006), simply mentions mutilation and abduction in one of the subsections as forms of atrocities and uses them in the context of how the Lord’s Resistance Army (LRA) has used them to create fear. He does not use them as crimes, neither does he expound on their occurrences. The main task here is not to prove whether atrocious actions took place or not.

Rather, it is to explore, from the victims’ point of view, which actions were committed by which parties; as well as whether and why informal approaches to criminal justice may be thought to be better than formalized approaches in addressing such criminality. Further, the study seeks to understand how local victim community members perceive of atrocious actions and what they consider as justice to them?

Several expositions and reports have highlighted the fact that atrocious actions that constitute crimes against humanity and war crimes have been committed in northern Uganda (Dolan, 2002; Dolan and Bagenda, 2004, Human Rights Watch, 2009). While this is true, an understanding of these crimes is important to help expose which crimes have indeed occurred and warrant any given form of justice. This is most crucial when taken from the local victims’ view point because their understanding of formal justice might have not been as clear as it is thought to be. The Rome Statute Explanatory Memorandum defines crimes against humanity as odious offenses, constituting a serious attack on human dignity or grave humiliation or a degradation of human beings. They need not be few, but as long as they are a government policy or conspicuously supported by it or its arm, they are crimes against humanity. Horton, (2005:201) explains that “acts such as murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice” This implies that some of the atrocious actions of perpetrators such as governments in this conflict are not crimes against humanity if they are not proved to be a systematic practice. But how can such prove be got or even ascertained under northern Uganda circumstances? Investigations by the International Criminal Court were carried out during war time. They were punctuated by fear and intimidation by those in military attire, whose difference victims or witnesses could not easily tell at the time the atrocities were being committed. Could this not explain why even a single soldier from the Uganda People’s Defence Forces was not indicted by the International Criminal Court? Can local victim community members easily

understand or even comprehend international criminal justice to its logical conclusion under such scenarios?

Moreover, the crimes against humanity as outlined in article five of the Rome Statute include: murder; extermination; enslavement; deportation or forcible transfer of population; torture; rape or other sexual abuse of comparable gravity, or enforced prostitution; persecution against a group on political, racial, national, ethnic, cultural or religious reasons; enforced disappearance of persons; other inhumane acts causing serious injury to body or to mental or physical health; detention, imprisonment or deprivation of liberty in violation of international law. While the prosecutor follows regular rules of interpretation, he/she also prune distracting forces such as the politics at the particular time of a given case. How many people should be raped, tortured, mutilated, displaced, illegally detained or killed by government forces, before such actions could be treated as international crimes or crimes against humanity; and whether the prosecutor will indict or not are pertinent questions. Even then, there are two main characteristics of crimes against humanity (in addition to the mental element of intent, which is very hard to detect in practical terms). The first characteristic is to do with the threshold of actions. This is given in article 7(1) of the Rome Statute of the ICC. Here, it is stated that the acts must be committed “as part of a widespread or systematic attack directed against any civilian population.” Now, to determine the systematic nature of attacks is another complex task. The second condition relates to establishing which acts of the crime against humanity have been committed, such as murder or rape. This is easier, and it is why the LRA leaders are hooked without any difficulty.

With regard to war crimes, the Rome Statute of the International Criminal Court gives clear categories. The first category relates to breaches of the Geneva Conventions that give special protections to people such as the wounded; prisoners of war; and civilians during wartime. The statute considers the following acts as breaches of this convention: willful killing; torture or inhuman treatment, including biological experiments; willfully causing great suffering, or serious

injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile power; willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; and the taking of hostages. Didn’t many of these actions take place in northern Uganda and perpetrated by government soldiers? What do the victims say?

The second category of war crimes relates to serious violations of the laws and customs of international armed conflicts, especially as derived from The Hague conventions. The statute includes as crimes such acts as: targeting civilians; targeting buildings devoted to art or science; killing combatants who have laid down their arms and surrendered; declaring that no quarter will be given; pillaging; using a flag of truce or other flag or symbol falsely, resulting in death or serious injury; rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and other forms of sexual violence; using civilians or other protected persons to protect specific locations from military attack; and starvation of civilians as a method of warfare. Again, were these actions carried out by the rebels alone in northern Uganda? Do those who were directly involved as victims or fighters agree to the fact that only rebels acted in this way?

The third category takes up the serious violations in armed conflicts not of an international character. They include: attacks directed against civilian populations, or non-combatants, or against buildings or other targets bearing the emblem of the Geneva Conventions; attacks directed against buildings dedicated to art or science, or monuments; pillaging a town or place, even when taken by assault; committing outrages upon personal dignity, in particular humiliating and degrading treatment; rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and other forms of sexual violence also constituting a serious violation of article three common to the four Geneva Conventions; using children under the age of 15 in armed forces; displacing the

civilian population for reasons related to the conflict; physical mutilation or medical or scientific experiments of persons in the power of another party to the conflict; killing or wounding treacherously an adversary; declaring that no quarter will be given; destroying or seizing property when not necessary; violence, murder, mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment; the taking of hostages; and the passing of sentences and carrying out of executions without due process.

From the above kinds of crimes elaborately provided under the Rome Statute, no precise study had been carried out to compile specific actions under such categories and those that are ignored in the formal justice frameworks for the northern Uganda case. What are mostly read about are blanket statements that crimes of war and crimes against humanity have been committed. A few that attempt to specify which crimes have been committed are also patchy and not comprehensive. They are only mentioned when researching on something else such as consequences of the war such as in (Liebling-Kalifani, et al, 2008; Nassanga, 2008 and AMMIC, 2006). Even some who did some grass root investigations agree that they have not done it exhaustively (Wacha, 2007). As a result, many actions may have been ignored in the formal justice frameworks. This study therefore aimed among others to detail the atrocious actions that took place but were ignored or overlooked during initial investigations by the International Criminal Court, especially from victims’ point of view. This was purposively done to help explore issues of perpetrators and perpetration of all these actions including those ignored as above.

1.3 Perpetration and perpetrators of atrocities in northern Uganda Accusations and counter accusations have been and are still being traded among stakeholders as to who or which party in the northern Uganda conflict engaged in atrocious activities. There are even open impulsive and widely heard rumors and murmurs of the crime of genocide by some commentators in this region (Khisa & Nalugo, 2010). But is it true that people really perpetrated genocide and that it really took place in Uganda? Was there really a plan to wipe out some specific

group of people? If so, whose plan was it? Proving whether genocide took place in northern Uganda is not the preoccupation of this study as this needs the establishment of the offence elements as provided for in the Rome Statue altogether. What is clearer however is the fact that people in northern Uganda were killed, robbed and traumatized by different forces. A medical interventional study by Isis-WICCE (2006) revealed that trauma perpetrators in northern Uganda were rebels, government soldiers, police officers, prison officers and the Local Defense Forces, the supposedly protectors of the internally displace citizens. Why then have the government forces been exonerated in the investigations?

While there is no sympathy that should be proffered to the Lord’s Resistance Army (especially its leadership), it is critically important that any objective analysis should needless agree that the criminal implications in the northern Uganda conflict are not and should not be one-sided. Some authors (Allen, 1991, 2005; Dolan, 2002, 2004) have tried to capture pockets of this argument, but mostly seem to handle it at peripheral levels in their analyses. In fact, the question of whether Lord’s Resistance Army leaders perpetrated alleged atrocities or not is currently of less importance because even the deaf and blind will nod their heads in agreement. Rather, it is the question of whether it is only the Lord’s Resistance Army leaders and fighters who perpetrated alleged atrocious actions in Northern Uganda. The cold and indirect approach with which academic analysts approach this area may be resulting from a fear of unveiling the truth about sitting governments, their interconnected long arms and politics of intrigue notwithstanding. Therefore, much of the facts seem to be understandably stated or reported peripherally or in secondary forms. Even the International Criminal Court’s personnel were not fear-free since they needed support and safety or security during the investigations and throughout the entire judicial process.

Some bold reports have been made though, especially through the Human Rights Watch. For instance revelations of serious human rights violations in Uganda that have taken place in the long northern war, during disarmament and harassment of political opponents have been made. For instance, it was observed that“…even

though most of the country currently enjoys relative stability, state-sanctioned abuses … and impunity for those responsible continues” (Human Rights Watch, 2009:2). Although this report concentrates on illegal detentions here, it gives insights into the fact that government forces perpetrated atrocities in northern Uganda. This is however complicated by the so called ‘convincing evidence’, which has seemingly made those who would be indicted to get exonerated and now enjoy impunity. The time frame of the investigations is also an issue here. While it is clear that so many atrocities and/or origins of the conflict date back beyond 2002, during which government soldiers are believed to have committed most atrocities, the court only considered events after this period! Moreover, there have existed suspicions that the current government of Uganda could be committing atrocities through indirect ways. It may be a perpetrator behind perpetrators.

Although the aspect of ‘perpetrators behind perpetrators’ is beyond the scope of this study, it is worthy highlighting here. It is a thorny and less addressed part regarding the perpetration of atrocious actions in northern Uganda. There is a likeable theory in the Germany law that ascribes liability not only to the direct perpetrators for the crimes committed but also to those who control them. The theory posits that the indirect perpetrators (who are called perpetrators behind perpetrators or perpetrators acting through intermediaries) use others in many ways and methods to physically commit the crimes. Agreeably, these indirect perpetrators must also be held liable for such crimes as though they committed them themselves. It is also vividly covered under article twenty-five of the Rome Statute of the International Criminal Court. It is on this note that leaders of different countries who have supported armed rebellions in others unabatedly need to be brought to book. Beigbeder (2002), in his book on judging criminal leaders, the slow erosion of impunity rightly observes that internal armed conflicts are supported financially and by the supply of arms by external groups or governments. He gave a list of conflicts involving crimes which have not been acknowledged nor prosecuted and where impunity has prevailed. Unfortunately, he neither included the Ugandan case, nor mentioned countries and leaders

involved in it and how they could be enjoying impunity. While he argues that this impunity is slowly being eroded, some sitting government leaders seem to be politically manipulating the international criminal justice systems to cover up their contribution in the perpetration of atrocious actions that are criminal in nature. In such conflicts, all involved parties need scrutiny than allowing preferential treatment as the case may have been in Uganda.

Going by the analysis of actions that are considered as crimes against humanity, it is true that such actions should not be isolated or sporadic, but should be part either of a governmental policy, or a widespread or systematic practice of atrocities tolerated, condoned or acquiesced by a government or a de facto authority (Cassese, 2003). To this end, some of these actions may not necessarily be accepted by the perpetrators, as is always the case. Some such clandestine plans are concealed and only known to perpetrators, who will always deny that they are involved. These do not need to identify themselves with such policies (Horton, 2005). In fact, they can devise ways to hide their heinous activities by referring the other parties to international bodies. As to whether this was not true for the Ugandan case remains an answered question.

In November 2006, Uganda’s President rejected a proposal by the Belgian government to arrest Joseph Kony and surrender him to the International Criminal Court and argued that Kony should be given an amnesty if he agreed to end the conflict through the then ongoing peace talks. Although sympathizers of such an argument could bring in the debate of peace versus justice, the arrest of Kony would bring better peace than it did then. This rejection raised more concern and suspicion on earlier reports that revealed that gross human rights abuses by the Uganda People’s Defence Forces to the people of northern and eastern Uganda took place (Human Rights Watch, 2005) in its uprooted and forgotten report. Indications that “...the government explicitly referred only the situation concerning the LRA, effectively shielding any Ugandan officials from prosecution” (Sriram, et al, 2010:226) are evident. Moreover, complaints have been raised about the fact that the referral process by the government of Uganda

to the International Criminal Court is not as virtuous as it may seem. The referral process has been perceived to have been designed to initiate proceedings against a rebel group while seeking to avoid investigation of any misdeeds by the Uganda People’s Defense Forces. Although the prosecutor promised (as usual) that he would interpret the referral under the Rome Statute and that the investigations would be impartial, the results and arrest warrants exonerated the Uganda Peoples Defense Forces soldiers in totality.

To this end, the views and attitudes of victims of the atrocities and critical analysts or onlookers are largely negative about this result (Kassaijja, 2006). The feelings of such victims about their perpetrators in this conflict were really worthy of a detailed investigation, especially as some relative ‘physical peace’ has returned to region. Do they feel that formal justice (especially international justice) interventions are not beneficial? If so, is it because of this perceived partiality of the investigations by the court? Regarding the usefulness of the court in such cases, Branch (2004) pointed out that international actors often align themselves with undemocratic local political forces that manipulate external charitable entities for their own egoistic undertakings. To him, when the enforcement of international law is opposed by the "helpless victims" because the proposed intervention only makes things worse for them, insisting to impose it on them is likened to a form of paternalism at best or a new form of imperialism at worst. He argues that international law must be guided by those it is claiming to serve, and by their vision of what is just or prudent; and that if local injustice is the price to be paid for the kind of international justice that results from say the ICC’s kind of justice, then the Court can be abandoned and imagine new modes of building a truly global rule of law. However, the history of ICC’s development infers a slow but steady development or building of such a global rule of law. May be, it is better to emphasize the need to make modifications and work around its mishaps than abandoning it. Such modifications partly relate to the treatment of the kinds of perpetrators that are involved.

What is more complex about most of the Lord’s Resistance Army perpetrators is the fact that the majority of them were abducted, forced into the rebellion, indoctrinated and psychologically conditioned to kill. These are actually children of most of the victims, who are more than willing to forgive them. Some of them now termed FAPs (Formerly Abducted Persons) were victims of similar atrocities. In this case, some victims became perpetrators and some perpetrators became victims. That is, anyone can be considered a victim but at the same time be a perpetrator (Afako, 2002). It would therefore be unfair to ignore their feelings in selecting which form of justice to be preferred to whom and where among all these. While rebel leaders such as Kony and his top commanders may not be exonerated from mainstream retributive justice, others were only conditioned to commit atrocities. Their treatment need not be equated to that of their captors, their heinous actions notwithstanding.

Although it is not in the scope of this study, the externalities of this conflict are worthy highlighting here since they play a pronounced perpetration role. For instance, there have been accusations and counter accusations of support for rebels and enemies of each other between Uganda and Sudan. The International Crisis Group (2004:7) calls it the Sudan factor and notes that “since 1994, the LRA's only known supporter has been the Sudanese government, which has provided safe havens and arms.” Sudan accused Uganda for supporting the Sudan People’s Liberation Movement (SPLM) which now forms the government of South Sudan. On the other hand, Uganda accused and still accuses Sudan for supporting the Lord’s Resistance Army/Movement (LRA/M). Currently, Uganda is being accused by Sudan of supporting the Justice and Equality Movement, while Sudan is being accused by Uganda of having resumed supporting the Lord’s Resistance Movement/Army. The Uganda People’s Defense Forces spokes person was quoted in the media to have stated that, “the Government of Uganda highly regrets the continued attempt by Sudanese government officials to portray Uganda as a contributor to the challenges affecting the country…Uganda has no intention whatsoever to start war with Sudan...” (Moses Walubiri, 2012). As shall be seen

in the field findings (in part II of the thesis), many victims severally refer to and/or make these accusations as well.

2.4 Victims and their attitudes Victims are defined severally and according to different factors, principles, agencies or even purposes. For instance the negative role politics as a factor has played cannot be taken as a pejorative issue as it has complicated the definition of a victim in many conflict situations. For instance, it has been “…emphasized that the politicization of the term “victim” is a significant obstacle in determining who is eligible for the label victim” (Kiza et al, 2010:38). The Declaration of Basic Principles of Justice for Victims of crime and Abuse of Power (articles 1-3), gives a generalized definition of victims as persons who either as individuals or as groups suffers from some of physical, psychological or social harm. The International Criminal Court also provides specific definition for victims especially in regard to its rules of procedure and evidence. In this thesis, the definition by the Declaration of Basic Principles of Justice for Victims of crime and Abuse of Power (articles 1-3) is used in describing the kind of victims under study. Therefore, victims here refer to all persons who have suffered harm as a result of by the conflict in northern Uganda. They are not necessarily confined to those restricted by the International Criminal Court, whose reparations management processes necessitated such restrictions. Therefore, regardless of the perpetrator, whoever is a victim of some form in the region was taken as such and was eligible for inclusion in the sample for analysis. Their detailed characteristics are described in the analysis as well. In this case, their varied perceptions and attitudes regarding perpetrators and forms of justice were captured. On perceptions and attitudes, Ssenyonjo (2005) gives insights into the fact that the Lord’s Resistance Army never gave a convincing and coherent political agenda and turned their brutality on civilians. But he also provides that the Lord’s Resistance Army claimed and held the perception that the current Ugandan government has intentionally under-developed and impoverished northern and

eastern Uganda as a political tool of control and repression. Questions can then plausibly be raised as to whether this was not true and whether this is not a widely held perception by victims. As earlier pointed out in the first chapter, Uganda’s ethnic diversity and regional social economic imbalances seemingly play a role in attitudinal dispositions of victims. More so, many Ugandans in regional and tribal groupings feel marginalized (Green, 2010). The Karamjongs for instance blame their historical cattle raiding behaviour on the marginalization of their region. In the same way, the prolonged northern Uganda war is widely believed to be a ploy by a Banyankole (tribe) led government to weaken northern tribes (CSOPNU, December, 2004). The former regimes were largely led by members of northern tribes. The International Crisis Group - ICG (2004:23) note that “…the Acholi must be made to feel a part of Ugandan society. The NRM simply has not succeeded in unifying the country. To rectify this will require specific political, economic and social initiatives aimed at building the North’s connections with the central government while enhancing autonomy and localized decision-making.” It may not only tempting people in the region to conclude that the current government, led by a southern tribe is using its chance, but also justified by a prolonging a conflict led by a barbaric personality.

Worse still, the current leadership is believed to be notorious at warmongering, and will want to continue doing so with impunity. While opening the International Criminal Court’s review conference in early 2010, Uganda’s president challenged the court to re-define the denotation of war crimes against humanity. He argued that atrocious acts during liberation movements across Africa in the pre- independence struggles need not be classified as war crimes or crimes against humanity. Nevertheless, brutalities of tribal regimes and massacres in Luwero and Teso regions still raise questions among many (Khisa and Nalugo, 2010). Support of rebels and arms exchange at borders; and the open official pledges for military support to rebels (International Crisis Group 2010) cannot be swept under the carpet as common people see and know. It may not be surprising that victims’ perceptions of Uganda People’s Defence Force soldiers in the conflict are not at all positive. What they did, besides the rebels’ brutality is fearfully still very fresh

in the minds of those that underwent and witnessed it. Unfortunately, the International Criminal Court investigations took place during a time when victims were still under these extreme fears. If fresh investigations took place amidst less or no fear at all, would the people in the victim communities give the same revelations? In a survey by Pham et al (2007) regarding attitudes towards accountability without specifying the relationship to the peace process, half the respondents said the Lord Resistance Army leaders should be held accountable, but 40% said the government should also be held accountable. Earlier on, according to Otim and Wierda (2010), many believed that the International Criminal Court intervention was not impartial. The court’s chief Prosecutor’s announcement of Uganda’s referral with Uganda’s President created a perception that the Court was siding with the government, a perception that has proved difficult to undo. Doubts about the Court’s impartiality, in a self-fulfilling version, coincided with the fact that it had not opened an investigation on the Uganda People’s Defence Forces, nor had it pursued the crime of forced displacement. Yet the conditions in camps were killing far more people than the Lord’s Resistance Army. In the same vein, since the Court did not have the ability to enforce its own arrest warrants, relying on the government’s cooperation meant that the court may not be impartial. Agreeably, these authors point out that these views were held early in the process and may have changed over time. But with peace, there are changes in attitudes in favor of the court. Besides, attitudes are influenced by not only the timing of the investigations but also the sensitization of the masses about the court’s role and relevance (Pham et al, 2007).

2.5 Forms of Justice and choices In armed conflicts and/or in their aftermath, realizing justice is not easy, as other competing needs, especially by the affected community members often overlap. Shaw (2010) explored the debates of peace versus justice, forgiveness versus fatalism, as well as local cultures and traditions versus formalized justice. Such debates indicate that administration of justice in conflict and post conflict societies is indeed complex. In the same way, the aftermath of the northern Uganda conflict

pauses “…the intimidating range of questions about what justice requires and permits, to which alternative and incompatible answers are offered by contending groups within contemporary societies” (Macintyre,188:1). Moreover, it is important to note that the best solution to any problem should be one proposed and/or at least supported by those directly facing the problem and which addresses its root causes. It is therefore pertinent to unveil inherent solutions from victims of the conflict in northern Uganda before suggesting and/or introducing others. The form of justice to be applied in northern Uganda is a really complicated matter. It has become almost another laboratory similar to that which was in Sierra Leone for experimenting hybrid forms of justice hinted on by Shaw (2010). Some other commentators such as Suarez, (2006) argued that it is not wise and/or even easy to seek peace and justice simultaneously. This is most especially when victims desperately require peace than justice or at least before it. Neither can it be easy to completely separate most cultural traits from conventional and modern forms of justice. Allen (2006:129) observed that some “…factors have meant that the ICC has to engage with the view that the Acholi people have their own alternative approach to justice.” In this thesis, three forms of justice are contextualized and analyzed. These include: a) local traditional or cultural ritualistic forms; b) national forms in form of formal courts; and c) the international criminal justice forms represented by the International Criminal Court. It was along these three that victims’ perceptions were sought and analyzed.

Local traditional and cultural justice forms, which involve more of reconciliation and conflict settlement procedures, were highly regarded by locals in the aftermath of the arrest warrants by the International Criminal Court (Ochola, 2006, Muto, 2006). Mato Oput, for example is a procedure in Acholi where perpetrators and victims take a sip of a bitter root in the presence of leaders and local stakeholders as witnesses. Mato Oput’s overall objective is to reconcile and reestablish the severed relationships between the clan of the victim of those killed and the clan of the killers by emotionally soothing both parties, building forgiveness, and providing compensation. Mato Oput is more of a ritualistic practice. It is used mainly in specific communities and may not easily apply to all

that have got involved in the conflict. Although Mato Oput lacks the ideals of modern criminal justice in many respects, it installs some attitudinal level of confidence from the victims’ view point. However, attitudes change when victims are exposed to different conditions such as prolonged presence of the International Criminal Court, sensitization and relative peace. The concept of Mato Oput was explored during field work and it is detailed in the findings in part II of this thesis. In fact, it is, in most parts, characterized as a form of restorative justice. Since the majority of the direct perpetrators in northern Uganda are victims who were abducted and conditioned to commit atrocities (Pham, et al, 2007); and are children of victims, Mato Oput as a form of restorative justice is seemingly appealing to them.

Restorative justice (expounded in detail in the next section) brings together all individuals who have been affected by an offense and has them agree on how to repair the harm caused by the offense. The purpose is to restore victims, offenders, and communities in a way that they all, as stakeholders agree as just. Restorative justice offers possibilities for solving dilemmas existing between peace and justice for post-conflict communities. By restoring relationships, it lays a foundation for peace and security while not breeding impunity. This can only be comprehensively achieved through a mix of justice forms. However, the use of local forms such as Mato Oput raises several questions relating to their success in ensuring justice and not encouraging impunity. Mato Oput is most especially questionable when the crimes are of an international nature as is the case in northern Uganda. For instance, it has been noted that “… Mato Oput is not part of a system aimed at bringing the persons concerned to justice…reflecting a traditional attempt to shield perpetrators from Justice.” (Senyonjo, 2007:375). But this is not the only form available when talking of a hybrid form of justice or restorative justice for that matter. Other forms need to be explored and integrated whenever necessary. The other tribes that have been affected may have their own traditional approaches and may view restoration in another way say by compensation or plea bargaining. Even the Ugandan Constitution provides for the application of customs and traditions in settling some of the cases among its

peoples (Kadiagala 2001). Others may just want to forget the whole suffering by trying to put it behind them in the interest of peaceful existence. This study therefore sought to put into perspective the interplay of processes of such forms of justice from the victims’ viewpoints and paid particular attention to both reconciliatory and retaliatory feelings among victims. The national courts are part of a robust judicial system in Uganda whose roots are more of the British than Ugandan. There is an overt assumption of independence of the judiciary. In fact, Uganda may be one of the African countries with best written laws. Its judicial independence is vividly asserted in Article 128 of the Constitution. The Chief Justice, his/her deputy, the Principal Judge as well as the judges of the Supreme Court, Court of Appeal and High Court are all appointed by the President. The president is supposed to act after being advised by the Judicial Service Commission as approve by Parliament. The maximum age of service for judges is 70 years, but may be removed by the president if they are unable to perform their functions (Article 144 of the Uganda constitution). Despite this robust judicial outlook the national courts and judicial personnel are largely perceived as partial by the victim communities. This is so much so that some victims and commentators wish and/or have even pleaded with International Criminal Court personnel to handle the case than leaving it to the national courts (Pham, etal 2007; Allen, 2006).

However, the influence of politics on the administration of international criminal justice has not left the International Criminal Court on the best side either. Yet, the interactional intermarriage between the politics of the International Criminal Court and the political can be brushed aside. Yet Roche (2006:6) observed that “…to say that the court should never become politicized is to ignore its role in enforcing international peace and security.” This raises interesting questions regarding complexes brought by politics in impartially administering international criminal justice. Are perpetrators not using politics to divert the court and/or enjoy impunity? In conflicts involving several parties such as sitting governments, are governments not using their political connections to evade justice? Is it anymore a wonder that even when General Bashir of Sudan was indicted, governments in the

African Union were not willing and could not arrest him? Where is the strength of the International Criminal Court in these cases? Isn’t its heavy reliance on governments or the United Nations Security Council in terms of policing crimes turning the court into a political institution (Peskin, 2009)? While these political questions are not part of the scope of this study, they all pertinently require answers and contextualization if victims are to understand the courts’ mandates, limits, and procedure. With such understanding, they can then give required responses that can support the court’s work of investigation and/or prosecution.

Allen (2006) explored the negative community responses to the intervention of the International Criminal Court in the northern Uganda conflict. These negative responses were partly as a result of the political vulnerability of the court. The referral process alone was calculated into political formulae. Legally speaking and following the principle of complementarity, the Ugandan courts and judicial system could be capable of handling the northern Uganda case at the time of self- referral. More questions have continued to flow “…doesn’t this open a wide gate for using the ICC as a State’s political tool…” (Ssenyonjo, 2007:368). Was there “… need for the prosecutor to intervene … since the ICC would by no means be in a better position to arrest these leaders…?” (El Zeidy, 2008:216)?

After the referral, the Ugandan government continued nursing the idea of withdrawing the case from the International Criminal Court, purportedly in the interest of peace. What then was the motive of the referral? Was it a ploy to distract a critical look at its own atrocities and politically confuse critiques? If it was in the interest of peace, then, did it work out? Do victims still harbor negative attitudes towards the International Criminal Court? What would they rather wish to see happen in terms of the forms of justice? Would they be comfortable with domestic formal courts? If so, will they have finally perceived impartiality in such courts? Are local traditional restorative forms such as Mato Oput still more favored among victims? These are all questions that most existing literatures have not answered. More so, they have serious implications for the International Criminal Court in its approach to justice and the international criminal justice.

Yet, victims’ wishes for any form of justice may be culturally confined and/or very narrow to be able to holistically address the big problem (of mass atrocities) that happened in the region.

After considering the many issues and topics covered under the concept of justice, Margot and Mulwale, (2011) suggested what they called common rules. They implored all those who seek to study justice to disengage themselves from their own prejudicial ethnocentrism and be “… able to break from (their) particular cultural background to take into account broader considerations that can affect the outcomes that (they) want to change...” on the one hand, and “…recognizing that often the dominant viewpoint or the views of the majority are not the same as justice” on the other (ibid, page 11). It is with this same regard that restorative justice as a concept and as exhibited in local traditional, cultural and ritualistic practices is scrutinized in the next section.

2.6 Restorative Justice Though the need to acknowledge the usefulness of restorative justice dates far back in history, the concept is widely attributed to contributing writers such as Barnett (1977) and Christie (1977), and later popularized in criminology by others such as Braithweite (1989, 1999 and 2002). It is now evident that restorative justice is not a movement that needs any further popularization. Almost every commentator and writer on restorative justice in current discourses agrees that it is a popular and useful form of justice that needs to be adopted in some particular ways (Kgosimore, 2000; Roche, 2002; 2006 and Maepa, 2005). However, there is a need to clarify on its processes and mechanisms so that it does not appear to be a formal and new concept at the expense of its informal and old existence.

Arguing from formal frameworks, restorative justice has been portrayed as a new and emerging movement of criminal processes in Africa (Roche, 2002), particularly in Uganda. On the contrary, restorative justice is certainly not new to African communities, and it is not true to say that African nations are importing another appropriate or inappropriate system and/or concept. African communities

have traditionally practiced restorative justice in their informal ways. They included mechanisms that encourage people to take responsibility for their actions (Nsereko, 1992). Even within the formal administrative systems, such as the case in Uganda, lower local councils (at village level) have based most of their operations on local and traditional approaches of mediation and compromise in handling cases that fall under their jurisdictions (Khadiagala, 2001). Therefore, it may be true that the formal conceptualization of restorative justice is new but not its processes and applications. It is what goes on in most traditional and cultural forms of justice in most African communities. This is because these communities practiced and still practice criminal justice with many elements of restorative justice than retributive justice.

Presently however, restorative justice is seemingly presented as a solution to gaps existing in the formal processes of criminal justice (UN, 2006), which do not heal or satisfy victims (Braithwaite, 2002). In fact most victims often feel re-victimized and their needs for justice never met as they are only taken as witnesses for another party, the state. In Uganda, just like in many African countries, the formal criminal justice process leaves victims, offenders and their families more broken and damaged. However, retributive justice seems to be threatened by restorative justice (Cunneen, 2003). This is more so with regard to the main fundamentals of the criminal justice process. In this section, literature relating to restorative justice as a concept, its relationship with retributive justice in the legal fraternity and how it was or is being applied in Africa and in Uganda are all explored.

What is restorative justice then? To clearly understand the concept of restorative justice, an understanding of its basic and pivotal principles is crucial (Sharpe, 1998). The first of these principles is the fact that any criminal act causes injuries to victims, offenders and the community. This means that an offense committed on any individual hurts not only that individual as a direct victim but also the offender and the community within which they both live. The question of how the offender is hurt is answered from a moral and psychosocial dimension in aspects such as “…their need to come to grips with their own sense of victimization…”

(Sawin and Zehr, 2007:50). Therefore, if these injuries are to be bandaged and/or healed, the criminal justice processes must involve the active participation of victims, offenders and the community as the affected parties. This is the second pivotal principle of restorative justice. The final principle divides responsibilities between the state or government and the community. It posits that government must preserve order and the community must establish peace. Therefore, Restorative justice as a concept entails processes in criminal justice that constructively and cooperatively addresses the hurt caused by a criminal act. It considers concurrent needs of victims, offenders and the communities within which they live. The ultimate goal of restorative justice is to heal the severed relationship between offenders and victims, and to aid them live harmoniously in their social environments. In this way, the offender will be punished in some way.

The question of where to locate the role of punishment in restorative justice is also crucial here. There is a seemingly general impression in literature that punishment is an attribute of only retributive justice but not restorative justice. They mostly imbue a discourse that retributive justice is punitive and restorative justice is not punitive (Brathweite, 2002). Similarly, there is also a seemingly wrong impression created by associating punishment to legalistic notions at the expense of what it really is. Garland (1990: 17) defined punishment as “a complex and differentiated legal process ....involving discursive frameworks of authority and condemnation; a repertoire of penal sanctions... to its various audiences.” Therefore, punishment is not necessarily (and should not be) confined to retributive justice. This is because within the conditions of restorative justice (Misener, 2001), there are elements of punishment such as taking responsibility, restitution or compensation and acceptance of realities.

Further, people who commit crimes psychologically disengage themselves from their moral aspects of their human nature. Bandura (1990) identified these aspects as rationalization of consequences (the positive/right aspects of a crime outweigh the negative/wrong ones); trying to lessen or obscure personal responsibility for the criminal act; denying the seriousness of the harmful effects on others; as well

as blaming or belittling the victim(s). Therefore, the form of justice, including (the kind of punishment) needs to address such aspects if meaningful restoration is to take place in the lives of offenders. Moreover, this is the core aim of restorative justice. However, for this restoration and healing processes to happen, Misener (2001) posits that there exist important conditions that need to be fulfilled. These include accepting the reality of the consequences of the offence(s); accepting responsibility such realities and consequences; realizing and expressing change or the need to do so; reconciliation and restitution or compensation.

2.6.1 Accepting the reality After an offense has been committed, whatever happened will have happened, and irrespective of the reasons, causes or factors underpinning the offense’s occurrence. Accepting reality as a condition for restorative justice means that there has to be an acknowledgement by stakeholders of the fact the offense was committed. Such stakeholders include the victims, the offenders and the community within which they all live and whose engagement is vital (Sawin and Zehr, 2007). Acceptance helps them to come to terms with the fact that whatever happened indeed happened and cannot be redone. They also need to accept that the situation they are all in is not pleasant and is harmful, the continuity of which is like adding salt in an open wound. Unless this acceptance is practically felt, even a single step on the road to restorative justice cannot be made. This is also possible in cases where there are massive atrocities as crimes or where communities offend each other. Here, leaders as representatives have to realize that their communities’ relationships are precarious and that it is unhealthy for them to continue with such a relationship. An example for illustrative purposes can be drawn from the case of the violence that followed the elections in Kenya in 2007 through 2008. The two leaders (Kibaki and Odinga) had to sort out situations they found themselves in and of their communities. It was so precarious but their acceptance of the fact that it was not a healthy situation enabled the power sharing pact to be signed. The elections had been carried out, claims and counter claims of who won were made, and then the people killed each other. One writer even imbued that “…under a system which decreed that all advancement

was determined by tribe, such hostility was entirely rational (Wrong, 2009:307). These happened and could not be reversed. Accepting that they had happened and that there was need to forge forward was very crucial. Acceptance of what happened is just the first step, and then comes the responsibility.

2.6.2 Taking and accepting responsibility This condition requires that a personal response is unconditionally given especially from the offending party. It may also be as a condition by the victimized party as well as the community. Facing reality acknowledges the truth of a situation but is not good enough. Taking responsibility shows that the offending party accepts the hurting reality of its actions and that there is readiness to change. It is a sign and promise of never again to offend. It acts as deterrence in some indirect ways. Indirect because “deterrence is not [a primary: MN] objective of restorative justice.” (Braithwaite and Roche, 2001:65). As already pointed out, offenders’ collaboration is a crucial aspect to the restorative justice process, especially with regard to accountability. It is in this condition (of accepting responsibility) that offenders critically consider their accountability for the harm to the victims. Doing this aids them in seeking ways of making right such harm. Remember that in addition to causing harm to victims, offenders do suffer harm too. Such harm may be physical or psychological. According to Jonestone and Van Ness (2007:13), apart from any harm they may have suffered in the past… they too are harmed by their criminal wrongdoing”. Thus, some of the offenses may sometimes be due to pre-existing harms.

Taking responsibility allows offenders and their supporters the opportunity to participate in the processes by responding directly to the harms they caused to victims and communities. They also have the opportunity to consider how well they can address such harms. Moreover, they need to consider all pre-existing harms that may have contributed to the decision to harm others. It is actually in the interest of the offending party that a fair process of determining their responsibility for their offending actions is carried out. This partly guarantees them their treatment as whole persons, and not to be only defined by their

offending actions. In this way, other aspects of their lives are acknowledged and respected.

2.6.3 Repentance or change When the offending party accepts personal responsibility for the consequences of the offending actions, it yields and is an expression of repentance and translates into change. It also a sign to show that there is a sincere regret for the actions. Many times, this is expressed in an apology by the offending party to the victimized party. It is a way of seeking for forgiveness from the victimized party. The victimized party always only forgives if there is a perceived and observed change in both speeches and actions of the offending party. It is a form of empowerment for the victims and offenders, “the primary stakeholders in the criminal justice conflict…” (Barton, 2003:25). In terms of deterrence, the acclaimed reason for mainstream punishment, repentance equates to the stoppage of wrongdoing by individuals. For bible believers, repentance saves even the worst criminals, but those who do not repent from committing (even minor) crimes will perish. Jesus told those at his time that, ‘...Suppose ye that these Galilaeans were sinners above all the Galilaeans, because they suffered such things? I tell you, nay: but, except ye repent, ye shall all likewise perish… think ye that they were sinners above all men that dwelt in Jerusalem? I tell you, nay: but, except ye repent, ye shall all likewise perish.1 Therefore, if the victim party perceives the change expressed by the offending party as repentance, they may forgive. After all, they themselves need forgiveness from that supernatural being they refer to as God, why would they not forgive the offending party.2 Others would argue that this would breed impunity. But what is the meaning of punishment such as incarceration if it does not bring about change in offending behavior? Change is more important. However, the same bible (in the Old

1 See this quote from a holy bible, King James version (Luke, 13verses 1- 5) 2 The bible also says, ‘…but if ye forgive not men their trespasses, neither will your Father forgive your trespasses (K J V: Mathew 6, verse 14).

Testament) proposes a harsher punishment. Along this same that Johnstone and Van Ness (2007:109) observed, “…the claim of some restorative justice proponents, that biblical justice was restorative, appears to fly in the face of the evidence”. But those were the Old Testament times that have since changed.

2.6.4 Reconciliation This is a condition that calls upon the two sides to amend their severed relationships. After a very thoughtful change above (repentance), in which the offenders actually convict themselves, they will be willing to face their wrongful actions. They may meet the victims face to face through a mediated arrangement and in this way; they feel the pinch of the harm they caused to the victims. This needs to be done without giving any excuses or rationalizations for any of the wrong actions. It many times involves symbolic rituals (Aertsen, et al, 2008). It is this step that makes it possible for the victims to know that the offenders are indeed changed. Victims may want to say everything that they feel needs to be heard by the offenders, who must appreciate them in a meek and repentant manner. Of course this is less challenging when crimes are not on a large scale; and the perpetrators are not clearly defined, such as the case for northern Uganda.

Those tasked to oversee the reconciliation process strive to strike a balance and maintain good relationships and bonds that form the pillar of communities. This is mainly because, “restorative justice both draws upon, and simultaneously seeks to reinvigorate, a sense of community” (Crawford and Clear, 2001:132). The overseers make sure that no side leaves the reconciliation scene unsatisfied. The offenders are always tasked to rethink and reecho their repentance. If there are indications that the offenders are arrogant, then it means that they are not willing to reconcile with victims at this level. And it would imply that the repentance level above was not fruitful enough to convict the offender. Reasons for such failure of conviction range from pre-existing harms to the offending party, the prior relationship between the offending and the victim parties. Above all, the offending party will have not accepted the wrongfulness of the actions, and does not want to face the consequences. While there is no guarantee that the victim

party will be willing or able to offer reconciliation, reconciliation is not possible if the wrongfulness has not been faced. This is more so because facing the wrongfulness entails accepting to go through the consequences of compensating the victim party, through restitution. 2.6.5 Restitution This condition may sometimes be required before reconciliation is offered by the victim party. This condition requires the offending party to practically face the consequences of the wrongful actions. It is a way of demonstrating the credibility of the words that were expressed in an apology during the stage of repentance. It is a sign of appreciation for reconciliation that being offered by the victim party. It is a form of punishment that affirms the moral responsibility of the offender and shows solidarity (Garland, 1990). It involves a payment of some kind. This said payment may not necessarily restore the victims to their original state but heals the inner hurt that they feel. It is just a psychological lubricant for parties and whose purpose is to make the reconciliation process frictionless. For instance, if the offense involves murder as the hurt that was caused, there is no way the murdered person(s) can be restored. Rather, there must be an agreed way between the two parties to compensate and restitute the losses incurred. Of course, this does not necessarily refer to the equivalent measure of the losses because there is nothing that can equate to the life of a person. This condition equates to the reparations aspect in retributive justice. The burden of restitution or reparation for this matter is also equated to punishment, most especially when it “… correlates to the severity of the wrong” (Sharpe, 2007:34).

When the above conditions are fulfilled then, the offending party and the victimized party can unite and have a good relationship, the ultimate goal of restorative justice. This is one of the reasons why Clute (2010) put restorative justice among examples of unitive justice, which aims to heal, restore and reconcile. This is unlike punitive retributive justice that seeks punishment and revenge. Restorative justice is pronounces the idea that people are all connected or related, that crime is a violation of such relationships, and that such violations create obligations. Instead of focusing on punishing offenders, restorative justice

is more concerned with harms and needs of both offenders and victims; and how an offender can put the wrongs right. Through offenders’ acceptability of responsibility and making restitution, reconciliation is promoted. Restorative justice also strives for maximum inclusion and collaboration by everyone affected. 2.7 Retributive Justice Restorative justice is not in good terms with retributive justice in many aspects. There is a call to have a look at retributive justice with an offer of clearer distinctions. Besides, restorative justice attracts a number of fears. Braithweite (2002:166) discusses such fears, and concludes that “… restorative justice can trample the rights of offenders and victims, can dominate them, can lack procedural protections, and can give police, families, or welfare professionals too much unaccountable power.” This is true as far as the checks and balances are weak or absent. Moreover, this may be the case with traditional justice mechanisms, mainly due to their informal nature.

Although it may be criticized along the dilemmas of determining proportionality of punishments (Sterba, 1977), retributive justice is a system by which offenders are punished in proportion to the moral magnitude of their intentional actions that directly or indirectly inflict harm on others. This has both moral and legal aspects of punishment. This was vividly pointed out by Margot and Mulwale (2011:103), when they asserted that“…the moral justification for punishment is a separate issue from the legal justification because, although the law may provide for the infliction of punishment, society’s moral justification for punishment still has to be established.” It is a normative moral imperative to punish whoever breaks any norms of a community. But it is also legally provided that a crime is acceptably punished in a proportionate manner to restore a balance (Kant, 1952). Now, what the members of the victim communities in northern Uganda really consider as proportional to the many lives and property that were lost is the issue at hand. Moreover, the decision of what is appropriate during the sentencing (in a retributive sense) is at the discretion of the state through judge(s); for promotion of due process and rule of law. It is what London (2011:192) referred to as “…an imperfect vehicle for achieving restoration for the victim, reintegration for the

offender, and peace and security for the community”. In countries where the death penalty applies, proportionality could probably be comparably proportional to the lives lost in the conflict under consideration. At the international level, human rights laws are against the death penalty; a view supported by first world nations. This implies that Kony and other senior indicted commanders would not be hanged if captured alive and brought to the International Criminal Court. Meanwhile those lowly placed fighters who would also be found guilty in the local national Ugandan courts would be practically hanged. This is would imply selective justice in its most negative sense!

The other characteristic of retributive justice relates to its procedures or processes. These see the state and the offender as the main players. The victims and the community are peripheral. The state is historically seen as the beneficiary of the harms suffered by victims (Gavrielides, 2011). More to this, in the case of the northern Uganda conflict, the impartiality of the national judicial process has become increasingly becoming questionable by many if not all, including victims themselves (Okello, 2008). The state seeks justice on behalf of victims by way of punishing the offenders. Yet the victims, who are in most cases, treated as witnesses perceive it negatively. Further, this form of justice relates very well with retaliation or revenge, the proportionality principals notwithstanding. The sense of proportion, however, can vary greatly depending on the society. In this case, retributive justice can be significantly different in different areas. This leaves gaps that restorative justice can plausibly cover. However, restorative justice is criticized for lacking the fundamental tenets of criminal law. A comparison between restorative and retributive justice is given in the next section.

2.7.1 Relationship between restorative justice and retributive justice In retributive justice, crime is against the state and violation of stated norms (law) and it is an individual act with individual responsibility. Crime control is by the criminal justice system. Taking punishment defines offender accountability and it is assumed that punishment or threats of punishment deters crime. Victims are peripheral to the criminal justice process, which is adversarial in nature. The

community is also peripheral, represented abstractly by the state. The process is dependent on proxy professionals who act on behalf of and for the affected parties. Moreover, Gavrielides (2011:3) argues in his paper on restorative practices from the early societies to the 1970s that “restorative practices were favored by ancient societies particularly since their focus was not to make ‘offenders’ pay, but make reparation to the person – and not the State – they wronged, building stronger futures at interpersonal levels.”

On the other hand, in restorative justice, crime is against persons as individuals and community as a collective. Crime has both individual and social responsibility dimensions. Crime control is primarily by the community. Punishment alone is not enough in changing offending behavior or deterring crime. Victims are central to the procedure which is inquisitorial in nature (emphasizing negotiation), and the community acts as a facilitator in the restoration process (Maepa, 2005). The process involves direct participation of affected parties. Moreover, Braithwaite (1989:8), is of the view that “crime is best controlled when members of the community are the primary controllers through active participation in shaming offenders…through concerted participation in ways of reintegrating the offender back into the community … where ... communities prefer to handle their own crime problems rather than hand them over to professionals.” However, there exists an unnecessary contention and tension between retributive justice and restorative justice proponents. In this case, the perceptions of legal practitioners about restorative justice are not all positive. They view it as not taking seriously the fundamentals of criminal justice systems. Such fundamentals include the fact that the innocent law-abiding persons must be protected, offenders receive a fair punishment (not more, not less) and that the criminal should redress the wrong done through such punishment. But such an argument seems to suggest that there is no any form of punishment in restorative justice, yet aspects such as shaming (Braithwaite, 1989) are indeed a punishment.

Conversely, restorative justice proponents argue that these fundamentals are actually not well met using the purely punitive approaches. That the infliction of

pain on the offender does not address the real injustice (the loss and harm) suffered by the victims, in which case, the loss is not restored, the suffering not removed and the broken relationships not mended. Harm and hurt are just on the increase. For instance, “…worldwide, problems of crime have become worse over the past two decades.” (Shaw et al, 2003:41). Moreover, injustice, especially in violent conflicts goes nowhere worldwide. Furthermore, by protecting innocent citizens (potential victims), the real victims of any offense are left to bury their own dead. How much of a punishment can deter others from offending and so protect potential victims is questionable. Imprisonment for instance has protected few from potential offenders and deterred less from committing similar crimes world over. This kind of tension between these two is unnecessary because the ultimate goal of both is to have orderly societies, free from crime.

2.8 Restorative Justice in Uganda Historically, communities and societies in Uganda emphasized the plight of the victims of crime. Restitution and reconciliation are considered as crucial to putting right the wrong caused by crime (Nsereko, 1992). Law in African indigenous contexts emphasizes harmony among people and communities. This is the main focus and is easily realized through people’s duties and rights. There is a collective responsibility for one another among families for crimes. Children born in any community are children of every member of that community. Each member cares and disciplines them as their own children. Any wrong doing by any of the children is accounted for by the whole communities and clans. There is no individualization of life’s challenges in African societies. Whenever any challenge (say a criminal action) is not solved within the family, older relatives or community members are asked to assist in the reconciliation process. By so doing, the victim, the offender, and the community are all at the centre of the justice process (Kgosimore, 2001). The process involves no strangers. Restitution, as a form of punishment plays the biggest role and imprisonment is not part of the law of the indigenous peoples in Uganda, and indeed in most communities of Africa. In this way, it can be stated that restorative justice plays a big part in criminal justice in Africa. However, during and after the colonial era, indigenous

restorative justice approaches were repressed in favor of a retributive justice. This is a punitive, code guided law and procedure which limits decision making to a few elites. Victims have now got neglected and alienated from the criminal justice process. In fact, Most Africans are very suspicious of this western-based criminal justice system because it has few benefits for the individual victims of crime. Although, this suppression has gone on since colonial times, much is changing because the indigenous restorative justice forms continue to fight for space there. As a result, there is some kind of intermarriage, in which the formalized procedures are being mixed with the informal procedures at some levels. In the next section, examples of this mixture are elaborated.

2.8.1 Some examples of restorative justice applications The examples elaborated in this section help to show how restorative justice has been applied side by side with retributive justice. This interplay has indeed already impacted on the formal criminal justice processes not only in Uganda but also in the entire African continent and beyond (Maepa, 2005). The first of these examples is the victim-offender mediation in the Magistrate’s Court, which is most prominent in Greyton - KwaZulu-Natal of South Africa. The primary goal of victim-offender mediation is to compensate the victimized party for the loss suffered as a result of the crime by making the offending party take personal responsibility for making good the loss. The program gives the victims an opportunity to tell the offenders how the crime affected them. The offenders are presented with the opportunity of apologizing, explaining their behavior and making some reparation or paying some compensation, which can be taken as restitution. This process was introduced in 1995 with the objective of reducing criminal cases of a less serious nature from the magistrate courts in South Africa. Such cases included assault, malicious injury to property and theft of a petty nature. These would be resolved out of court and create time for more serious cases to be handled. While the aim was far from implementing restorative justice, it finds its space there because of the practicalities of a purely punitive approach. The advantages were not only related to lessening numbers of these cases court,

but also victims were to be compensated for the losses sustained. The process was totally voluntary and that no one would be pressurized to participate.

The process involved the complainant being interviewed to establish whether he or she is prepared to have the matter resolved and what he or she would require. If this is so, the accused is interviewed separately and the proposals of the complainant are then put to him or her. If the accused agrees to the proposals, then arrangements of how and when compensation can be paid are made. The date is set on which the accused can be able to pay the compensation. On such an agreed date, the accused pays the compensation to the complainant. The parties are assisted to make peace, shake hands and leave the court buildings in harmony. After this, the matter is presumed to have been withdrawn from the court and the files are closed from then on. If either party is not willing to resolve their case in this manner then the matter proceeds to trial in court.

Another example of restorative justice in practice is community service. Though community service presents itself with many logistical and practical difficulties, it is currently being tried and experimented in Uganda. It was officially announced for official implementation in 2001, after several years of development and preparation. Just like victim-offender mediation on reducing case backlog in South Africa, community service in Uganda was originally intended to reduce overcrowding in prisons and provide more humane offender treatment. However, it then provided space for participation by victims and the community, while creating room for the growing use of restorative processes. The main goals of the program were the realization of humane treatment and rehabilitation of offenders, improved or increased use of non-custodial sentences and involvement of the public in the administration of justice. These have led to other unintended benefits. One such benefit is the work done in the community by offenders instead of incarcerating them. The other is that there is reconciliation between victims and offenders. Moreover, there is increased community participation can prevent further offending. Crawford and Clear (2001:133) supported this view when they noted that “… the strengthening of community bonds that restorative justice

mechanisms facilitate is itself crime-preventive”. Uganda's Community Service Guidelines address three levels of the justice system, while recognizing the rights of victims, offenders, and the community. This is done through inclusion and attempts to foster reconciliation prior to a court appearance. Several stages in the process require input from the victim and community members. Both the police and probation officers determine the victim’s attitude when the offender admits guilt. This is important because it takes care of the psychological aspects of the victims. They also have to determine whether the victims are willing to accept an offer of compensation, reconciliation, or restitution by the offender. In this case, the victim is really given the opportunity to determine which kind of treatment will help heal the hurt caused. The officers also have to determine the kind of prior relationships between the victims and the offenders especially in issues related to families. These are most times settled at family level. Indeed, severed family relationships may be difficult to use community service as the victims are at risk of being re-victimized (Clute, 2010). Finally, officers have to determine whether there existed previous incidents between the victim and the offender. All the above factors are important in deciding to order community service and in developing potential work assignments. This is because they determine to some degree the results of the restorative process. Before sentencing, the magistrate explains the community service program and the alternative of imprisonment to the offender. The offender is then given the choice between the two. In summary, this chapter has considered the varied literature on the atrocious actions in the northern Uganda conflict and perpetrators. It has also assessed issues of victims’ attitudes towards such perpetrators and the need for justice. To this end, it can be generally concluded that punishing perpetrators of atrocious actions that are serious crimes and crimes against humanity is plausible. However, the kinds of perpetrators, their victims and victims’ attitudes towards such perpetrators and the forms of justice have created a seemingly paradoxical situation, whose harmonization has not been given enough attention. The practical use of different forms of justice (referred to here as selective justice) is a challenge. It is upon this paradox and challenge that this study set out to empirically establish whether: a) Victims are comfortable

with selective justice - punishing perpetrators of similar crimes under different forms of justice; and b) The parallel co-existence of retributive (mainly formal) and restorative (mainly informal) forms of justice undermines the administration of justice in the aftermath of the northern Uganda conflict.

3.0 CHAPTER THREE: METHODOLOGY 3.1 Introduction The study empirically adopted an ethno-methodology. According to Livingstone (1987:10), ethno-methodology is “the study of the common, everyday naturally- occurring, mundane methods that are used by people to produce and manage common, everyday activities of everyday social world.” The study preferred this method because it is precisely “the study of the production of social order” (ibid: 12). Most communities in the study area had been disorganized and scattered by the conflict. In this sense, there is some kind of new ordering and/or reordering which is taking place among them. Communities have to adjust and reconcile their old life with new life styles, new justice forms and new peoples in some ways. To fully capture and understand such ordering needs some level of immersion into the societies’ midst by those seeking to understand it. The study also made use of literature reviews and documentary analyses. These specifically helped in corroborating the field findings with popular discourses in the disciplines of international law and criminology. The purpose of this chapter however is to present details and descriptions of techniques and procedures that were used in the process of carrying out the study, the analysis and the compilation of findings. It gives a detailed explanation of the study scope in terms of geographical area, study populations, sampling procedures, as well as data collection and analysis techniques. The challenges faced during the study as well as how they were overcome are also given in this chapter.

3.2 The Scope of the study Ideas and realities are very complex and dynamic. Lack of set limits to any phenomenon that is being considered during any study, including its categorizations and meanings or extensions and intensions (Sartori, 1984) makes

it very complex, if not ambiguous. Therefore, to avoid excesses that would make the study ambiguous, its scopes were limited as elaborated in this section.

3.2.1 Geographical scope I conducted an extended field study in a number of locations in northern Uganda and south Sudan. I specifically covered the central part of northern Uganda and the southern part of South Sudan (see appendices I). However, many historical aspects of the study are drawn from beyond these marked and/or specified regions. The specified regions are the areas that were directly affected by the conflict. They were targeted because they are where the conflict war took place but there was relative peace during the study period. Although some people were displaced to other parts such as Kampala, Masindi and Arua in southern and north western Uganda respectively, their experiences were all traced back to the above specified regions and in districts that were most directly and severely affected. The most directly affected districts of central northern Uganda include Gulu, Amuru, Kitgum, Pader, Adjuman, Lira and Oyam in order of severity. Other districts that had many incursions of the conflict included Soroti, Amuria, Kaberamaido, Abim, Dokolo, Apac, Kabong and Katakwi. As this was a vast area to be covered for such an ethnographic study, a selection was made according to the severity of atrocities committed there, such as massive massacres. From Gulu as a central point, all such important study locations were mapped out. From Gulu district, the former famous Pabo camp for internally displaced persons was visited. This was preceded by a visit to Atyak where a massacre of hundreds of students in a school took place. These were followed by Tooki and Kooro around Gulu main town where many FAPs are being rehabilitated. Awere, the birth place of Kony (the LRA leader) and the surrounding villages were also visited. In Lira district, the Barlonyo massacre site was visited as well as the neighboring district of Oyam. This is where girls were abducted in Aboke secondary school. In Kitgum, the border district with Sudan, I visited the Muchwini area. This is one of the areas where the porous nature of the national border between Sudan and

Uganda is prominent. In South Sudan, I visited Owiny Kibul and Ikotosi and this gave the study a transnational perspective.

3.2.2 The study population The study populations were members of the victim communities in the conflict area and their leaders. These underwent and suffered the atrocious actions either directly or indirectly. Some of these said community members double as victims and perpetrators. They were considered and chosen as crucial because they provided insights into the meaning of justice and the appropriate forms. They also helped to provide precursors for the possible future of conflict situations in the area, especially in view of retaliatory feelings that are widely held here. On the other hand, they also provided insights into reconciliatory and restorative possibilities, which envisaged social order, peace and stability. Further, opinions were sought from humanitarian workers, local and religious leaders as well as media persons. Some of these were sought after because they were thought to help provide a rather neutral analysis of the conflict. Overall, a sample was drawn from the above categories of populations.

3.2.3 The sample and sampling procedure I got samples from the population under focus for study. I used two main sampling techniques to choose respondents from whom generalizations were made. The techniques were snowball as well as convenience sampling procedures. Snowball sampling (also called chain sampling, chain-referral sampling or referral sampling) helped in getting subjects with similar characteristics, especially direct victims such as those that were abducted at one time or the other. Snowball sampling was most important since the study involved situations where subjects have peculiar characteristics that make them hard to reach. Some of them were

legally protected (Thompson & Phillips, 2007) and others are threats to security as perceived by the state or government.

Snowball sampling methods offer researchers little control over who can be included in the samples. This is mainly because the subjects that can be got for sampling are mainly dependent on the original subjects that were researched. In this way, it could mean that after the first subject(s) is researched, I could lose control over those who follow. This is because the first subjects would be asked to refer me to others whom they know. As a result, the final sample would be composed of only those who hold similar opinions on the aspects under study, hence biasness. As such, different places and/or centers were purposively selected based on the severity of what happened there during the conflict. Such areas included Barlonyo, Atyak, Awere, Muchwini and Owinyi Kibul among others. This helped in countering the negative aspects of snowball sampling such as biasness in inclusion of subjects. In this case, I did not ask for references when moving to a new place or center. I would move there, go to the area leader(s) and then get linked to the targeted subjects. From such subjects, some referrals could be sought within such a place or centre. For instance, while in Gulu, I linked up with some local residents whose villages were affected. Some of them invited me to their village homes, where I lived for some days while studying their way of life in the aftermath of this heinous conflict. I neither told them what my next destination was at the time of leaving any of the villages, nor ask for reference from them. This was because I had already purposively sampled my locations and knew exactly where to move next. In so doing, even if the respondents knew a similar other in another location, they would refer them to me. It helped in limiting the biasness that would ensue from such reference.

On the other hand, convenience sampling entailed selecting subjects because of their convenient accessibility and proximity to the research team. While snowball sampling was used here because the targeted populations had some similarities (in form of victimization), convenience sampling played a part because the research team members would meet some respondents unexpectedly, in the course of

moving through the region or while meeting the snow-balled respondents. This also helped to counter the biasness associated with snowball sampling.

Besides the above, some of the respondents were also identified at workshops organized by civil society organizations and charity project such as the Justice and Reconciliation Project (JRP) that are addressing these justice dilemmas in the region. For instance, JRP is an initiative in the region which is dealing with grass roots on justice issues in the aftermath of the conflict. Here, I would attend and participate in its workshops. Then, I would make follow-ups with those whose testimonies and contributions aligned with the study objectives in peculiar ways. In addition, most elders in the centers that were visited were purposively included in the samples due to their assumed knowledge of traditional conflict resolution mechanisms.

Overall, the study included direct victims (those abducted at one time) and survived death in that regard. Some of these have parts of their bodies mutilated and are left with scars both physically and psychologically. It also included formerly abducted persons (FAPS) who surrendered and were offered amnesty. Some of these were victims who later became perpetrators and are now in community. The sample also included indirect victims such as eye witnesses of the massacres (survivors) near the massacre points and relatives of victims such as those who lost their dear ones or whose spouses were raped or abused in their presence. Also included were local leaders, religious leaders, traditional leaders and humanitarian workers who had lived in the conflict area for some time. It further included persons who had migrated or moved away from this area as well as those from the southern part of South Sudan were included. The table overleaf summarizes the above samples and also shows how they were identified in the analysis of results.

Table summarizing the subjects of the sample and identifications in the analysis Category Identifier in MAQDA Recorded interview length Voice Identifier Direct victims Direct victim 1 1hr.2mins.36 secs. WS550077 Direct victim 2 Direct victim 3 12 mins. 58 secs WS550058 Direct victim 4 13 mins. 22 secs. WS550056 Direct victim 5 10 mins. 28 secs. WS550049 Direct victim 6 09 mins. 13 secs. WS550081 Indirect victims Indirect victim 1 23 mins.02 secs. WS550084 Indirect victim 2 17 mins.09 secs. WS550086, WS550087 Indirect victim 3 14 mins.08 secs. WS550039 Indirect victim 4 30 mins. 31secs. WS550036 Indirect victim 5 15 mins. 59 secs. WS550037, WS550038 Indirect victim 6 Over 40 mins Did not allow Indirect victim 7 17 mins.09 secs. WS550044, WS550045 Indirect victim 8 12 mins. 20 secs WS550089 Others Humanitarian worker1 14mins: 59 seconds WS550075, WS550076 Humanitarian worker2 04 mins.41 secs. Plus off WS550053 + off record record A retired soldier Stayed with him for 2 days Off record Local leader 1 20 mins of the 1hr: WS550074 5mins:12 secs. In a documentary movie Local leader 2 22 mins of the 1hr: WS550074 5mins:12 secs. In a documentary movie

Note here that some comments and observations were not necessarily recorded as the study involved staying with some of the respondents for some time. Spontaneous comments and actions or behaviors were heard and seen that could not necessarily involve switching on the voice recorder.

3.2.4 Conceptual scope The study uses the following concepts and terms in a way that helps readers to focus on this study in its uniqueness. Where they are used generally, it is precisely stated as so.

Retributive justice: This concept is used to refer to the process of administering justice by use of formalized punishments and through courts of law. It has already been tackled in detail in chapter two.

Restorative justice: This concept is used to mean the process of administering justice by use of traditional, reconciliatory and mostly informal locally (devised as) appropriate approaches. Its detailed exposition was already given in chapter two of this thesis.

Selective justice: This concept is used here to mean the use of different forms of justice to perpetrators of similar crimes. In this thesis, this concept is deconstructed from its negative connotations in such a way that it is understood in a positive sense. This deconstruction has been detailed in chapter seven of the thesis.

Victims: This concept is used as a term to refer to people who suffered or still suffer the consequences of the conflict either directly or indirectly; particularly those who are or were inhabitants of northern Uganda even when they shifted or were displaced to other parts. It also includes any other person who may not be an inhabitant of northern Uganda but has been directly affected by this conflict. The term is not used in a legalistic sense.

3.3 Data collection methods and instruments Three main methods of data collection were used in the study. These included intensive interviews; observation and documentary analysis. Intensive interviews lend themselves nicely to understanding conditions as they occur or appear in the field. According to Hochschild (2009), intensive interviews help in mapping out the concepts as they are being understood and used by interviewees. This is meant to be the central purpose of intensive interviews. They seek to unveil how and why people think and feel about a set of issues or ideas; what connections they make; and what meaningful linkages they do not see; as well as where they express ambivalence, incoherence, certainty, passion, subtlety, and why. Extreme care was taken when asking personal questions as they could make interviewees to inhibit some responses. Respondents were initially skeptical about the topic but as the interaction continued, they could slowly be free and many of them talked with ease. While interviewing, notes and recordings were also being taken or done respectively. In some cases, the interviewees never allowed audio recording or photographing them. The observation method was the easiest to be carried out in such cases. As I went about the daily activities with host family members in their homes, I realized how the conflict had impacted on the general social life of families in particular and of communities in general.

Observations helped in capturing not only pictorial evidences but also spontaneous actions as well as the psychological signs of what respondents said and/or did. Further, they provided avenues for checking nonverbal communication and how they actually did so. Considering the time spent in some respondents’ homes, it is possible to consider this type of observation as a form of participant observation. I stayed and engaged in many activities with several of the

respondents and built a relevant form of rapport. This was so much so that some of the experiences with them resonate in me to date. In fact some would be uncomfortable in an interview situation but relaxed and free when talking normally as we went about our daily life there. Marshall and Rossman (1995) specifically give praise to participant observation as a method that helps to understand definitions of terms that participants use in interviews. With it, events that informants are unwilling to share are observed. So are situations in which they have difficulty to describe in interviews but are shown by the actions or gestures they make. This makes the interviewer aware of distortions or inaccuracies in descriptions that are provided. While the presence of a researcher may indeed make respondents act in some self-fulfilling way, which is a disadvantage, observation as a method could not be less useful in this study.

Documents are very important since they store a lot of data that can be helpful in making any analysis. Therefore, document analysis as a research method was a very important research tool in this study too. Documentary work involves reading a lot of written material presented as documents. Here, a document is defined as something that has been written and can be read; and which relates to an aspect under study. Newspapers are an example of documents that possess a lot of information and discourses on wars and conflicts. These were therefore analyzed for perceptions and meanings of people on different phenomena of the conflict in northern Uganda. As such, all relevant newspapers, field reports, civil organization briefings and writings that were accessed were photocopied, recorded and analyzed.

Data collection instruments and tools included an interview guide, camera and audio recorder during field work. All questions on the interview guide were translated by research assistants recruited from the local research area, to those who did not understand English or Swahili languages. As translations were being made, body language and other nonverbal communications were being observed. All available and relevant documents were photocopied to help in the corroboration and analysis of verbatim and pictorial data. Although seldom used,

a questionnaire was prepared as a back-up for those who found it convenient to write rather than talk.

3.4 Method of data analysis Content analysis (specifically relational content analysis) was employed in the analysis of the collected data. Content analysis is a method that focuses on the actual content of any conversations or interactions. Words, concepts, phrases and sentences within texts are used to deduce meanings. Therefore, all interviews, discussions, newspaper articles, documents and speeches were coded into manageable categories and analyzed. Specifically, relationships between what different texts from different sources were used to make inferences about the messages. In other words, responses were extracted or re-written and scrutinized for relationships with key concepts and themes of the study. Codes and themes were developed from the study questions, especially as they related to major concepts used in respondent communities and existing literature.

A computer program, called MAXQDA was employed in making the analysis. According to its designers (as given on their website at http://www.maxqda.com/), MAXQDA is a kind of qualitative data analysis software which helps researchers to systematically evaluate and interpret textual data. It is a powerful tool for knowledge management, developing theories, and testing the theoretical conclusions of an analysis. It is a considerably easy method to learn and use. This enabled for its use in this study without many courses being attended to learn it. Although it allows a lot of space for the researchers’ subjective decisions and inputs, it was a helpful straight forward software worth of use in such a study.

3.4.1 How MAXQDA was used Based on the data collected, three projects were generated for analysis in the software. The first project was for responses from intensive interviewees. The

second was for captions from documentaries and the third was for media and/or newspaper extracts. According to MAXQDA, projects are its basic working units. They are like document files in word (DOC/X files that represent the working units in word). A total of thirty-one (31) documents were entered in the three projects. These included sixteen interview responses, three documentary captions and twelve newspaper extracts). A document in the context of MAXQDA means a recording that stands alone as a unit of analysis. An example is a complete interview with a respondent (a recorded text or voice). The three projects and thirty-one documents constituted the data sets and analysis units respectively. The analysis was preceded by reading through of all collected data and the creation of codes in the software. According to the MAXQDA manual of 2010, a code, in the language of empirical sociological research, is a contextual category, which serves as an analytical tool for the systematic analysis of data. It is composed of a string of characters, assigned to selected segments of a text. The number of codes is not restricted and colors are assigned to each code and sub-code to assist in differentiating them. The development of codes is user-controlled and is not automatically conducted by MAXQDA. Thus, the process of assigning text passages (or objects) to one or several codes is called coding. Text passages assigned to a single code are called coded segments. Showing and listing of specific coded segments in MAXQDA is done through what is called text retrieval. Therefore, through coding, themes were created in the system in such a way that whatever related to any of them was categorized and placed under such. The names and number of themes were chosen subjectively to align with the study objectives. Over all, codes were developed along the main themes of the study. And the relevant parts of the texts were extracted from recorded responses for corroborations and/or consistencies and inconsistencies examined.

3.5 The study challenges and solutions It was hoped that the relative peace that existed prior to the field trip into the study area would be continuous to allow for a peaceful collection of data. Fortunately, this was the case, especially in Uganda. Otherwise, insecurity may have interfered

or interrupted the study. In south Sudan however, it coincided with its secession/independence. This presented fears but there were no negative incidences in this regard. However, there was high suspicion from the Sudanese officers both at the entry point and in the villages. The locals could not welcome us unless we were accompanied by a security personnel or at least their approval. So, we had to report to the military and/or security establishment first. Then, we were given a messenger to take us to the community leaders, who would accept our stay there and/or give us further guidance. This suspicion was indeed justified because the people of this area have suffered the brutality of this conflict as much as their Ugandan counterparts. A mere mention of research on Kony and/or the conflict at the border post as a reason for our visit meant putting me and my interpreter aside for more questioning as others were offered visas to proceed with their journey.

It was also anticipated that there would be little or no cooperation from respondents (especially from direct victims), given the psychological effect of what they went through). There were incidents of this kind but using my psychological knowledge, they were well handled. For instance, where respondents never wanted to talk about anything, there was no reason for insisting. I would sometimes discontinue the sessions and get the answers to some of the questions in casual talks or interactions (not in interview settings). In some communities, seeing an elderly man cry is a sign of significant inner hurt which is associated with fears of an accompanying curse for those responsible for such hurt. So, my assistants were very cautious about all these and warned me in advance. Not because I was responsible for the hurt but because the tears of elders are not supposed to be evoked at any one particular moment, it is believed. Otherwise, there was no much negativity towards researching on them and this meant less time to search for willing respondents.

The political climate (especially the 2011 elections) in Uganda did not destabilize the region but somehow affected the mood of respondents. For instance, some of them thought the researcher was a government spy or some security operative.

Some divisive political statements were made but these were not treated as biased responses as earlier hoped. I attended some of the rallies and saw how divisive the country’s politics was. Whenever a candidate from other regions campaigned there, the enthusiasm was less than when the one from that region did. However, this was different from the president’s case. They would come out in large numbers. The reasons range from wanting to see the ‘big man’ (since many of them have little chances of seeing him), to listening to his promises verbatim. As is always the case, the president is a highly guarded personality. This is so much so that when he is to visit any area, the soldiers will be poured there in large numbers; especially as the security systems are not yet as sophisticated as in the highly developed countries. Therefore, seeing a president or being near him such as it is during political campaigns is rare for many there. Besides, there also existed accessibility difficulties in some parts. For instance, given the sensitive nature of the actions of the conflicting parties, security agencies would not allow me to reach some of the places of interest. In the west of Gulu (around Pabo) for example, it was intimated by a respondent that there is a grave which is heavily guarded by the Uganda People’s defense forces. In Sudan, as already noted above, there was a high level of suspicion about the whole study. Just mentioning Kony and the conflict made every security operative to want to dig for more information from us. It was good that the all the paper work needed to prove innocence were available, including a letter from the Max Planck institute.

The revelations in the field interviews evoked emotions but the researcher was well prepared to attend to them, not to become psychologically sick himself. Owing to the fact that I am a Ugandan and have experienced some of these conflicts’ effects, there was a high need for me to distance myself from the inner me to be able to produce an objective and academic outcome. I had to check myself from time to time to make sure that my inner me (being empathetic) does not jeopardize the objectives of the study. For instance, people have so many problems; ranging from basic survival needs to higher needs such as education for their matured and bright children. I would continuously tell myself that I cannot solve their problems as a person; and that I am just doing an academic project.

Other challenges related to the general doctoral study such as combining legal research techniques (which are normally extensive with conventions and clauses) with psychological research (normally brief and direct to the predictions of behavior). These were harmonized by the fact that there were enough trainings and courses that were organized or supported by the Max Planck institute to enable the researcher gain an interdisciplinary view of this study. PART II: DATA PRESENTATION AND ANALYSIS

Introduction In this part, the collected data, especially in form of narratives from respondents was organized, presented and interpreted in the context of the study’s objectives. After making entries into the MAXDA software and creation of themes and codes, the relevant sections of all entries were extracted as verbatim narratives and/or with some added clauses of emphasis and specifications or clarifications. Where such emphasis and specifications were made within narratives, they are separated from such narratives by being placed into big brackets as here [with initials MN standing for Muwereza Nathan].

This part represents essentially the empirical part of the thesis and most of it consists of the narratives, which are mostly reported verbatim. It consists of four chapters which are also consistent with the objective, themes and questions that were paused in the first part. The first chapter concerns the conflict’s atrocious actions. In it, views and opinions of the respondents about what they considered as atrocious actions are given. The second chapter regards the attitudes that members of the victim communities hold towards perpetrators of such the stated atrocious actions. This chapter is then immediately linked to the third chapter of this part, which also concerns their attitudes towards the different forms of justice. It also tackles other crosscutting aspects of information that was crucially raised but could not easily fall among the original themes. The information from all the three parts of this part combines with the reviewed relevant literature in aiding the construction of the harmonious interplay of the different forms of justice that are applicable in northern Uganda. And this is the overarching goal of the thesis. In

this case, they essentially help in presenting and arguing a case for selective justice.

The reader is reminded that most of the respondents’ or participants’ names are not real. The reasons for this relate to the safety and security risks associated with real identities of some of the respondents. 4.0 CHAPTER FOUR: THE CONFLICT’S ATROCIOUS ACTIONS As was seen in the literature review chapter, several expositions and reports have indicated that atrocities that constitute crimes against humanity and war crimes have been committed in northern Uganda (Dolan, 2002; Dolan and Bagenda, 2004, Human Rights Watch, 2009). Therefore, the task here was to get answers to questions such as; what do the victim community members perceive of such atrocities? What do they recollect and say in regard to what happened in their lives, homes and regions? And above all, what reasons do they hypothesize for such heinous actions on them, (even by their own children)? In order to get an understanding of answers to these questions, views and opinions on the atrocities that were committed in the region, were sought. Respondents were asked to describe the atrocious acts (basically simplified as bad actions) that they directly or indirectly went through. To this end, it was found out that the explanations for the actions of actors in the conflict in northern Uganda are multifaceted. While it is very easy from the macro level external view to attribute the actions to only two major forces (of the government troops and the rebel fighters), the realities and micro level internal views are beyond these two forces. It was also evident that although most rebels were abducted and conditioned to act atrociously, some of their actions were hinged on previously existing conflicts between persons, families and/or clans in some parts of the conflict area. Similarly, some of the actions of the government soldiers are rooted in the north-south divide and tribal alienations that were highlighted in the first chapter.

For example, on existing conflicts between individuals, families and/or clans, a respondent described a conflict which indirectly led to a massacre that occurred in his village. He narrated as quoted verbatim that,

“… The conflict between Pajong and Pubek clan started ever since may be 1980. The clan of Pajong is a very big clan; Pubek is a very small clan. The Pubek people are always very far, living on the other side of the river. So, some of them became friends with Pajong (and moved there)... May be, they called their brothers also (to) come... There was no problem. They just stayed there, (in a) friendly (place). So the conflict started because of the field. You know, in our place here, we have got very big land. So, there is some land they were using. The others will stay for even three, four, five years without using. So the people of Pubek started to grab that land. They said okay, this land is very free, it is ours now. This one is also very free, it is ours now. So the people of Pajong said oh, you people, you came to us, we welcomed you. You now want to grab our land, why? If that is the case, okay, you go back to your place. Those people said no, we are not going because we have stayed here for so long. That is where the conflict started...this Madop (not real name) is a chair person of Pajong clan. Also, Otang (not real name) also is a chair person in Pubek clan. That is how the conflict came. That is why … Otang wrote the name of Madop, because there is a conflict between them. That is where the conflict between them [clans: MN] started from… because of the land” (Indirect victim 1).

From the above narrative, it can be deduced that Otang implicitly planned and aided rebels to kill Madop, because of the conflict that existed between them before he was abducted. However, Otang seemed to have not anticipated the fact that his actions would also lead to the massacring of others (including his own clan members) in the area, the home place to both clans. Now, under such a circumstance, what form of justice can be applicable to this Otang case? With regard to the actions of government soldiers, one respondent explained how a child and her mother were spared by soldiers because the mother looked like them (the soldiers). He narrated thus, “… this child of… wife of my son… They were taking her. Then my wife followed them until around five miles. Then they were asking; what does this lady want? These were government soldiers…because the lady was brown, so they said these look like they are from our area. They were all brown. The boy will come and even the mother…You can even see the boy, he looks like Nyankole [the the president’s tribe: MN]… So they decided to leave the girl with the small baby.” (Indirect victim 5)

This narrative implies that the prejudices about the general appearance of some tribes in Uganda played a part in some of the actions of soldiers. For instance, if the ladies were not brown, they might have not survived that day. It then follows that conflicts such as the one under study do not appear as miracles or disasters

(Doom & Vlassenroot, 1999). They are brewed in such ways as may be the case with the above two narratives. Micro level conflicts such as between families or even clans may become contagious to involve tribes. Tribal and even ethnic conflicts such as those that seem to latently exist between Luo and the Bantu sections of the Ugandan populations may surface at macro levels. These may partly explain some of the actions of the forces involved in the conflict, and teasing out whom each party considered as the enemy during the conflict (Cunningham, 1998). Therefore, in the next sections, the different atrocious actions in the conflict as narrated by respondents are presented in detail and analyzed.

4.1 Killings and Massacres In violent conflicts or war situations, there are always losses of lives. These are through direct killings resulting from actual fighting as well as deaths arising from the war conditions such as hunger, diseases and internal displacements. Then there are always propaganda maneuvers from each of the fighting parties. This is to the effect that each side strives to clear itself of any wrongdoing or blame. Further there exist the more complex aspects such as the psychology of camouflage and/or cover up of any wrong doings. It was observed that many of these were evidenced and have reported by respondents in the northern Uganda conflict. In a documentary obtained from a workshop organized by the Justice and Reconciliation Project (JRP), a female leader and local activist stressed the fact that it is hard and unfair to attribute the blame to one group for killing people and exonerate the other. She precisely stated that, “…we can’t be sure of who killed us…these different groups [of: MN] armed people were coming to fight, and what people know is that they were sandwiched between the two and both … all these fighters committed atrocities against the people… because they all wore the same uniform and behaved in a similar way, … you wouldn’t distinguish”(Local leader1).

This narrative gives divulges information which is in agreement with the findings of a medical interventional study by Isis-WICCE (2006) which were highlighted in the literature review section. In this case, it was revealed that perpetrators of trauma in northern Uganda were either the Lord’s Resistance Army fighters or

government soldiers, police officers, prison officers and the Local Defense Forces. In the narrative, it is also seemingly implicit that victims do not know who victimized them and/or killed their dear ones. This is to the contrary; because it has been established that people have vivid memories of their perpetrators and have reported them severally (Human Rights Watch, 2005). Although such ignorance of who actually killed people may exist for indirect victims, most direct victims of the actions such as torture and/or witnesses of the killings are able to tell whether the perpetrators were the Lord’s Resistance Army fighters, government security personnel such as soldiers or any other perpetrator. The emphatic comments from a retired bishop and one of the core members of the collapsed peace-talks team further aid in elucidating this knowledge availability. He emphatically asserted that, “The people who know what happened to them are there in the villages. They know the time, the day and whatever. They know it, they are there and it is very true… The UNLA (Uganda National Liberation Army: MN) committed a lot of atrocity. The NRA (National Resistance Army: MN) also committed a lot of atrocities…That is why it is absolutely necessary for the people of Uganda to have a common memory of our recent past history in Luwero, in Teso, in northern Uganda, in west Nile…”(Local leader 2).

Now, when one says ‘it is true’ such as in this above narrative, a question may be raised as to how true it is, and whose truth is it? This is because these allegations about atrocities in Luwero and Teso have existed for some substantial time, but seem to be swept under the carpet. Nevertheless, the more pressing questions that ensue here pertain to who did what, who killed who, why and which form of justice can be applicable?

4.1.1 Killings by the Lord’s Resistance Army rebels While it is well known that the Lord’s Resistance Army (LRA) killed people, insights into the circumstances that led to such killings are important. This is not meant to justify such killings but rather, to show the complexity and difficulty within which justice may be sought and administered. For instance, the narrative about the Pajong and Pubek clans highlights issues related to past conflicts between leaders as well as signs of revenge for not only individuals but also families and clans. Following the narrative on the two clans, the same respondent

continued to explain how the massacre in his area had been brewed and eventually ensued. He expounded on it by saying that “…because there was a conflict between Otang and Madop... So those people [the rebel fighters: MN] came … up to Pajong [at: MN] about midnight. They went straight to the home of Madop... they knocked the door. They got Madop in. They brought Madop and his wife out... So they started [explaining to him: MN]; you, Madop, your son escaped from the bush with our gun. So we came … to get him and our gun. So Madop said, ah! Who is that? They said Otang. Madop said oh! Otang … I know [him:MN]. Otang is not my son. He belongs to Pubek clan. They said no, he is your son…So they started collecting people around there. Around two, they started killing people. They killed people from there; they left there and started coming this way. They also started killing people up to around one kilometer from the trading center here! They ended killing there because it was around morning. They killed about 56 people. They said they were killing people because of Otang; because Otang ran away with their gun... Otang also did a mistake. Otang came home. He went to his family. He said to his family [that: MN] Oh, me, I escaped from the bush with the gun. So be aware. I think the rebels will follow me. So his family ran away. So that is the mistake. So those people who did not know, they didn’t know. Like us, like me, just I am surviving narrowly, narrowly; narrowly…So by the time they came in my area, they got my father, they got my brother and a certain brother of mine. They killed all of them…So we started coming home. We got very many people dead. They use pangas, they use hoes, they use axe, whatever they have, not guns. We went there, we got people dead”(Indirect victim 1). Otang is currently living in another part of Uganda (mid-western) but the people of Pubek (his clan) are now enemies of those of Pajong (and all those whose dear ones were massacred). They killed people because Otang ran away with their gun. Note here that, by implication, the actions of one member of a clan have had grave consequences to the entire clan. As it may be deduced here, there are deepened conflicts between the Pubek and Pajong clans. These conflicts can only settled if Otang does something in a traditional but restorative sense (comes and apologizes to his clan); which can then also make reconciliation with those aggrieved. In the formalized criminal justice sense, such a case can indeed prove very complicated.

On the other hand, there are cases in which those whose children are in rebel ranks (either voluntarily or by force) are considered enemies and killers by proxy. For instance, my research assistant (a member of affected area) opined to me that, “…you know, these ends, when you have a son in the bush; your area is most affected. The area where you are surrounded, they come back and they kill people there and ... There is a place called Unyama, those ends where that

institute is... They could send money and they did build their home. The home was organized. Now, from there, they were now blaming this family that they have a son in the bush. They are the ones killing people and others... Up to now, they are not in good terms with those people because of that boy, yet they are relatives. And that boy died. He wanted to come back home… he was close to Kony, then Kony realized that he wanted to come back home, then he killed him”(One of the research assistants for the field study).

From this, it is clear that it can really become complicated to tease out who the enemy is from a macro level point of view. It is such micro level underpinnings that can provide reasons for the behavior of most of the heinous actions in this conflict, including killings of innocent civilians in the region. It was for instance notable that in several of the cases of the killings and massacres by the rebels, a reason was provided in some way. The reasons that were given were really diverse. For instance, a respondent recounted how a certain man was killed. He narrated that, “…they came, they abducted that boy. Their home is at a place there, that place is called Okemero. They abducted that man. They took him but accidently they just killed him. They didn’t give him time even to explain himself. The person who came was the one who came back with the message that that boy has been killed. They tied him seriously. He was resisting to go [and join their rebellion: MN] with them! So, they did not give him enough time; they just ended up killing him and then he died”(Indirect victim 4).

This implies that this particular killing was as a result of the refusal to go with them. That is to say his refusal was interpreted as a rejection of their rebellion, and depicting them (the rebel fighters) as enemies to the community. Other reasons were more of a psychological tool (of conditioning fighters and making them loyal). For instance, a respondent retorted to me that, “…remember that for Kony, for you to be…inducted within the ranks, you had to kill…; and they had to make sure that you kill either relatives or kill people near your home so that you fear to go back, to escape…”(Humanitarian worker 2).

The reason here was either to make abductees and eventual fighters into obedient merciless killers. It was also a way of curtailing the possibilities for abductees to escape from the bush, for the fear that community members would revenge on them for such killings. This is consistent with what was revealed to Allen and Schomerus, (2005) while covering views from returnees in reception centers in

northern Uganda. In fact many of them do not expect to live beyond the bush if they never won the war.

Killings are indeed the commonest among the descriptions of atrocious actions of the Lord’s Resistance Army rebels. It was observed that almost in every sampled member’s homestead, rebels had killed a person there or at least in a next homestead. Other respondents gave narratives such as: “Five people were killed under one family and we are really finished. My sister with whom we were abducted together was killed in the bush. My elder brother was also killed”(Direct Victim 5);

“My brothers were killed and now I am the only one looking after the orphans they left behind”(Direct victim 4);

“So by the time they came in my area, they got my father, they got my brother and a certain brother of mine. They killed all of them. But by that time … that night, me, I did not know if my father was killed (or) if my brother was killed. Because the people by the time some people know, because people were running in the bush” (Indirect victim 1).

It should be noted here that these are not news as most literature about killings in this war such as by (Dollan, 2002, 2004; Allen, 1991, 2005, 2006; and Human Rights Watch, 2009) among others, have concurred in expressing how brutal Kony has been in his rebellion. There is no wonder that he and his commanders are by all counts, responsible for mass murder in the region. However, a pertinently accompanying question regards the aspect of whether they are the only ones who committed these mass killings and hence the only responsible party.

4.1.2 Killings by Government soldiers Although it is more clear and undisputed that the LRA rebel fighters killed people in northern Uganda, killings by government soldiers is less clear and contentious. Narratives of respondents raise a number of suspicions about the government’s actions and innocence. One of the respondents had this to say: “Sometimes they do pretend that they are the rebels! Assuming if they took some soldiers in the bush there to fight and they run short of food, they would just pretend that let us dress like this, let us pretend that we are rebels and they have also been killing people, you see.” He continued to point out that, “… Reagan Okumu (the Member of Parliament) is still following those things

up to now because people were buried freely. People lost their relatives. Many were killed for no reason. You are captured, you are taken there, may be by mistake you don’t have any identity card; they do refer to you as a rebel. So you may not come back. So many people were killed during the process! (asked whether one can reach that place, he said)… now you may reach there, maybe after getting permission from them because after realizing, they even created a memorial there … that it is the LRA that killed people... Many people were killed there seriously” (Indirect victim 4). This narrative corroborates what appeared in the New Vision, a local newspaper of Sunday, August 30, 2009 in which Nobert Mao (the then chairperson of Gulu district) and Col. Kulayigye (the army spokesperson) were interviewed about these same claims. The army spokesperson retorted that Reagan Okumu was trying to seek political capital, to tarnish the image of the government they failed to overthrow and whose strong pillar was the army. He asserted that Reagan Okumu was in fact an ex-rebel under Mike Kilama, the commander of Uganda Peoples Democratic Army (UPDA), adding that he would not be forgiven if a search for those who committed atrocities started. The army spokesperson went on to say that where soldiers committed crimes, they were strongly punished. On the other hand, Mao said that it is true; there is evidence that between 1986 and 1996, there are many cases of atrocities committed by the Ugandan army. Unfortunately, they are not well recorded. He added that even ordinary people can speak out for themselves under a national truth and reconciliation commission. Another comprehensive narrative of killings by government soldiers was given by an elder. He divulged a lot of information regarding killings as given hereunder: “…in 1987, a Catholic brother was murdered in cold blood by the Government troops (soldiers) in their (catholic brothers') house, at Minakulu Catholic Parish in Gulu district... they robbed a large herd of cattle of a chief in Puranga. When he tried to follow them …, the commander ordered the soldiers to shoot him. Also, Labeja Yakobo Olwoch was arrested by soldiers and later his shot body was found on the roadside. Nobody knew why he was killed. Another time, some young men from Awere [Kony’s birth place: MN] were returning from work in a team called Wang Kweri. They were arrested by the soldiers. Those people of Lagile parish requested the chief to follow them and explain to the Commanders that the boys were innocent, and the chief went. When he reached Corner Kilak where the boys were, he was also arrested and later shot dead with them all. In 1988, the NRA killed over 30 innocent civilians in Purongo Sub-County, Nwoya. Also, a whole family of a man called Agoma was burnt in their houses by the National Resistace Army in Anaka Sub-County, in the current Nwoya district. On 22nd June 1989, they rounded very many civilians and shot them in Goma. They took Owor,

Odong Okul, Gericom Opok, Icema Ongom, Okema and many others from Parwec Parish, Lalogi Sub-County, Omoro. They shot them many times because bodies were found in the bush near the road to Gulu with so many bullets” (Indirect victim 6).

When asked how he could possess and remember such a large amount of information, including dates, names of people and places, he said that he had made records and that his book will one day go into the archives of the Acholi history. To this end, it is clear that despite of their complexities, people have facts that can easily be got and used in administering even retributive justice if well approached. Even some of the mass graves are attributed to government’s soldiers. For instance, a direct victim also gave a detailed narrative (with a lot of emotional anger), as here below: “There are mass graves everywhere. We know them; we know commanders who were doing this. We have their names, the victims’ names are there, the names of the commanders are there. We have it! Let us exhume them, why, exhume them; give them a decent burial, culturally. [The mass graves: MN] are not guarded now but they are there with…like there is one here, is near the army detachment. If you tamper with it, they will come for you. They are keeping watch on it. [Why: MN] because it will expose them, because, to them, the Ugandan community is convinced that nothing was done that violated. But people know. So those were belly questions that should be born in mind. (To reach the graves), aha it has to be… travelling there… because it is there…it is within a mission but I don’t think it is appropriate now. Unless we can organize, through somebody there… It is there. The mission is quite aware of that. It is within the residence of the parish priest. [So people were gathered?: MN]…killed there and buried there. It was kind of…staged, they kind of put their detachment here [so they collected people and: MN] took them there and killed… you know we had several operations: Like this operation north was a scours policy. Terrible! They killed people. They were just, they were going around to village and a village is scoured up and all the people are hurried there. If you are fortunate at the screening, you go home, if you are not… [Shows sign for shooting: MN]” (Direct victim 1).

But why could government soldiers kill people the way it is reported here? One clear reason that might have been plausible would be to clear the area of those rebelling against it. However, critiques may hasten to attribute it to the notion that the whole war is a ploy by a tribal led government to weaken other tribes, especially the northern peoples who are perceived to be politically strong (CSOPNU, 2004). This grows out of the belief that if a given population is economically strong and they are numerically more than those

who support given leaders, then they can easily change governments in seemingly stabilizing democratic environments such of Uganda.

On the contrary, the government vehemently denies having committed atrocities such as the way they are reported here. Nevertheless, there are indications that killings indeed took place even from the government side. The blame game on who killed people and how many is a long one! While those in the region, including victims and opposition politicians continue pointing fingers at government and its army, the government continues to deny and blame them for fueling and-or sympathizing with rebels and/or dissidents. To get a clearer picture of these finger pointing scenarios and denials, reference is made to parts of the interview quoted earlier on (as given here below word for word, as got from the newspaper). The army has dismissed the accusations, saying it is the LRA apologists who are trying to raise dust. Did UPDF by accident or intent kill any person in northern Uganda? Kulayigye: UPDF never intended to kill people but where cases happened like in Namukora and Bur Coro - when 35th Battalion made of soldiers, formerly under Uganda Freedom Movement (UFM) retaliated after UPDA attacked them, the commander was not only punished, but the whole battalion was disbanded. Those making allegations are trying to tarnish the name of the government and the President because elections are coming closer. Mao: Yes they did. Officers in the NRA and now UPDF killed people. There were officers like Reuben Ikondere who were at the centre of this. There were brutal operations commanded by senior UPDF soldiers using scorched-earth method. They forced people into the camps. It is our duty to speak for our people. When I was still an MP, I compiled a lot of evidence but the UPDF led by then Colonel and now Brigadier Charles Otema, raided my office and took away all the files. But you know even after 50 years of genocide in German there are some Nazis who are still being hunted.

Dr Olara Otunnu, who recently returned to the country, said he would produce evidence of atrocities the UPDF committed in northern Uganda. Is this his beginning? Kulayigye: This is the agenda I have been telling you. He has been out of the country since 1986. Did he film it using satellite? He didn’t know Uganda had changed. That’s why he was making those genocide allegations to provoke us to arrest him but we didn’t. The ICC officials were here; they went to northern Uganda, talked to people and they never got a complaint about the UPDF committing atrocities. That is baseless propaganda.

Mao: These are things we discussed during the Juba peace talks. They are part of the peace talks because if we say government is more superior to LRA, then we may have a setback.

According to the list, more people were killed by the UPDF. Is this true? Kulayigye: Ask yourself what happened in Barlonyo? In Barlonyo alone, the LRA under the command of Okot Odhiambo killed 220 people. In 2003 in Patongo, Pader, people were killed and cooked in a pot. In Atiak, Vicent Otti survived an attack by students because of atrocities he and the group were committing. So what are they talking about? Mao: Actually what I know is that UPDF is responsible for Internally Displaced Camps (IDPs). And as far as we know, the number of people who have died in the camps is higher than the physical killings. What we condemn is the policy of forced confinement of people in camps. It denied people food and health care. These IDPs camps are graveyards. But if you are to count those killed, of course LRA committed lots of killings. Shall we see in future this evidence being handed over to International Criminal Court (ICC) to prosecute accused UPDF soldiers? Kulayigye: That is the journey they want to take. But if they knew these crimes were committed before, why didn’t they take this evidence there. Why now? Mao: For us, we believe in putting the past behind. We in Acholi believe in reconciliatory justice not punitive justice. If we are to restore relations with other regions, we need reconciliation. It is not grand-standing that will work here, but reconciliation.

How would one believe that the UPDF did not kill anybody during the two- decade war? Kulayigye: Because our policy is clear where we have been. Those who died, it was individuals not UPDF. Mao: UPDF obviously killed. There are those who were killed in the open. One example is Peter Oloya alias Yumbe. He was my strong campaigner. The UPDF raided a prison and shot him. We have never seen his body.

Is the UPDF disputing the numbers of Acholis killed or do they believe they did not kill any person at all? Kulayigye: For us in UPDF, even one Ugandan dying is unacceptable. It has never been our policy to kill people. Mao: That's the problem I have with President Museveni and the UPDF. It is moral dwarfs who compare UPDF with LRA or President Museveni with Amin. It's unfortunate to hear Museveni saying he is better than Amin. It's an abuse to him (Museveni). Surely how do you compare Kony's standard to the UPDF? It's deplorable!

From this extracted parts of the interview, the ‘we’ and ‘they’ connotations are very evident. This is likened to the contributions of Cunningham (1998), who, while contextualizing the conflict in Northern Ireland used the enemy systems theory to show how groups of people having common threats according to their perceptions decide to act together and label others as enemies. In this way, they act together and defend each other’s behaviors and actions. In some of the cases, the government justified the use of torture by referring to the need to gain relevant security information. Just as one of the respondents (a retired soldier) hinted, to gain access to information about the whereabouts of the rebel fighters, some level of torture would be applied to those suspected to be hiding them; but not such massive killings as described here. Moreover, there is an implicit acceptance for wrong doing from the government side, but it is not clear as to which kind of punishment was meted on those culpable, at least from victims’ view point.

4.2 Torture The use of torture to extract information from perceived enemies is not new. It has been used severally, though perpetrators find ways to conceal or deny such use (Danner, 2005). They use others as facilitators and will never acknowledge that it is ever actually used. In fact, some have got away with it (Pyle, 2009). Torture is an action in which pain (physical or mental), is purposively executed to punish, intimidate or compel any person to divulge any information relevant to the motive of the torturer. It was observed that most respondents perceived only physical torture, such as being beaten, having part of the body cut off or being forced to carry heavy loads and move long distances. Psychological torture was described either by referring to the actions in some way and/or by exhibiting emotional actions when it came to the mentioning of what happened. For example, some of them would shed tears instead. It was clear, as expressed by respondents, that both the government soldiers and the rebel fighters tortured civilians in several ways.

4.2.1 Torture by Lord’s Resistance Army rebels

People in the affected area have fond memories and vividly narrated of torturous actions that were inflicted on them, their dear ones or others in the region. One of them explained narrated that, “…the common thing I know is (that) these people were torturing civilians…in the area that they know they support the government. That is where they would do a lot of havoc” (Indirect victim 3).

From such a narrative, it can be observed that rebels defined support for government as enmity with them (Cunnigham, 1998). In essence, they had this notion of defining ‘the friend of their enemy is their enemy’ or ‘the enemy of their enemy is their friend’. Indeed, people were caught between the two forces since each would claim that they were supporting and hiding their each other’s enemies.

Rebel fighters tortured some of their captives as a form of a punishment or making them hardened fighters and/or for aiding them to learn the hard conditions of the bush. Such punishment was unpredictable and/or was unfairly meted. Even under extreme conditions caused by rightful enemy, the UPDF one would be punished to the level of developing scars. One victim recollected and narrated how he underwent such torture. “…the UPDF was shooting, I fell down and broke the radio I was given to carry. So they beat me seriously and was injured here [showing the scar: MN]…”(Direct victim 6).

As had already highlighted, torture is used for extracting information from those tortured. Initially, civilians supported the rebels and could hide their whereabouts when asked by government soldiers. It was therefore not surprising that most respondents blamed government soldiers more than the rebels for torture. But governments will always deny or find legitimating arguments for such torture (Danner, 2005). This is not new. Authoritarian or even democratic governments use torture through their system of facilitators, albeit never being included on the list of options. As Huggins (2010:84) put it, “torture perpetrators come and go…However, as long as the facilitators and organizational arrangements exist for nurturing, justifying and/or hiding torture, new torture perpetrators will replace old ones, accompanied by new or modified enabling ideologies and the ad hoc

legal arguments for legitimizing torture”. Did the Uganda government torture civilians, and how has it concealed it?

4.2.2 Torture by government soldiers and military operatives It was observed that government, through the soldiers is severally accused of torturing civilians by several respondents. Below are extracts of narratives that show how government, despite its vehement denials will never change their stance: “…How they do treat people for example when they come at your place and they are trying to inquire that oh, did the rebels pass here. How they always treat you, it wasn’t good. Besides that, there were many people who were taken by government. For example, we used to have certain…this group of people called RDCs, they would capture people; they would take a lot of people…Many people were buried somewhere there you see. You don’t event [know: MN] why; they come, when you [are: MN] into town maybe, you [are: MN] just picked. There is a lorry here, they call it Kyefari. So [in: MN] that lorry, they took a lot of people there [in the barracks: MN]. You are tortured seriously. And up to now, people are still demanding” (Indirect victim 4). Another respondent also explained that, “…I remember there was a time when the government came up with their order that if it reached 3pm, they don’t want to see you moving maybe three kilometers from town. So there was one day, I came from town; that was already 2003, 3004, I came from town. I wanted to see these Wazei [Swahili word, meaning old persons – his parents: MN]. Then when on my way back to town, it was around 2.45 (pm) there. Then I reached the roadblock for the government. They also beat me seriously. Then I said no, me I heard that the order said that from 3 and beyond and it has not yet reached 3 [pm: MN]. Then they beat me seriously and I was taken to the barracks. I was only lucky because one of my uncles was a captain by then. He is now a Lt. Col (name withheld). Then I was released from there. So that is what I met during this war” (Indirect victim 3).

Then a humanitarian official referred to a direct victim’s torture and said,

“…Mr. (name withheld), who … became a victim of the conflict because he was arrested, and he was beaten, he can no longer function as a man, because they speared his Magene [meaning testicles: MN] with sindani [meaning needle: MN], you know, all those kinds of things, tying there bricks, by the movement government [the NRM/A: MN]. Those are the people who can talk of the atrocities we are talking about. And that is crime against humanity you know” (Humanitarian worker 1).

Another one narrated that “My name is (withheld). At one time, I sat under my mango tree in 2002. I saw some soldiers coming, about seven of them. I ordered my children to run away. They hurried to me and asked me why the children were running. I answered that I don’t know, I even (also just) saw them running. I later discovered that those were the UPDF. They arrested me, beat me and moved with me for long and later left me. They asked me who lit the fire yesterday, they injured my back” (Direct victim 2).

The retired soldier corroborated such narratives when he explained that sometimes they would cane some villagers as they went searching for rebels. This would be so in cases where they discovered that such villagers knew where the rebel fighters were but could just say Bangeyo (a Luo phrase for ‘I do not know’). All these are in consistence with reports that were made by the Human Rights Watch (2005, 2009) about torture by government soldiers who continue enjoying impunity, which were already highlighted in the literature section of this thesis. In fact, when listening to such revelations, one is humanly forced to pause at some level and wonder why and how the International Criminal Court would not hear and/or use (if they heard) such revelations to bring charges against government officers, especially the leaders of the Ugandan army. Even a lay person can interpret this as outright selective justice in its most negative sense. To make matters worse, they forcefully moved people into protected displacement camps whose conditions were at best massacre centers and at worst graveyards.

4.3 Displacement and inhumanity in camps As to whether displacement is an atrocious action may be debatable and it is not such a debate that makes its inclusion here crucial. Rather, it is included because it was severally mentioned among the bad actions by victim community members. It may also be considered atrocious by considering the inhuman conditions that

followed such displacement. It can, from a critical view point be interpreted as a trap set for the people to die. Indeed displacement is highly resented from the victims’ viewpoints. It is in this same vein that many of the respondents never blamed the rebels for the widespread displacements that they underwent. In a bid to be able to spot the rebel fighters or identify them, the government forcefully concentrated whole populations of northern Uganda into camps (Allen, 2006; Damla, 2006). The outward reason was to be able to isolate rebels from innocent civilians. By then, it was apparent that rebels were disguising themselves as civilians due to the initial community support that existed. However, it is this forced concentration into camps that victim community members perceive as displacement. In fact, few respondents blamed the LRA fighters for the widespread displacement in the region.

The respondents’ narratives in this section show how displacements were mainly blamed on the government at the expense of the rebel fighters, who displaced many as well. One of them goes as hereunder: “… to me, it could be a mistake because… I just call it a mistake, because the government should have not waited up to that situation, you see, because people were settled at their homes and knew it was the government to protect them. Now again, when people were taken into the camps, people suffered really, people suffered and that effect is still there up to now. I don’t know when it will end because people were taken. You find in a small hut, people are combined. You have your father there; sometimes even children who are very big, you sleep there, and there is no food …people were really living in a miserable state. So the government did a very big mistake to take people in camps. It was very bad. In other words, government, it was its role to protect the citizens” (Indirect victim 4).

This narrative stresses how the government failed in its role of protecting civilians and taking all required steps with regard to internal displacements in this conflict. Instead, the government soldiers were sometimes the enemy of the people, most especially when the rebel fighters engaged them. Allen (2006:55), who was staying in Atyak in 2005, witnessed and reported of how the soldiers’ behaviors were very revealing. They “…moved around the camps shouting at people in Swahili…they made everyone put out the fires and lights, and anyone found moving around the main street was beaten”.

Another respondent offered his explanations and interpretations, narrating that, “…the communities, the society here underwent an experience; a serious gross violation of human rights. The laws of the war were grossly abused. In the first place, they bound people into, initially were called protected villages. People were forced against their will. The army council sat in Gulu and resolved that all the villages are evacuated and the deadline was set, ultimatum was given, and people were forced to move; and leaflets were dropped around with choppers. Within one week, leave, and people hesitated a bit” (Direct victim 1).

There is a vivid corroboration of some aspects of this narrative with what was written by Tim Allen in his book about ‘Trial Justice’. For instance, he pointed out that forced movement of people “…became an integral component of the Ugandan government’s anti-insurgency policy. In some places, anyone who refused to move from their rural homes was forcibly displaced…” (ibid: 53). Ofcourse no one among locals would willingly leave his home and move to ill prepared camps. Many regret to have had to move any way. An elder lamented that “…we wouldn’t be here like this, bush or town. Town, I was renting almost four rooms because, you can see how big my family is…so I could not manage to stay in town because it was very difficult. Your son is there, you can get yourself there the wife of your son [sulks and shows the discomfort of being together in the same house with the wife of his son, his daughter-in- law: MN]. We really got problems here. Sometimes…I could be in town but mummy would really struggle” (indirect victim 5).

Originally, people were practicing Bedo Alup (a local phrase for ‘hide and seek’) with the rebels. This is when they would hide during the night in the bushes and go back to their homesteads during day. Later on, the government perceived this as a way of hiding the rebels and rightly so because they disliked it (CSOPNU, 2004). As a result, government decreed that all people should leave their homes and move to protected villages. It was more of a counter insurgency strategy than a protection strategy. Unfortunately, these protected villages were not as safe and/or as protected as they appeared to be called. In many ways, the government appeared not prepared to deal with such forced and haphazardly organized displacement. Coupled with political statements and negative metaphors about

the affected communities, there has existed and still exists a perception that the state has been indifferent to their suffering and marginalization (Green, 2010) as highlighted in the literature review.

One elder remembered that a leader in the government had quoted a metaphor and which stated that, ‘never laugh at your co-wife when she is being beaten, because the same stick that is being used on her will be used on you’. This meant that the northern tribes were originally happy when those in the southern and southwestern parts of Uganda were suffering; and that it was now their turn to suffer. In another home of a respondent, one member of the homestead recollected that a government official had also said at one time that [the Acholis are like grasshoppers, which, when collected into one container, will always start to eat up each other]. This related to the fact that the Lord’s Resistance Army rebels are Acholis and they were killing fellow Acholis. It also meant that by collecting them into camps, the government was aiding them to kill each other like grasshoppers. In essence, people from other tribes (in the south) were indifferent about the suffering of the northern tribes and could make comments such as ‘the grasshoppers are eating up each other.’

In spite of such comments, which were normally highly politicized, it may not be objective to entirely blame the actions of the government under the circumstances that were prevailing then. What would it have done when it could not differentiate between a civilian and a rebel? The circumstances under which the war was being fought can be likened to a scenario where several snakes enter a cupboard full of glasses. In a bid to kill the snakes, there exist only two options. The first is to find ways of removing the glasses and then beat the snakes. The second is to beat the snakes amidst the glasses and break them as well. In this case, government had to remove the glasses (the civilians) to be able to kill the snakes (rebels). Unfortunately, the glasses (civilians) were not placed in a safe place after being removed from the cupboard. They were being broken (killed) at the places where they were placed (camps). Moreover, even the snakes (rebels) followed them and broke them as well (killing and maiming them indiscriminately). Again, this is in

agreement with what Allen (2006:53-54) wrote, stating that “…the security of the people living in camps was very low…each camp was supposed to have an army detachment, the soldiers … notoriously failed to respond or …run away…” when rebels attacked. Furthermore, apart from driving the population into the camps and establishing a military wall to curtail them from moving out to their gardens far away from such camps, there were little attempts (if any) to provide for their basic needs such as food. They were at the mercy of charity organizations (mainly) international humanitarian organizations.

From a legal front, the question of why the policy of concentrating whole populations into the ‘protected’ yet ‘unprotected’ camps was not considered a crime by the International Criminal Court may seem political but plausible. It may be argued that displacement and internment could amount to crimes under international humanitarian and human rights law. After all they are great ‘relatives’ under their ‘parent’; International Law. Displacement and internment was a war crime under the Geneva Conventions and also qualifies as a crime against humanity. Well, establishing the motive of a criminal is an uphill task but at least, government operatives and/or personnel knew very well the consequences of such a policy given the fact that there were seemingly serious omissions to that effect. The Geneva Conventions provide vividly that if displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions, including shelter, hygiene, safety and food. These measures were in dire absence, safe for the intervention of the humanitarian agencies. Could this forceful displacement of populations not constitute a crime against humanity under the Rome state? Couldn’t it be part of a widespread or systematic attack, directed towards a civilian population? These are questions that may be well answered by our ‘learned friends’, the lawyers. Otherwise, to a lay person, it is clear that the creation of camps, and forced displacement and prolonged confinement of people population in them, with little or no basic provisions, all amounted to violations of humanitarian laws and conventions.

It is within such contexts as above that government responses with regard to the general internal displacement as an atrocious action in northern Uganda should be understood. It is also important to note here that through observation, evidence of the physical effects of widespread displacement is immense in the region. For instance, as one moves throughout it, many of originally inhabited parts are seen to be dotted with (compound grown) trees as signs of habitation. This is more so as the houses were mainly grass thatched and walls made of mud and wattle. While some were burnt down by either the fighting forces or wild fires, many just collapsed due to lack of maintenance by owners. Through participant observation, the suffering of many of the community members with regard to travelling from where they relocated to where they till their land (and original homes) could be shared while in the field (see photos number 4-5 in the appendices).

4.4 Theft and robbery Robbery and vandalism are common actions in situations of violence, chaos and/or war and fleeing. As owners struggle to find safety, thieves and robbers are always busy looting. In the case of this conflict, most of the robberies were by either the rebels or the government soldiers. Respondents attributed many thefts and robberies to government soldiers, much as they did to rebels or other persons who used the conflict as a cover for them to steal and amass wealth. An elderly man narrated of how a Catholic Parish in Amuru was thoroughly vandalized by the National Resistance Army commanders. He continued to explain that they carried away a new generator and other easily moveable and portable properties. And that in August of 1986, the National Resistance Army raided Friesian cattle at Gulu Town Secondary School belonging to a head teacher and drove them southwards across the river Nile. They also robbed a large herd of cattle of a chief in Puranga. When He tried to follow them as they took the cattle towards Lira, the Commander ordered the soldiers to shoot him. Similarly, on 9th October 1986 (Uganda’s Independence Day), a huge kraal of exotic cattle were robbed from a ranch in Nwoya for their independence celebrations. They belonged to Onegi Obel, a resident there. A retired soldier also alluded to this kind of theft by asking

what one would do if he was hungry in the bush yet there is an unattended or abandoned garden of cassava (food).

It was also noted that officers in the Uganda People’s Defense Forces were using the conflict to siphon government funds and enrich themselves. Similarly, some of the people in region especially the leaders benefited from the conflict through corrupt ways. For instance, a humanitarian worker narrated that, “… Leaders in this area, some of them have benefited through this war. Do you see these many new houses? Some of them are due to this war. Some of them I am told, as we talk now, they even tell Kony to come back and continue fighting because they benefit. They even don’t want the ICC’s involvement in it”(Humanitarian worker 2).

It is also observed that most high ranking officers in the army have luxurious homes; some of them (even) in the war tone region itself. Some also are alleged to have used the war situation, misery and poverty of the masses to cheaply acquire (buy) large junks of land. In a free market and capitalistic economy, such allegations reach nowhere in legalistic senses. However, sociologically, people are very uncomfortable watching a few of their members enjoying the luxury got out their suffering. They do not easily imagine or perceive a situation where there is justice to them under such conditions.

In summary, this chapter has underscored the fact that there are several actions that people considered atrocious. The impact of these actions can also be reflected physically in the area as well as on the psychosocial and economic wellbeing of the people there. For a fairer picture of this impact, please refer to the pictorial section 7-12 in the appendices. The chapter has further shown that there are several reasons why some of these actions were executed; and that the perpetrators of such actions are diverse. Moreover, the chapter has also highlighted the fact that the two sides (of government and rebel fighters) are all to blame for the actions. And finally, these actions have had an impact on what people think or perceive of the two said sides and hence their treatment in terms of bringing them to book. In the next chapter, these perceptions are explored.

5.0 CHAPTER FIVE: VICTIMS’ PERCEPTIONS AND/OR ATTITUDES One of the main aspects under consideration in this study concerned the attitudes and perceptions of members of the victims’ communities towards the perpetrators of atrocious actions against them. These attitudes and perceptions consequently affect the choices of the form of justice in part. It needs to be acknowledged from the onset that whoever people like or dislike makes them say or not say certain things about him or her. Moreover, liking or disliking a person is dependent on the relationship, actions and behaviors of such a person towards them. Even at individual or micro levels perceptual formations is very critical as it may disengage and aid in disempowering individuals to act weirdly (Bandura, 1990). Therefore it is important to note that the impetus for reacting or commenting negatively or positively on perpetrators and their activities are partly derived from such likes and dislikes. Different people in the victim communities of northern Uganda expressed both positive and negative attitudes towards the ruling government and the Lord’s Resistance Army (LRA). Much as the LRA openly committed atrocities in these communities, some good number of victimized persons still sympathizes and likes them. One of the explanations for this is the fact that many of those in the LRA ranks are children of such victims themselves. They are their loved ones who have been turned into hardened killers by their captors. The second explanation emanates from the tribal connotations and negative portrayal of the northern tribes by other tribes (CSOPNU, 2004), especially from the southern and southwestern parts of Uganda.

It is therefore no wonder that when some of the rebels (including the commanders) surrender to government soldiers or are captured, many victims express their sympathy for them because such are their children or tribes-mates. Even Kony himself (the rebel leader) is not a hated man in his own home area by

a substantial number of people! It is in this same regard that it may not be surprising to hear comments like, ‘Joseph Kony is not a bad man; he is just being persecuted because president Museveni does not want to share power’ from an elder who lost several children in the conflict. In the Monitor (a local newspaper) of Wednesday, May 17 2012, Akena, reports that “…the family members took turns describing how Acellam [a captured rebel commander of the LRA: MN] was a good man; how he helped feed the family and how his presence in the bush made them to be labeled ‘rebels”.

The reactions to the Kony 2012 video, a documentary that was produced by called Invisible Children (a humanitarian organization) in early 2012, further elaborate on how people perceive Kony and other perpetrators of the conflict in northern Uganda. It was widely shared on the social media and attracted varied reactions. Firstly, there are those who supported it and could re-blog and/or re-tweet it. Then, there are those who really felt infuriated by the fact that it was a one-sided show. Others questioned why Invisible Children waited for that long to produce and share the video, why now and for whom.

It is also important to note here also that some of the negative attitudes towards the government were inhibited by victims when active fighting in the region was going on. This was considered safe for them as the main witnesses, since they were being questioned from time to time by all parties in the conflict (including government, rebels, their collaborators and others stakeholders such as the personnel from humanitarian agencies). This is also the very time when the International Criminal Court carried out investigations that led to the indictment of five of the rebel leaders. Some of the victims withheld many of the facts that would incriminate the government personnel for fear of the repercussions after the court’s personnel left. With the return of relative ‘physical peace’ in northern Uganda, people seemed to have the courage, confidence and space to express even their negative and inner feelings about all the fighting forces that plagued their region and homes. Most of the respondents narrated the bad actions and stories of what government soldiers did in their land, just as they did for the Lord’s

Resistance Army fighters. Therefore, in the next sections, insights into perceptions of people in the victim communities towards perpetrators are given as they responded to the question of who should take blame for the atrocious actions in the region.

5.1 Attitudes towards Lord’s Resistance Army fighters Respondents expressed their negative feelings about rebel fighters, as much as they did for government and its soldiers. This is in agreement with what was expressed in a survey by Pham et al (2007), as already seen in the literature review. In this survey, people in the affected communities felt that the Lord’s Resistance Army leaders and the government should equally be held accountable for atrocities in the region. For this case, the leader(s), such as Joseph Kony, Vicent Otti (believed to have been killed at the orders of Kony), Raska Lukwiya (killed by the Ugandan People’s Defense Forces), Okot Odhiambo and Dominic Ongwen are generally condemned. It is no wonder that they are even indicted; and all those who are still believed to be alive are on the wanted list of the International Criminal Court. However, questions of why victim communities continue supporting and/or sympathizing with the Lord’s Resistance Army fighters still linger. This is notwithstanding the fact that they and their dear ones have been tortured, maimed robbed and/or killed by them. One of the respondents, a retired government soldier who fought for over six years in northern Uganda opinionated that the Acholi people want the war to continue and that they support the rebels either indirectly or directly. Moreover, because of the belief that government intentions for them were negative (Senyonjo, 2005) the community members initially supported Kony’s rebellion openly. It was not until government had to force them into the protected camps (Allen 2006). It was only until the rebels started to maim, kill and burn them that their support for Kony changed against him to some level. It follows that if they (LRA fighters) attacked only government detachments, they would have never been blamed by the affected communities. Even if he is now a wanted man, there are those in these communities who feel that peace talks with Kony are a better option. The explanation of young fighters as being children who were abducted or captured

and conscripted into rebel ranks may be offered here (Dolan, 2002). But why do they sympathize with the captors themselves? Further, if a child turns against you and wants to kill you for whatever reasons, isn’t such a child your enemy since he threatens your life?! This is why it may be practically difficult to locally administer justice under such circumstances. Nevertheless, people in Uganda as a whole and around the world perceive Kony as a terrible, barbaric and wicked man. He could by no means escape investigations, had as they may have been (Southwick, 2005). He is currently listed among the notorious war lords and wanted terrorist personalities in the world. The New Vision, a local newspaper in Uganda conducts an annual survey on the best and worst people of the year by asking people to suggest the best and worst personalities in the country. In this survey, the Lord’s Resistance Army rebel leader, Joseph Kony, is consistently the worst man of each year. In 2007, the people blamed him mainly for killing his comrade in crime, Vincent Otti and spreading terror in northern Uganda for decades. A respondent remarked that “…we blame Kony also because he is (an) Acholi but he is not fighting government. He is fighting Acholi... he does not go to fight government in the barracks, but…comes in your home, kills you, collects your properties and goes. That (is why) we are blaming Kony also” (Indirect victim 8).

This respondent’s narrative seemingly confirm the fact that if Kony concentrated his attacks on government (their rightful enemy), then he would never be blamed by them; and their support for him would have never waned. But Kony seemed to use the psychology of terror infliction (Kassimeris, 2006), to make his point that he is not as weak as government had always assumed. And of course, these rebel fighters also killed a number of government soldiers too. Also, in defining the enemy, Kony realized that even members of his own community were siding with government by not resisting moving to camps. Albeit all these, both sides are to blame for the suffering through which communities underwent. Another respondent agreeably stated that, “…I blame both sides. Because…beginning with the rebel’s, there might be something that made them to enter into the bush... that something …, they have not (been) specific; they have not been giving out what exactly made them to go into the bush. Even though you ask them that question, they will never give you the answer. What they will say is that for us we entered (the bush) because we wanted to save Acholis land, but they went that (far)

forward. They went up to Lango (and) Teso; I don’t know the kind of land they were protecting there. So the blame goes onto them”(Indirect victim 4).

The aspect of land and the suspicions about the clandestine acquisition by those in power surface severally among people’s thoughts. It is no wonder that if some of the rebels convinced others to join the rebellion with for similar reasons. In summary, as already noted here and in chapter one of part I, Kony and his commanders are not easily defendable in the face of law or even common sense. While it is understandable to sympathize with those who were abducted and conscripted into the movement, it may be surprising to observe that people still sympathize with Kony. However, this can partly be explained by the negative perceptions of people towards government, the other party in the conflict.

5.2 Attitudes towards government As was pointed out earlier on, many people from northern Uganda tribes generally and originally perceived the current government as one which is unfriendly or even an enemy to them (Green 2010, International Crisis Group, 2003). This perception was exacerbated by the torturing of some of them by soldiers as well as the forced displacement of whole communities into protected camps leading to the death of many of them (Allen, 2006). The camps provided easy targets for the rebels to raid and abduct their children.

According to one of the victims, soldiers, especially the commanders were using people as a human shield. He was himself a victim of some of the torturous activities of the government soldiers in northern Uganda. He expressed his negativity about government soldiers throughout the interview and interaction; and had very little (if any) positive appreciation of the government’s current rehabilitation and reconstruction efforts. He was of the view that if they think they are innocent, let there be an independent inquiry into what happened here during this war. He said that he had documented a lot of facts about the war. He showed me some old papers from which he could occasionally check as he answered the questions. Surprisingly, he never allowed anybody to touch and/or look at them! This shows how negative he was about the government. His anger for government

and the soldiers was evident in his emotional expressions during the interview. He strongly believes that the current government has a hidden agenda regarding the future of the Acholi land. Ssenyonjo (2005) hinted on the same, observing that the Lord’s Resistance Army perceived the current Ugandan government to have intentionally under-developed and impoverished northern and eastern Uganda as a political tool of control and repression. Moreover, this perception is seemingly widespread among the northern Uganda communities. It was vehemently echoed by several respondents in this study. For instance, an elder reechoed to me that, “Like I said; nobody can defend the rebels because they really did bad things too. But they are not the only ones as I have already said to you. So, both government soldiers and rebels are blamed… if I was a judge, I would not listen to this government’s words only because that government was also fighting and killing” (Indirect victim 6).

Similarly, a young man explained that, “… for me, I can blame the two together; the rebel(s) and also on the side of the government. Because if at all the government was good, these people were not going to rebel. And these people [who: MN] also went to bush, instead of doing what they were supposed to do there; instead of fighting government soldiers maybe or facing government soldiers, they also again turned to the civilians. So I blame all the two; but in fact the cause of the problem was from the government side as I think. Because I remember when Museveni came into the power, when even we have not yet started running here, people from Nwoya district were already being tortured. Others were being displaced by the soldiers. They were also grabbed from there and then taken to Karuma that was 86. So I think that was the cause of this conflict as I think” (Indirect victim 3).

The young man’s narrative points to two other issues that are of relevance to the work as well as the timing mishap for the International Criminal Court. The first is the fact that there are atrocities that took place before July 2002, over which the Court has no jurisdiction. Secondly, the conflict has its roots far beyond what is seen now. As was noted by Doom & Vlassenroot, (1999:7), this conflict “…is not a sudden or inexplicable disaster, but the outcome of a long political process wherein both the harsh struggle for power and the use of violence became institutionalized”. While it is true that the National Resistance Army (NRA), which transformed into the Uganda People’s Defense Forces, was a more disciplined side in their fight against the then north dominated Ugandan

government forces, their rivalry with the north seemed to have instigated extreme levels of mistreatment for some civilians.

Following such mistreatment by the advancing NRA, people never trusted the government. This made many to voluntarily join the subsequent rebellions. To date, these feelings of hate and rivalry silently but significantly permeate the north and south. The same feeling makes many of them to think that it is the government’s ploy to sustain this conflict in this region (CSOPNU, 2004), so that the people are fully incapacitated.

From newspaper comments that follow a news feed on a newspaper website, one gets a sense of what people feel about this conflict and how it is and was handled. One comment read as follows “I think the "Kony" issue is a sort of game. The game meant to blind fold the local people here today and tomorrow there. Imagine the whole world can never come to whereabouts of this animal [meaning Kony: MN]! If they do, where is he? Why can't we try to finish up with him at once and save the rest, or we want headlines always to continue on abductions and rape cases? I am bitterly sorry for this kind of situation with no help.” Another one commented thus “When will M7 [meaning Museveni- Ugandan president: MN] be investigated and arrested for human rights abuse of Ugandans in beginning a falsified civil war to fight an elected Government of the UPC in 1980 and which has lasted up to today's 2010 dictatorship in Uganda. Since then, hundreds of thousands have died through hunger, poverty, diseases, discrimination and wars. We want to see m7 arrested and prosecuted over his blood stain in the pearl of Africa”.

All the above show that there is an existence of high levels of bitterness and retaliatory feelings among the victim community members towards government than towards the rebel fighters. These consequently affect the kind of justice that can be preferred or chosen by these victim community members for those in

government and those in the rebellion if such the opportunity to choose existed anyway!

5.3 Attitudes towards forms of justice As has been observed, especially from the field responses, the perceptions of people from the victim communities towards the perpetrators of atrocities have a significant effect on their perception and/or choice of the forms of justice. For instance, those who perceive the government as unfriendly to people from their region may not easily believe that national courts can impartially and transparently administer justice. They may rather support either the International Criminal Court or local forms. There also exists a varied discourse of these justice processes through members of parliament, civil society and local leaderships. This is more particularly because most of the prominent politicians from this area are from the opposition. They rhetorically use the war and its effects in more of a populist way to garner support of ‘the people’. Hence, the phrase ‘our people’ denotes those from this particular region in most of the speeches of politicians from this region even when they are meant to represent a wider public. The people get confused and cannot easily understand what each form of justice is likely to yield better results for them. For instance, one of them stated that for them, they “…are now confused, because we are hearing about ICC. But ICC, I don’t know whether ICC will go in the bush and get where Kony is…”(Indirect 8).

Although some of the attitudes seem to have been positively affected to a certain extent by government rehabilitative and reconstruction intervention services offered in the transitional period, people who are historically biased are skeptical about such reconstruction interventions in the region.

The other pertinent question is what the local person understands as justice. It may not necessarily be that when a perpetrator is taken to court and/or imprisoned, then justice is done to them. This is more so, when such a perpetrator comes back

and lives among them as if nothing happened. Some of them even lead better lives than those they offended. The detailed exploration of the aspect of attitudes towards the forms of justice is done in the next chapter by analyzing the respondents’ choices and views about them (justice forms, including local forms, national and international courts). 6.0 CHAPTER SIX: FORMS OF JUSTICE AND CHOICES 6.1 Introduction Every society has its norms and values that govern its co-existence. While under norms, people’s behaviors are regulated by positive or negative sanctions, values are inculcated through the socialization processes. The Luo peoples (including the Acholis and other tribes of northern Uganda) have norms and values which are uniquely identifiable with them as a people. These norms and values are continuously passed down to the young ones of each generation.

The imparting of the above norms and values is informally and unsuspectingly done during and/or at Wang oos, burial or funeral ceremonies and at grazing grounds. Wang oo is an evening and/or night fire place where people sit and tell or listen to educational tales and stories. Through participant observation, this socialization processes were understood while in the field (See photos number 7 and 8 in the appendices). Although the elders appear to be the custodians of the norms and values, the teaching and direction is seemingly done by everybody intuitively after they are learnt. In this way, their young ones are taught to observe the norms and values of their fore fathers. Through observations, it was noticed that stories of this conflict are being told to young children as they grow. Astoundingly, those who dislike the government instill hatred for it among their children and the reverse is true for those who like it. The same is done for those who like or dislike Lord’s Resistance Army fighters.

The Acholis’ normative processes that relate to the regulation and resolution of conflicts, as well as handling of offences are collectively called Mato Oput. The concept of Mato Oput was extensively explored and findings on it are elaborated in the next section. On the other hand, there are formalized forms of justice which

are generally considered universal for people in all societies in any given country and/or world at large. These include national courts of judicature and the International Criminal Court at national and international levels respectively.

For various reasons, people’s perceptions about these forms of justice in the case of the conflict in northern Uganda are also varied. These were all sought, considered and are presented in the different sections of this chapter. The aim is to help in teasing out commonalities, strengths and weaknesses of each so that their interplay (especially as drawn from what victims like or dislike about them) may be sketched out as a fair approach in the aftermath of this heinous conflict.

6.2 The local traditional form of justice While writing on justice and healing, in his book entitled ‘Trial Justice’, Tim Allen (2006:129) rightly observed that “…the Acholi people have their own alternative approach to justice.” The well-known local justice process in the Acholi societies is the Mato Oput (pronounced as Mat Ofut). Mato is a Luo word for ‘drink’ and Oput is for ‘bitterness’. Therefore, Mato Oput compares to drinking the bitterness of wrongdoing and/or resolving a bitter relationship. Here, conflicting parties drink a mixture of the Oput (bitter) tree roots to symbolize the fact that they are swallowing the bitterness against each other and reconciling (termed as ‘Timo kicha’ in Luo). Although it is now diluted and may be “…allocated a more generalized, or rather a different, meaning” (Allen, 2006:134), almost every person from northern Uganda region knows the concept of Mato Oput; and what it entails, at least in general terms.

While the young generation seems not familiar with all the ritualistic process and what exactly happens during Mato Oput, their elders are conversant with them. Nevertheless, all members of the Luo communities understand what Mato Oput generally stands for; a process of seeking and attaining justice process, its weaknesses in the modern society notwithstanding.

One of the respondents expounded on its meaning, and referred to it as a traditional justice system. (While opening and referring to his scripts on which he had written something, and as reported verbatim here), he explained that, “Mato Oput as a concept in the Acholi tradition is about truth telling. It is about justice, (and it) is about peace. And traditionally, Acholi thought placed great emphasis on rehabilitation of the victims than punishing the evil doers. It talks about forgiveness. The issue of forgiveness is paramount. Mato Oput encompasses all these. It is more of a TRC-Truth and Reconciliation Commission because it is truth telling, justice and (peace). The Acholi culture has unwritten law or constitution, unwritten, and is sacred, unwritten codes. And you cannot even amend it, you cannot even repeal it. It is sacred, visa vie the common law, the English common law. It is unwritten and is sacred. You see, Mato Oput is, to me, in the modern contemporary world is restorative justice, because it focuses on restoring the loss suffered by the victims. [At this point, somebody came in and was briefly attended to: MN]. That is all about it. It is restorative, holding the victims, the criminal accountable in his dealing, because when you tell the truth, you are now accountable. Even Kony, he said, he would accept Mato Oput. So, Mato Oput as truth telling, is holding the victims [though actually wanting to mean offenders: MN] accountable and gives the victims community the opportunity to sign in the name [proceeds to read from the scripts but says that it was his opinion: MN], to sign the names on portraits of success or monument. It gives the victims community that their next challenge is defined in a measurable form. Therefore, it treats victims and evil [doer: MN] as equal and holds them accountable. The concept of Mato Oput shows that humanity has the common possession of the entire Acholi community people. [It: MN] is diminished when even one individual is lost in humanity. Are you getting me [he asks as he continues]? You see, the Acholi culture has deep rooted rituals and festivals, just like Abraham religion. They have festivals and rituals. It is there in our culture, which is why we have Mato Oput.” (Direct victim 1)

Listening to this respondent makes one understand, at least in part why there seems to exist a fatalistic opinion among members of the victim community regarding the treatment of Kony and his fighters in retributive justice terms. However, beyond this seeming fatalism, the above narrative reveals that Mato Oput entails many aspects of the process of not only restorative justice but also mediation and reconciliation. For instance, there are issues of its informal nature (unwritten), truth telling, forgiveness as well as putting the victim and offender at the centre of the justice process as main stakeholders (Barton, 2003). However, its ritualistic character brings in issues of psychology. In fact, I met two of those

who had undergone Mato Oput in one of the villages where I stayed; and observed how mentally affected they were. They never even accepted to talk to me. One of them told my assistant that he is not human enough and cannot have anything good to tell me. He was somehow withdrawn from normal life, though not to a level of psychosis (out of touch with reality). This could have come as a result of cognitive dissonances espoused by Festinger (1957). Mato Oput’s use in resolving conflicts cannot be underrated. In fact, its practicality in dealing with the complexity of the conflict under study may be considered outstanding. This is more because victims were turned into perpetrators and again into victims at one time or the other in this conflict. As put by Afako (2002:64), “anyone could be subjected to the conditions that produced the perpetrators of the crimes experienced in the conflict”. It is within such a situation that formal justice processes are finding it hard to differentiate between and/or identify victims and perpetrators. One of the research assistants revealed to me as we travelled to one of the villages in Amuru district that if formal procedures of the courts of law are to be used in their entirety, then they may end up arresting the whole community. It is only if they are physically or bodily marked with scars (like those whose mouths were cut off) that they may be exonerated, but even then, it could be that the scars were a result of fighting for the LRA as rebel fighters but not by them. For a comprehensive view of these opinions, some of the responses are reproduced verbatim here below. “It is better to forgive those people (and) they do this Mato Oput because it is the best way they can handle this issue. She was like the issue of fire to fire cannot work and as human beings also, we cannot be 100% perfect. We need to forgive the other one because, as the other one said, may be that one also had the intention of going to the bush. So, they should first be together and then they see which” (indirect victim 7).

Another one stated that, “as government is doing, I think they can even forgive them, if they swear that they did a mistake. Even somebody, even your son, if you are my son, when you come to me and say that I won’t do that thing anymore, that one we can forgive, but in the heart of a villager, it looks very hard because when I remember how you held a stick and hit my dear ones, I cannot forgive you” (Indirect victim 5).

While a young man went ahead to elaborate that that;

“Now, you see, for me..., I would go with reconciliation, because you know, even though you take someone to court or he is killed, it is not going to change what has already happened. So the best thing you reconcile with that person, you come back. That person; may be, on the other hand, may even help you. It might be productive to you. So when you take him to court, he is tried, for me as far as I know, I don’t think they (courts) even kill someone. Even if they kill, I don’t think it will change anything. It will not change! So if fellow Africans would feel in a way such that when something happened, we reconcile and remain friends. It happened due to something…What I can say as far as reconciliation is concerned; I just feel they first of all bring this tradition of ours into work; that is Mato Oput. By this, you find families will be reconciled. It should also be done among clans because as far as I know, this war has separated many clans. You find that those people coming back saying, it was so and so who sent us to come and kill people of this clan. So, when you are coming back, there is already that separation. So, it means there should be reconciliation even among the clans, people should reconcile. This thing did not affect only one clan, and Kony did not capture only one clan. There were many clans involved into this, so all of them should be involved for peace to prevail. You see. Even though they end this issue of fighting, they put their final peace agreement, but still, to me I look at it that there will be no peace. Because, what of those people who killed each other. May be you are the one who sent people to capture me? When I am back, I just look at you as my enemy because it was you who caused (it)! So there will be no peace still. This is what people should preach; for reconciliation among clans. That is what will be good at the end” (Indirect victim 4).

An elderly man also imbued in, saying that, “What I see is to come to this local procedure. But the bad thing; all these people are not coming to an understanding; when these people, when rebels want to understand, then the government rebels. Then when the government is coming to understanding, the rebels also rebel. So this makes things very difficult. I pray that God may let you understand me because I am not very good in my explanations. So, that is really what I see” (Indirect Victim 5).

One of the leaders of the Boma (community) in southern Sudan also agreed with the above in some way but hastened to add and/or to express fears of how people normally treat each other in his area. He explained that, “Yah we have traditional justice. And, you know in a very big community like this and a traumatized community, they don’t look at that as the immediate way of solving a problem…they look at that as a waste of time. They would rather get you (the offender) and do what they want. Either kill you either punish you properly. So now, we are asking the government to reinforce very quickly and put something in place to stop such. But since … we came… in my regime, I have not seen any revenge of such but we keep talking to the community, sensitizing them, when they see such, so they forgive. When they forgive and they bring in such a case and we see what we

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can do; if we can launch a peace and reconciliation program; And when we came, as a community of Acholi, Anyagwara, we have started a peace and reconciliation program, where even before we flew to exile, there are such similar incidents that occurred in between ourselves. As the SPLA, we also killed ourselves in between us. So now we wanted to also do reconciliation and we have started that. And for us as Owiny Kibul Boma, last month… we called a meeting, the elders and clans meeting where we came up with the rules and regulations and the bi-laws on the compensation. So when we are going to organize for the peace and reconciliation, we should have a compensation price to be given to such a family, then we do the peace and reconciliation. Before you do the peace and reconciliation, you have to pay something for the compensation so that that person will come, feel good. And also we wanted to do the same to the LRA’s, which they have done into the community. For us, we look in that way, it is a better way to solve such. And though the government will also come up with the laws and other things, but others which we cannot do it locally, then the law will take its cost. So that is how I feel as a leader. The compensation, we will not pay as an individual. He will pay as a clan and when such a thing, it will be as an individual to correspond in talks and invite the member of the clans, then they contribute, then they pay that and when they pay that, when during the peace and reconciliation, they will invite the clans to come and witness such that in future, such a thing should not revenge itself. So now, the community, they will be a witness. If in case, if your family offended my family and today we are coming for peace and reconciliation, and we have paid something. So, other members of the clan, other clans, they should witness and they see as I have paid you. So that in future, you shouldn’t turn again and say that I was not paid anything. So now, the members of the clan will be a witness in future. You never know, maybe he will die and I will die and my generation and your (his) generation will say no, such a thing was (did) not happen. It was just a deceive (lie). There was nothing paid. So this is what we are doing. And today we were supposed to go for the same meeting for the continuity of the meeting. Not until we finish but now I am sick, then we are going to organize it next time” (Indirect victim 8).

A female activist explained at a launch of a report by the Justice and Reconciliation Project (JRP) that “… when we talk about the traditional mechanism of reconciliation, there are processes which you have to go through. The first on it is that the perpetrator must acknowledge, must accept, (and) must come out to say ‘I did it’. And then the other side, through their goodwill, they say, if that is what you did, then, we are accepting your apology because that apology becomes first, before anything happens. And then that acknowledgement, then the truth telling because you hear both sides, you would have heard from both sides what had happened. And that is really making people come to terms to what happened to them, reflecting deeply about it. And then they can make conscious decisions about what to do next because in that circumstance, you

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cannot continue choosing to continue moaning your dead and refusing to forgive somebody because even if you do it, it will not bring the person back. So, that processing of the memory is very important and the truth telling does that in our culture. And then comes the compensation. The perpetrators and the families and the clan behind them have to agree to compensate for the lost lives. And that is in kind, it could be in form of animals, it could be in terms of money. It is determined by the chiefs, by the elders and it must be agreed on. And then once that compensation is paid, that is when they come out with what we normally now call Mato Oput. Mato Oput is a ritual, it is just a ritual. It is a long ritual that can take a whole day. It is a long ritual and part of the ritual is to organize the funeral right of the dead person. So that means coming to terms, not only pleasing the living but also pleasing the person that has died. And at the end of the day it becomes a meaningful thing and it is only that that can enable reconciliation to take place. And what I saw in Mato Oput, in terms of what do they keep to remember what had happened. I saw in the case I documented. They would keep the jaws of the sheep that has been slaughtered and eaten. So they would give to either side, and I asked, why do they keep that, and they said, this is to remember what we did today. So, the two sides would go and keep, take care of the jaw of those sheep. And then when somebody begins later to look for trouble with the other side, the clan or the families whom people have now reconciled with, the elders will draw out the jaw and say, “my sons, on such and such a day, we have reconciled with this clan or with this family or whatever, and this is the testimony for our reconciliation. And if you want to go and hurt this group again, you are going to be left alone in it. We are not going to be part of it” The person will now desist from doing that because, in terms of the compensation, it is not only one person that gives that compensation. It is the people, the clan or whatever that makes that contribution. So they say if you go ahead and do it, you will be left alone and that acts as a deterrent, and such a thing will not happen. And symbolically, if it is between clans, you end up with the bending of the spears or whatever. So that becomes a meaningful reconciliation where people consciously choose that this is the way to go. I know I cannot forget what happened to me but this is the way to go. We need now to move on and to cooperate in everything”(Local leader 1).

These narratives emphasize the fact that people in the victim communities have a clear understanding of their local traditional justice mechanisms. They show how deterrent, reconciliatory, and spiritually engaging the processes look to be. It was also noted that some of the respondents made explanations of the process of peacemaking rather than that of justice; showing how timing is important (Braithwaite and Nickson, 2012). They also tended to narrow justice to a single

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concept of compensation or reparations. This was more so for those direct victims who viewed the ICC as a better option when it came to reparations. The above notwithstanding, Mato Oput and its processes featured prominently as a form of justice that most of the respondents apparently favored rather than formal courts of law. Moreover, most of the above narratives stress and highlight several contents of Mato Oput which rhyme with the processes and conditions of restorative justice posited by Misener (2001). It is vividly clear that there are elements of acceptance of what happened, truth telling, forgiveness, compensation and reconciliation. Notice also that the aspect of punishment is not necessarily stated expressly in Mato Oput. Rather, compensation is prominent. However, the conflict in northern Uganda is so complex that neither Mato Oput alone nor formal justice processes alone can be applied. The victim community members do realize this as well. One of them elaborated that “I think ICC cannot handle this case. I think Mato Oput also, we have tried in our all levels but nothing came out up to this time. Because; if Mato Oput would help us, up to this time, Kony would not be in the bush! Because we have some people here like bishop Ochola to talk to Kony, the result is negative. So we are also not trusting in that one. Kony and his fighters, if they really accept to come out, I think the good thing is to handle his case with this justice from this, local justice in Uganda. Because, we the people, we the community which Kony did us bad, we are also here. But if the ICC, we cannot go to the ICC. But if it is here, we know what Kony did. If they come to ask as, we will tell the real story to the justice or to some who handled this case. And if he also said that okay, me I did bad (wronged) really, forgive me, we know how to forgive him also. Because we are the ones who he did bad [whom he wronged: MN]! If he came out! … Because the government also, what they did bad is there. But they; like the government they would come out and say okay, I am sorry to do this thing. You the community forgive me. For this case, I will do this for you. Okay I will refund you cattle, I will do this. I will do that. That is not there...” (Indirect victim 1)

Of much interest in the above narrative is the fact that this respondent points out that they are the ones who were wronged. This brings in the question of whose justice is being sought in this area (MacIntyre, 1988). As was argued by Branch (2004), law must be guided by those it is claiming to serve, and by their vision of what is just or prudent. It follows that if justice is meant for those who were wronged, then it must be that which they consider as so. Imagine what the word

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‘sorry’ would do to such a person as (indirect victim 1) above. However, such a word can only be offered if offenders accept responsibility (Braithwaite, 2006).

A humanitarian worker there also believes that Mato Oput should work side by side with formal forms of justice. He indicated that for the rebel leaders, “… theirs, for them, it would be the Criminal Court and Kony himself…because those are misleaders, but the misled would go for the Mat Oput. And that is why the Acholis are welcoming them back. They welcome them back, they go through the rituals. Because, you know when you… reconciliation at national level is ok but it solves issues at national level. This national level reconciliation, if it is not brought down at the grass root through the Mat Oput, it still leaves these people unreconciled. The Acholis believe they have accepted you and reconciled with you when you sit with them, you go through the rituals, processes. You drink together, you eat and dance together. That is when they believe reconciliation has taken place. When they have demonstrated the war and the killing, you know... kind of actions. And then after that, go and greet each other and reconcile. After that they go and drink, they eat, they dance. Then people go away. That is reconciliation. And that can best be done at the local level. Yah! When you don’t go up to that level, then it becomes difficult to kill the latent heat, I mean the latent conflict that right now as we speak is big in the Acholi land. The latent conflict is there. I sit with you, openly I say yes I have accepted you but even inside you, you are saying eh but I have done wrong to this person. And inside, he is also saying, but you have killed my brother, you have killed my mother. That can only be removed if the local reconciliation has taken place” (Humanitarian worker 1).

An elder who has since migrated from the area but visits it occasionally indicated that, “…the only best way is reconciliation and forgiveness for each other. If they all came out and accepted what they did, then this would be very easy because our traditions are very clear on such issues. The main problem is that the two sides all deny to have done anything wrong. Government and even Kony still say they never killed any civilians” (Indirect victim 6).

Another respondent of a Boma (large community) in South Sudan stated that, “ICC should do nothing to Kony but they should help us in getting him so that we, elders do what is best for him and bring him back home for a new life” (Indirect victim 8).

One would sincerely ask how the ICC should do nothing with Kony considering what he and his fighters have done to the people. But considering the fact that

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even other actors seem to have not been exonerated, such as the government soldiers, such a question may easily be foregone. In the transition from war to peace, some aspects of justice are seemingly swept under the carpet in such fatalistic ways (Shaw, et al, 2010) A renowned retired bishop of northern Uganda (Baker Ochola) has been quoted severally to be praising Mato Oput as one of the best justice systems in the world. It makes people remember their past for peace and unity. In a JRP workshop mentioned earlier on, he stressed that, “…it is absolutely necessary for the people of Uganda to have a common memory of our recent past history …If we don’t do that, we will never become one people, one country, one parliament. There will always be a reaction depending on who is on the chair. So we are not building a nation, we are not building a people. So it is very important for us to understand … We want our government to have policies for reparations, for restocking... You know, transitional justice system will never work where people are not together. It will never work because it must all be geared to reconciliation as the ultimate goal. Otherwise, you will be wasting your time; you will be wasting your money, doing a lot of research for nothing.” (Local leader 2)

Although there are those who feel that Kony cannot be forgiven3, it is generally observed that the victim community members have a high regard for local forms of justice that give forgiveness a lot of space. This is again in line with Branch (2004), in the literature review section of part I. He advises that when the enforcement of international law is opposed by the helpless victims because the proposed intervention only makes things worse for them, insistence upon prosecution amounts, at best, to paternalism and, at worst, to a new imperialism. He also implored that international law must be guided by those it is claiming to serve, and by their vision of what is just or prudent; and that if local injustice is the price to be paid for the kind of international justice that results from ICC

3 For instance, one of them said that “…it is really very hard to forgive him because he spoilt my future. I gave birth to many children in the bush but left them there” (Direct Victim 5)

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prosecution, then we must abandon the Court and imagine new modes of building a truly global rule of law.

It should be noted here however that using Mato Oput as a traditional form of justice may have been well known for solving inter clan conflicts and even tribal conflicts. In the case where the state is involved, it has become more complex than just the usual. This is partly why one of the above respondents had to liken Mato Oput’s process to that which is involved in the Truth and Reconciliation Commissions. In this case, there needs to be a willingness to engage in some of these rituals, after all they are symbols of reconciliation for peace and order’s sake. Gomo tong for example is a ritual that involves the bending of spears to mean the end of a hostile relationship between two conflicting parties. This need (to engage in such ritualistic mechanisms) was also highlighted by Afako (2002), especially in consideration of the high costs that the Ugandan communities have been bearing for long.

Nevertheless, there exist weaknesses that antagonize mechanisms such as Mato Oput. The International Crisis Group (2010:24) rightly observed that “… such ceremonies are not well-suited for dealing with the sort of crimes committed by the LRA…it is difficult to calculate the appropriate compensation... The inability of traditional justice mechanisms to guarantee systematic reconciliation at the community, tribal and national levels means that the government must do more.” However, just as the government is reluctant to participate in the local forms due to suspicion that they will exonerate many; the victim community members are also suspicious that the national formal courts will not be impartial enough. This brings in the question of how these victim community members view the work of government’s national judicial systems, especially through courts of law.

6.3 National formal courts The reasons for choosing local and traditions forms of justice emanate from the fact that most people in Uganda do not trust the national judicial systems or courts

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of law. This is mainly not because they are not considered legitimate but because they are either perceived (or practically seen) to be corrupt. There are so many reports of corruption and partiality by magistrates in the country that there cannot be much of fair trials. At the time of writing this thesis, cases of corruption never miss in the local media in a period of more than a month. Even those in the judicial system agree that corruption is a popular vice therein. For instance, Warom Felix Okello reported a high court judge in the Uganda’s daily monitor newspaper (of Tuesday, 21 October 2008) to have echoed the fact that there is widespread corruption and political interference in the Uganda’s judicial processes. The lower courts are the most affected; with many magistrates receiving bribes from litigants. This is denying the (especially majority poor people) their right to a fair and impartial trial. There is even a common saying that ‘a poor person never wins a case even when not guilty.’ Further, the police, an institution that is supposed to handle the investigations is ever ranked number one (as the most corrupt institution) in the country.

A young man gave his opinion by expounding on the issue of justice by local courts of law that, “… the courts of nowadays are… I think there is less justice in court, more so the court in Uganda. (Asked why in Uganda)…I just think that way because now days if you are a poor person like me, you will never win a case in court even though you are right. You will not. It is now only for the rich. The rich will always win. So there is no justice in court. So why should I take you. I witnessed a place; one of my uncles got an accident. He was knocked down. So when the policemen came, they questioned him (and said) we have just to take this man to police. The man said, my friends, you just leave him. Let him just take me to hospital, after that we shall talk, other than you taking him there. I know I am not going to get anything. It is for you. You see, that is what happened, there is no justice in court. We used to believe that court brings justice but we have lost all that hope and trust in God now days. The judicial system is no longer as it used to be. It is always for the rich. The rich will always win (in) the court, however hard the court may be, because they have something to blindfold those guys. But you, a poor man here, you always carry a bag of charcoal to sell. Then you think that when you are taken to court, you will win?”(Indirect victim 4)

A lady whose only hope is that peace continues to prevail said that she had “…no capacities to take the government to the court. Only that we do not want war… we want dialogue” (Direct victim 2).

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By having capacity, this respondent was expressing the helplessness within which many of the victims lead their lives. It was also in reference to the lack of money that is often needed to bribe one’s way through the judicial processes there. For her, the idea of pursuing justice is farfetched. As far as she was concerned, it is only those who have the capacity who can be able to seek justice in the national courts of law. However, she knows very well that with peace, their lives will change. This is so because they are hard working communities whose bonds (Crawford and Clear, 2001) were broken by war and should not be further severed by punitive justice.

Similarly another direct victim, who is now a chairperson of one of the victim associations in the region showed no optimism by affirming that he was very doubtful about being considered by government in regard to compensations. He challenged those hoping for redress from government by asking intriguing questions at a workshop organized by the Justice and Reconciliation Project as; “For example, what is Uganda government’s history on compensating war victims? What is the history of Uganda government under the NRM on compensating war victims? One, we have the ADF victims, who are still suffering and are not compensated. Two, we have those who suffered in Buganda, and we are here in Gulu and in west Nile. Are we going to be compensated? And is the government accepting responsibility? This is one question. Do we have a history of Uganda, under Museveni, compensating war victims? So that question must be answered. Question number two, if you talk of compensating war victims, what are the international rates of compensating war victims? Because if you are 70; like the Mukura people and from nowhere, government brings 200 Million [Uganda Shillings: MN]. I don’t know whether it matches to the international. And also, these were murdered, they were not just killed, they were murdered. So we need some international rates, because we have those children who [were] abducted and we never saw them again…”(Local leader 3).

The above narrative raises several pertinent issues too. One of them is to do with the acceptance of responsibility by the government. As far as government is concerned, it is the Lord’s Resistance Army that victimized people and caused the widespread suffering in the region. It is important to note that so long as the offending party does not see itself as being responsible for the offence as was

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posited by Misener (2001), compensation cannot happen. Moreover, compensation does not necessarily need to be done through courts of law. However, government’s reactions to some of the incidents (especially without a clear policy and explanation to majority of those affected) put its intentions into question as above. Another issue that has a historical connotation is the Mukura massacre. This is an incident that has placed the government in a corner for long. This is where it has been alleged, witnessed and even acknowledged (in some way) by government that civilian people were bundled into a train wagon and set on fire by the then NRA soldiers. This was during their northward chase of the fleeing army of the then government in the late 1980s. This would then place the International Criminal Court in a better position to be considered as a better option. However, the incident happened outside the time frame under its jurisdiction, before July 2002.

The politicization of the judicial appointments is yet another mishap in the national judicial system. A big number of the appointments of judges since 1997 have been politically motivated. And due to the judges’ political affiliations, the public can even predict the outcomes of any judicial process by just looking at those of the panel. These also appeared in the local media (newspapers). For instance, Mubiru, A. (2006) reported such with a title, ‘Judges’ Appointments Annoy Judicial Officers’ in the New Vision, 17 August 2006. Then Mulondo, E. (2006) reported it with a title, ‘Judicial Appointments Becoming Political Says Magistrates’, The Monitor, 16 August 2006. When all these are appearing and are heard by victims, they cannot easily trust the judicial process and so expect justice in the national courts.

The organization of the Ugandan judicial system is very ideal and would indeed solve many of these complexes if it was not for its lapses. At the lowest levels, there are local council courts. These were introduced by the National Resistance Movement as they took over power from former regimes. They were then regularized or fully established by section 3 of the Local Council Courts Act of 2006. Beyond the lowest level (village) are parishes, sub-county or division courts

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in that order. The appeal process also follows the same order in cases of dissatisfaction in judgments. Beyond the above levels, there are magistrate courts, who actually guide the above lower levels. These are established under Section 2 of the Magistrates Courts Act. These handle civil and criminal cases that are not in the jurisdiction of the lower courts mentioned above. They also handle the appeals that are made by those who are dissatisfied in the lower levels. Beyond the magistrate courts are the high court, the constitutional court, the court of appeal and the Supreme Court in order of their hierarchy. All these courts would indeed guarantee justice if they were not diluted by corruption and political interferences. As it stands now, few victims would foresee justice in the whole process. This implies that another form needs to come into play. Is the ICC any better?

6.4 The international criminal court Earlier surveys and studies including those by Tim Allen (2006) and Pham et al (2007) revealed that a good fraction of the affected communities wished that the International Criminal Court should not deal with this conflict. However, such wishes were due to a dire need for peace, lack of proper understanding of the work of the International Criminal Court as well as what they would hear from the rebels’ side with regard to peace talks. As ‘physical peace’ somehow returned to the region, some respondents agree that Kony and his other top leaders should be prosecuted by the International Criminal Court. Nevertheless, there are those who are either still skeptical or entirely confused. One of them expressed these by stating as hereunder; “…for us, really we are now confused, because we are hearing about ICC. But ICC, I don’t know whether ICC will go in the bush and get where Kony is. Yah, some came here last year and we told them everything. Even if we accept that ICC is going to deal with Kony, but ahh…I don’t think, I don’t think. Because ICC also, they don’t have force. That is one point. They have no force, they don’t have army… in our area here government [solders] didn’t kill us. Those who killed us were LRA and Karamojong. I think ICC cannot handle this [our] case” (Indirect victim 1).

The above narrative shows how lacking a policing arm by the ICC has become a big setback to its operations. This is in line with the idea that it would have been

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better not to make indictments at that time; after all“…the ICC would by no means be in a better position to arrest these leaders…?” (El Zeidy, 2008:216). It may also crucial to observe here that the reliance of the court on governments’ cooperation is self-defeating in some of these cases. This is more so when the government officials (such as the presidents or other top officials) are implicated in similar crimes. It compares to a situation where a butcher man leaves his meat in the custody of a hungry dog and expects to find it safe and intact. This calls for considerations of the politicization processes of the court (Peskin, 2009).

On the other hand, there are respondents who had negative attitudes towards the court because of the view that the court was not impartial in the investigations that led to the indictment of the top leaders of the LRA. For instance, a youthful respondent retorted and said,

“first of all, the ICC itself was not fair enough, because in a war, there are two parties involved. So you can’t come out investigating only one party. You see, why? There is no way. So, the ICC itself is not fair so I don’t support and to me, I just look at ICC as being useless, because first of all they did not investigate the two parties, they only came within town, they were saying they came for consultations. They consulted people within towns there, yet the villagers are the ones being affected in this. So how comes he is saying we have collected the views that it was only the LRA soldiers who were disturbing people there seriously. So that was the bad part of it. They didn’t look around. They didn’t follow all the two parties. And besides, their consultations were not enough. They would have consulted first deeply before coming out with those names. And when the names came out, I heard that they even said it was due to that name that made those people say that they now want to sign the peace agreement. How can I sign when I know you are going to arrest me?”(Indirect victim 4)

In this narrative, the respondent questions the kind of investigations that were carried out. There is no any positive regard for the fact that the rebel leaders were indicted. The bitterness is only directed to the fact that nobody from the other party (government) was implicated. Although the investigation team could not get convincing evidence to this effect, this kind of bitterness seemed to cut across the region. The members continue to perceive a kind of conniving between government and the court. But such perceptions fail to acknowledge the

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importance of states and the role they play in aiding the court to do its work (Roche, 2006). To this same issue of the perceived compromise and impartiality of the court, a direct victim in Pabo could not hold his anger. He narrated as hereunder; “For me, I think the ICC has already failed because they allowed to be told on what to do during their visit here to investigate. They even came here with the soldiers; most of them are now at higher ranks [because of what they did: MN]. I could not speak to them anything like this. I just told them that I fled to Masindi and did not see anything for myself. [Asked why he could not show them the book, he laughed and asked me], supposing you were the one, would you show it to them? That would mean death for me, especially as ICC is not always here to protect me… These people of ICC were even travelling with security personnel. They could go and spend a night in the barracks, or Acholi Inn, and are provided with escorts. (Laughs off)…compromised… this Acampo and his men completely failed, failed to prosecute… I met [them] but I would say no more. Because I knew most of those they were travelling with…these were some operatives of the UPDF. I could not say much now to you, go home, you are useless now, but I was feeding local human rights NGOs… They [ICC personnel] were no longer my friends, I could not tell them anything. They were already compromised, to me, aha. Because what you tell them, they don’t follow. They just come and say, they were more of convinced that UPDF. They were convinced completely that the UPDF committed nothing in this war. I couldn’t change anything. So, this is, up to date, none has been indicted. I have names of commanders. The battalions, documented fully” (Direct victim 1).

Another respondent also explained as here below: “You see when you talk of the international criminal court, what I see is; is all these people are to be blamed, even the government troops killed people, civilians here in northern Uganda, even the rebels killed. So if we are to take that procedure, then even the government is to be sued in the court” (Indirect victim 3).

But an elderly man made a distinction between perpetrators by explaining that, “…others can escape but the commanders, big, big. Those ones have to be affected in this case, because those children have just been commanded to do what they did. When you are told to do this, you can even kill. You see, so we don’t even support those big commanders because they are the people who misled our children” (Indirect victim 5). Another one also expressed fears that the court will cause more fighting, saying; “the better way is to negotiate and that is the better way of solving this problem, because what I know, this International Criminal Court will cause a lot again. And maybe that is why even up to now Kony has not come out. Because if I tell you that I will jail you for the rest of your life, will you come

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near me? What you will do, you will only run away and then continue in the way you are doing before” (Indirect victim 3).

And finally, as was already reported, one concluded that the ICC should do nothing to Konyi but they should just help them in getting him so that they, elders do what is best for him and bring him back home for a new life, so that they again wait if Uganda president Y. K. Museveni is bad as people say. These narratives all point to the fact that the court, especially through the referral process and eventual investigations, is perceived to have been compromised and hence partial. Consistent with these narratives, James Eriku reported in the New Vision (a local newspaper) of Wednesday 2 July 2010, that the International Criminal Court was told by victims to investigate the UPDF for war crimes that were committed during the two-decade-old war in northern Uganda. He quoted one victim, Mr. Alex Okoya, to have said that the UPDF forcefully arrested those they suspected to be LRA collaborators and killed them. And that the time the ICC first went there was when people were still in camps but now time is ripe for witnesses and victims to openly testify even against the UPDF. To this end, Mr. Sang is reported to have said investigations on the army could be stepped up. But was not this just a psychological soothing? He knows very well that this is a precarious case. While many killings took place by the UPDF as may have been reported, majority took place before July 2002, over which the court has no jurisdiction.

6.5 Crosscutting issues Latent conflicts: ‘Lwenyi (A Luo word for war) is not fought for nothing! There are always reasons for it. Even the Banyankole (a tribe of the current president) had their reasons for the war in the 1980s. So those in the bush have their reasons. The only problem is that they do not to know their enemies’. This was a statement from a young man with whom I shared a sit as I travelled in a bus from Gulu to Kitgum. As I stayed in homes of many of my respondents, many conversations (that were not necessarily audibly recorded) indicated that there is bitterness among many of the community members in this region against the current government and its leadership. For instance, as we walked to the sorghum garden in one of the villages in Amuru district, we saw long horned cows (mainly from

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Ankole, a region of the president’s tribe). A host family member turned to me and my research assistant; and remarked that, “you see those cows (pointing at the cows); that is what these people wanted. Now, they have the freedom and enough land to graze them here! But I wish they knew what we think when we see them. I do not think wars will ever stop completely in Uganda” In fact, the way he expressed himself was touchingly strong. This implies that if any rebellion with a clear political or non-brutal agenda and approach came up, he would easily join it. When challenged to consider the effects of such wars, he said “it is better for one to die than watch his enemies enjoying his wealth as he suffers”. This is dangerous because, many other youths who are unemployed or not occupied in any government set up, perceive government as being led by their enemies. This is also consistent with how Cunningham (1998) constructed and used the enemy systems theory to show how people identify their enemies at both macro and micro levels.

Conflicts are also looming as a result of compensations and rehabilitation packages during and through the amnesties that were offered by government. The amnesties in Uganda were given as a motivation to rebels to denounce rebellion. They arose as a result of many people in northern Uganda persistently arguing that subjecting the LRA fighters to a formal prosecution was not a good alternative (Dolan, 2000; Dolan and Bagenda, 2004). Therefore, the government introduced the Amnesty Act in 2000 as a response to the wishes of the people of northern Uganda. At that time, these people desperately needed peace rather than justice. In fact, the Acholi Religious Leaders’ Peace Initiative (ARLPI) wrote a memorandum to the government in which they castigated any threats of prosecuting the LRA members. This, they argued, posed an obstacle to the resolution of the conflict and eventual peace.

In the Uganda’s Amnesty Act 2000, Kic, a Luo word for forgiveness, or pardon or exemption from criminal prosecution was one of the offers to whoever denounced rebellion. In addition, they were to be rehabilitated and resettled. The Amnesty Act legally conferred upon its beneficiaries an irrevocable legal immunity from

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prosecution or punishment. In this Act, amnesty was extended to cover all offences including the heinous atrocities that were committed. At the height of the conflict in northern Uganda, over 12000 LRA fighters formally applied for amnesty, as many returned in response to the amnesty calls. Returning fighters were debriefed by authorities both at national and at local government levels. And agencies developed returnee reception and reintegration programs (Allen and Schomerus, 2005). The amnesty commission which was set up by the Act gave certificates to returnees; and many of them were happily welcomed home by the victim community members. Even those that are captured by the government soldiers (without surrendering) were supported in their bid to be granted amnesty. Kwoyelo, one of the rebel commanders also applied for the same amnesty after he was captured. Other examples are the high-ranking commanders; Brigadier Kenneth Banya, Brigadier Sam Kolo Otto, and Lt Col. Opio Makasi, who served as the LRA director of operations. Many other LRA members who applied for amnesty were not prosecuted and instead joined the Ugandan army to fight the LRA. In the areas where Kwoyelo allegedly committed the crimes, many people welcomed the news that he would be granted amnesty and set free. They said they were excited about the court ruling and that Kwoyelo, like most people in northern Uganda is a victim of the LRA insurgency. Kwoyelo was also abducted and conscripted into rebel ranks and he operated according to orders.

However, what is more disturbing to most victims and communities is the fact that many of these perpetrators of atrocities enjoy better livelihoods than those they victimized. It appears to them that if any person wishes to have a better livelihood, such a person can join the rebellion and later apply for amnesty. The Akaka case resounds in a victim’s memory as recollected here thus, “It is really disturbing to see a person who cut off your hands being given money and a nice house as you struggle with the disability he caused to you to survive. He killed your child, looted your properties and now he is given properties again! Yes, they can be forgiven but be left to live with us in the same way and struggle as we are struggling, and not be given all those monies and compensated for killing people! I don’t understand this at all”(off record victim in Kitgum).

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To such a person, perpetrators are instead awarded than being punished or at least be brought to the victims to say sorry to them too. It is as if, they are saying sorry to the state, not to victims. Others wonder whether the state is satisfying its own interests at the expense of the people, the victims. This leads to a scenario where government’s innocence in atrocities is also questioned.

A representative from a victims foundation in northern Uganda debated in a public presentation of one of the reconciliation projects that he does not recognize the ranks most of the soldiers obtained by killing innocent persons in his area. He said, “…at one point, I told somebody that all the army officers who have been promoted in the north to whatever rank; I don’t respect their rank, why? Because they attain this rank by killing our own brothers and sisters and maybe I also escaped from that bullet. So all those ranks, I still take them and respect them with a lot of reservations. If you are here with that kind of rank, excuse me please, that is what I hold as the opinion on the kind of war which took place in northern Uganda, whether you are a reserve force commander” (Participant in a Justice and Reconciliation Project workshop).

The other source of latent conflicts relates to the land and its tenure. Ms Hellen Atto, a sister to Acellam, one of the rebel commanders captured by the UPDF was quoted by the monitor newspaper to have lamented that many people now want to grab their land and they don’t have anywhere to go and dig. She thinks that if he was around, at least he would talk about it and threaten the land grabbers. Note here that there has been a decline of traditional clan leaders’ authority due to the disorganization of the social fabric by the conflict and the widespread community injustice (Bazemore and Schiff, 2001). These elders in respective clans would regulate land use and any related disputes that would arise therein. The decline in this authority has rendered such elders toothless and the people helpless. Moreover, much of the land was communally owned by clans and demarcations or boundaries made of trees, not stones. While there may be fewer conflicts between clans, there are several within clan members themselves. Some families were wiped out in the conflict; others have only young children left. Therefore, the sharing of the land to be used by each family in the clan now presents problems. Thus, boundary disputes between families and some clans are what can be called a

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time bomb. Those who came back early from internally displaced people’s camps changed boundary markings to expand on their possessions.

The elderly persons who originally had authority to settle such were issues are either too old to remember or had died in the camps. Then, there are those who were born in camps and do not know anything about their land. They are only told that their families had such and such (size) of land. Given the fact that they are the energetic lot of the society, they present greater potential for conflict. This exacerbated by the fact that other parts of Uganda and running out of land due to high population growth. Remember also that some members in the region have a feeling that the current government (NRM) has a hidden motive regarding their land. To make matters worse, some military and other government officials have allegedly acquired large junks of land throughout the course of the conflict. Due to widespread poverty and the need to survive, some clan members have circumvented the normal traditional procedures to sell land to investors or even government officials. One of the respondents agreed and recognized this as a real problem now. His narrative was thus, “Yah…you know, you see, post war situation has inbuilt elements of conflicts. You know, when we came here, many elders died. The few, who survived the war, lost their prewar authority. And this is what has now brought terrible problems because the youths who grow up in the camp here don’t know much about the Acholi culture and the rest, the values, there is no respect for this. So those are inbuilt elements of post conflict situation and eventually they will fade away, eventually, gradually! Just like we even have land wrangles. They are denying me my access to our land, ach, simply because my, all our families are dead and even may be many people think, I was presumed dead…This guy is dead. People were yelling, people cried. So I have a problem of land wrangles also” (Direct victim 1). Another respondent confirmed this land problem further by saying that it was “… seriously depressing the community. For example, here, where you are seeing, my brother does not want me to construct even a single house here. Even behind that tree, there is a man who sold the land who had chaos about it. We get local leaders who in turn mobilize the surrounding community to help solve the matter amicably without biasness” (Direct victim 4).

But this is still difficult since such elders are easily confused with bribes and are therefore part of the problem due to their survival needs. Richer people especially

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from the outside of such communities are buying their way into the land from all angles. A returnee remarked that, “… as (you) can see, there is somebody who planted Lucaro tree just on my land and I have no potential to object the planting because he is a rich man and I have nobody to stand for me to support me” (Direct Victim 3).

Politics: In spite of the persistent denial by practitioners, the politics of law making and even that of war, significantly affect and/or interfering with the overall process of administering justice. In reality, there is no way one can completely detach politics from law. After all, laws are instigated and/or are made by policy makers, the politicians. Of course, this is needed for orders’ sake. Roche (2006:6) rightly observed that“…to say that the court should never become politicized is to ignore its role in enforcing international peace and security.” This implies that for order and peace to prevail, politics should help to put laws in place to guide state relationships. The problem is that politicians are actually perpetrators of many of the crimes and can use the same laws to evade justice.

Politics in terms of campaigns and elections is yet another issue that blinds many from realities of victims in societies transiting from conflicts and wars. During the election campaigns in Uganda, Lino Owor of Justice and Reconciliation Project in Gulu wrote in the media (newspaper) , indicating the sadness of the fact most election manifestos that were unveiled thus far offered a ‘one size fits all’ solution for all regions in Uganda regardless of the current context on the ground. He went ahead point out that northern Uganda, for example, was just emerging from conflict after over 22 years of civil war, which started in 1986, and has had disastrous impacts on the population. Between 28,000 and 38,000 children are believed to have been abducted by the Lord’s Resistance Army (LRA) to serve as child soldiers, sex slaves and porters. It is estimated that over 1.8 million people were displaced and forced to live in squalid conditions of the IDP camps by government. In fact, during the campaign period (such as for the 2011 national elections), there were fears and threats of war again. Some people seemingly voted against their candidates because of the fear that if the current government is

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won, there would be more war. These fears were even depicted in newspapers then (see extract in appendices).

Further, political or even military support for rebel factions to cause and or fuel conflicts in other countries are not uncommon; and this is the case for the conflict in northern Uganda. A respondent in southern Sudan had this to say: “And concerning the government of Sudan not even the government of southern Sudan; because even the government of southern Sudan was like also a guerrilla here, so now, the government of Sudan under the leadership of his excellence Omar Bashir uses Kony to fight the SPLM and even the northern Uganda people. And it seems as they have a link with the Uganda government. As if they have a link with the Uganda government. And for us here, we are not happy with Omar Bashir. Even up to now, after when we have signed the peace and we have divided, now we have our own country independently, Omar Bashir is still planning to use the same Kony to fight us. You know, there are others who might have killed intentionally. And there are others who we have witnessed them and we know that our dear ones, our brothers, our sisters, our mothers and fathers were killed by one of the members of a certain family and we know even the family. And when such a members comes back home, we don’t look at that family in a good face. So it brings a conflict in between. Where there is such a conflict, it brings family conflict, a clan conflicts. So we need a government to work upon such and even the international community. What can we do to such a situation? Can we take law? Can we take hands to revenge and yet he did not intend to do that? He was forced to do it” (Indirect victim 2).

Perpetrators behind perpetrators: The fact that a rebel army and movement such as of Kony could not survive this far without some kind of support, either internal or external may not be disagreeable. The question as to why such support is offered cannot be answered easily here. Neither can the question of why those supporting them seem, and especially supplying them with guns and ammunition. Even without guns, the rebel fighters still killed people by use of even knives, clubs and axes.

NGOs, Funding and corruption: According to the East African Bribery Index 2012, a survey by Transparency International, Ugandans strongly believe that bribery levels will increase in the coming years. Findings show that the police (85) and judiciary (44) are ranked the two top most bribery-prone institutions in Uganda followed by Tax services (32.5) land services (26.9) registry and licensing

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services (23.2), city and local councils (21.8), medical services (20.7) and educational institutions (16.5). The ugliest part of corruption in many of the developing countries is that their leaderships all seem to connive to participate and/or perpetuate it jointly. When a group of people (call it a party) finally find themselves in political power, it is like, it is their turn to eat (Wrong, 2009). Recently, stories of corruption in the Office of the Prime Minister are everywhere in the Ugandan media The Daily Monitor, has particularly reported how officials have embezzled donated funds for the northern rehabilitation programs. It is not surprising to find such statements as, “billions of shillings meant to help Ugandans affected by two decades of war rebuild their lives ended up building mansions for corrupt OPM officials in Kampala and buying luxury vehicles.

Such was the sense of impunity of those involved in the scam that a cashier whose monthly salary is less than Shs1.5 million ($580) regularly "lent" the government hundreds of millions of shillings, which were paid back to his personal bank account. "Funds advanced to the cashier's personal account were described as a refund of borrowed cash, making it appear as if the cashier lent government money from his personal savings," the audit report noted. A blogger remarked in the feeds that the real problem in Uganda is corruption but not Joseph Kony. Another one remarked that “when people from northern Uganda said Kony was created with a purpose to wipe out the Acholi people on the Ugandan map, the world argued against this. Now what is this? Why is it, that only money meant for this region has been spent this way? Even those who claim to be pastors are feasting on people’s aid money like Kaloris (vultures) at meat packers.

These and many related reports are part of the factors that seem to make the victim community members to continuously doubt the intentions of government as an institution and individuals behind it as leaders and civil servants (including those in the justice sector). It is no wonder that they would wish to have their own traditional justice processes rather than those of the government which appears to be sidelining them in many cases.

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PART III: SUMMARY, RECOMMENDATIONS AND CONCLUSION

CHAPTER SEVEN: SUMMARIZING THE HARMONY BETWEEN FORMS OF JUSTICE The study generally aimed at presenting a case for selective justice in northern Uganda, especially in consideration of victims’ attitudes towards the type and mixture of perpetrators as well as the complexity within which social order is constructed and reconstructed in the region. It specifically aimed at answering the question of which form of justice best applies to who, where and how. This was precisely done by making a detailed description and accounts of specific atrocious actions, kind of perpetrators, especially from direct victims’ viewpoint. In addition, after a survey of related literature, it was pertinent to establish from the empirical data collected whether there is support for selective justice, as well as whether the seeming parallelism between retributive approaches and restorative approaches jeopardizes the administration of justice.

It can be summarized that both field findings and the literature reviewed apparently support the use of both retributive and restorative forms of justice in the aftermath of the northern Uganda conflict. This is not withstanding the procedural difficulties or mishaps and varied victims’ attitudinal connotations that underpin each of these forms. Further, unlike other conflicts where the distinction between victims and perpetrators is clear, the northern Uganda conflict has yielded a paradoxical complication between victims and perpetrators. This means that any form of justice to be used needs to be able to address this complication in some particular ways. This is why it may be plausibly summarized here that no single form of justice can comprehensively address this complication singularly.

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Hence, a number of different forms may need to be applied selectively but yet harmoniously.

Although a practical formalized harmony between the different forms of justice as described in this thesis may be complicated, elusive and difficult to achieve, such harmony was specifically acknowledged in 2007 between the conflicting parties in part. In one of their virtually aborted agreements signed between the government of the republic of Uganda and the Lord’s Resistance Army/Movement, they stated emphatically that, “…in order to find just, peaceful and lasting solutions to the long-running conflict, and to promote reconciliation and restore harmony and tranquility within affected communities and Uganda generally; CONSCIOUS of the serious crimes, human rights violations and adverse socio-economic and political impacts of the conflict, and the need to honor the suffering of victims by promoting lasting peace with justice; COMMITTED to preventing impunity and promoting redress in accordance with the constitution and international obligations and recalling, in this connection, the requirements of the Rome Statute of the International Criminal Courts (ICC) and in particular the principle of complementarity; DRIVEN by the need to adopting appropriate justice mechanisms, including customary processes of accountability, that would resolve the conflict while promoting reconciliation and convinced that this Agreement is a sound basis for achieving that purpose; …and further recalling the Constitutional duty on the courts of Uganda to promote reconciliation. NOW THEREFORE THE PARTIES AGREE as follows...” (Agreement on Accountability and Reconciliation, 2007:1).

The above quotation is from the paragraphs in the preamble of the said agreement. In these paragraphs, it is clearly seen that the architects of the agreement had the audacity to address several aspects that are notoriously interwoven. These aspects (that are of interest to this thesis) include: a) Finding just and peaceful solutions to the conflict and restoring harmony and tranquility within affected communities and Uganda generally (creating lasting peace);

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b) Atrocious actions (stated as serious crimes therein), punishment of those who perpetrated them and the mechanisms or processes of such punishment (emphasis is on adopting appropriate justice mechanisms); and c) The place and role of the victims in all these processes (honoring the suffering of the victims). Finding just and peaceful solutions to the conflict as well as restoring harmony in Uganda generally would entail a deeper understanding of the conflict’s causes and impact. Aspects such as the historical contexts of Uganda’s armed conflicts, the socioeconomic divides (including purported marginalization and tribal favoritisms) and the political underpinnings thereof are all crucial here. In this case, both parties perceived grey areas in this agreement. The rebels knew quite well that most people in their communities (the Luo) have been marginalized; they disliked the government in some several respects; and are politically sidelined by the Bantu speaking communities, particularly the Banyankole4, the president’s tribe (CSOPNU, December 2004; Green, 201). They would in many respects sympathize and exonerate such rebels; especially if traditional justice mechanisms were employed. On the other hand, the government side knew that when peace returns to the region, it will be their government that will be praised for restoring such peace (which had eluded the region and the country for long). Besides, the rebels and even some of their leaders would have to account for their atrocious actions in national courts established by government after all. Besides, Kony and top leaders were already indicted by the International Criminal Court.

On atrocious actions, each side seemed to have known exactly what each of them did in the region regarding atrocities. This would mean that each side would strive to hide its own actions and to prove that the other is actually responsible. In the course of the implementation of this agreement, the detailed truth would probably be unveiled and those that are exonerated under the current dispensation would also be culpable. Even the role of the International Criminal Court was

4 See also that a respondent alluded to the fact that government soldiers spared a young boy because the mother resembled or looked like them. He said that “these were government soldiers…because the lady was brown; they said these look like they are from our area. You can even see the boy, he looks like Nyankole. By then he was very young (indirect victim 5). 123

highlighted therein, but each side seemed to be comfortable with the facts they have about each other. These grey areas were further stressed in part two of the agreement where it was stated that “the parties shall promote national legal arrangements, consisting of formal and non-formal institutions and measures for ensuring justice and reconciliation with respect to the conflict. The accountability process …shall relate to the period of the conflict. However, this clause shall not prevent the consideration and analysis of the history of any relevant matter before this period or promotion of reconciliation with respect to events that occurred before this period” (Agreement on Accountability and Reconcilition, 2007 section 2.2).

The plight of the victims was also hinted on in this agreement. It is important to note that no justice mechanism can be plausible in the eyes of victims if they are sidelined. Unlike restorative forms of justice that have been praised for putting the victims at the center of justice, retributive forms of justice have been criticized for the peripheral treatment of victims. However, the adversarial approach adopted in the proceedings at the International Criminal Court gives victims a substantial space for victims’ participation. This is either in form of their legal representative or even victims themselves if they can afford to do so. Moreover, just as there are compensations under the traditional informal justice mechanisms, there are reparations under the formal mechanisms. These are very crucial for victims of the northern Uganda conflict.

From this short analogy of a hitherto failed agreement, it is pertinent to assert that there exists a tremendous need and support for the use of both retributive and restorative justice mechanisms in addressing the aftermath of the northern Uganda conflict. This is why both formal (more of retributive) and informal (more of restorative) forms of justice are concurrently being implemented therein. However, there exists an apparent theoretical polarization between these formal and informal forms of justice. This polarization is unnecessarily imbued into retributive and restorative justice.

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7.1 Restorative Justice (mainly through traditional forms) From both empirical5 and theoretical perspectives about conflicts, punishment and justice (Coser, 1956; Christie, 2003; Cotton, 2000; Margot and Mulvale, 2011), it may not be disputable that local and traditional forms of justice that are restorative in nature are useful in the context of the conflict in northern Uganda. While their processes are different from formal and strictly coded national and international legal forms of justice, the role of traditional forms such as Mato Oput cannot be ignored in this conflict’s aftermath. Particular attention need to be drawn to the consideration of the criminal responsibility of the kinds of perpetrators. For instance, on the side of the Lord’s Resistance Army, there are those who were abducted and conscripted into the rebellion. These may not be taken into formalized legal frameworks to be charged for crimes such as enslavement and mass murder. On the hand, they may not just be left to enjoy freedom after causing a lot of suffering to others. Therefore, these can be handled under these traditional forms. Here, truth telling, confessions and repentance (show of change) would be examined and compensation of some kind offered. After all, there will still be some form of punishment through compensations or reparations and shaming (Braithwaite, 1989). These are elements of retribution; just that they fall short of the incarceration or imprisonment component. Nevertheless, there would be a restoration of the severed relationships and reconciliation, the ultimate goal of restorative justice.

However, traditional forms such as Mato Oput may be practically difficult to apply to some of the perpetrators such as those from the government side and rebel leaders. Most soldiers and their commanders are not Luo, and do not subscribe to these ritualistic Mato Oput. Also, the rebel leaders are abductors whose treatment cannot be equated to that of their abductees for fairness’ sake. This was also provided for under the accountability and reconciliation agreement referred to earlier on. It was specifically stated that, “formal criminal and justice measures shall be applied to any individual who is alleged to have committed serious crimes or human rights violations…provided that state actors (meaning

5 See also responses on local traditional forms of justice in chapter six 125

government soldiers and other government personnel) shall be subjected to existing criminal justice processes and not to special justice processes under this agreement” (Agreement on Accountability and Reconciliation, 2007:5; Section 4.1). This then means that restorative justice forms alone cannot suffice for the conflict in northern Uganda; and that retributive justice is a necessity too.

7.2 Retributive justice (through national courts and the ICC) Just as there are elements of retributive justice in restorative justice processes, there are also restorative elements in retributive justice processes. For instance, the International Criminal Court has provisions for victims to participate in court proceedings, especially through their legal representatives. There is a reparations element that can cover for compensations. Moreover, restorative justice (especially through local and traditional mechanisms) has weaknesses. In fact, Braithweite (2002:137-166) provided a detailed account of what may make restorative justice to fail to achieve its goal of mitigating the hurt to victims and restoring severed relationships between them and their offenders. These included among others, the lack of formal procedural protections. Further, in cases where the offenders refuse to admit their responsibilities, victims may get frustrated and may literally resort to revenge. In such cases, the administration of retributive justice is inevitable. Unlike others such as the Democratic Republic of Congo where “…formal justice proceedings have been in form of military tribunals” Savage and Kambala wa Kambala, 2008:339), Uganda as a state has a robust judicial system. This, if fully followed with the required impartiality, can address all perpetrators that may not be precisely and comfortably handled by traditional mechanisms. It is unfortunate that for a myriad of political reasons (Bellelli, 2010) and corruption that has made it appear as if it their turn to eat (Wrong, 2009), the judicial system is seemingly mistrusted. Nevertheless, the need for the use of every available form of justice in the aftermath of the northern Uganda conflict is dire. It is overwhelmingly clear that not everyone is comfortable with every form of justice. And not everyone needs to be comfortable with everything anyway. Therefore the best way to administer justice is to use the various forms that are applicable therein.

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As pointed out by Arsovska, et al (2008:451), “the challenge for all concerned actors is to strike the right balance between these different approaches and to integrate them into a holistic process of dealing with the past which at the same time remains open… to the needs of specific groups…” Striking this said balance is indeed hard because, locals continue to support local traditional mechanisms; either because they understand them well or they practically own the processes. On the other hand, they see little benefit from formal retributive forms. It is within all these dilemmatic situations that a contextual understanding and eventual interplay of both retributive and restorative forms of justice is paramount.

7.3 The hypothetical interplay between retributive and restorative justice So far, it can be agreeable that there is no doubt about the fact that the two forms of justice all possess some of form of punishment. In fact, Barton (2000:55-76) was right to advise that differentiations between restorative and retributive justice should not follow or be based on making a dichotomy between them. Rather, it is and should be “… in terms of paradigms of empowerment and disempowerment of the primary stakeholders … in the criminal justice system’s response to the crime”. It is not worthwhile to continue making representations of retributive justice and restorative justice as parallel and opposing forms of justice. Rather, the search for commonalities and strengths of each form to address the plight of stakeholders should be a worthwhile venture. This implies that the central objects of any justice model, the victims and offenders, should be emphasized. Now, in the case of northern Uganda, there are different categories of perpetrators who need to be fully disaggregated and differentiated in any form of justice that is being applied. There are captors, the captives and those behind the main perpetrators such as the ruling government regimes and/or even foreign personalities and their governments. The difficulty arises when the captives have themselves become so brutal that their actions overshadow the fact that they were captives in the first place. This would partly explain why Dominic Ongwen, who was a child soldier, is among those indicted by the International Criminal Court. However, the sieving process need to be done and this may take the form of what is described hereunder:

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The Captors: these include the rebel leaders such as Kony and his top commanders who joined him willingly and participated in the joint enterprise of committing mass atrocities on civilians, including capturing and forcing others into their forces. These, by all counts may never escape the International Criminal Court. The local community members also agree to this in narratives such as “…others can escape but the commanders, big big. Those ones have to be affected in this case…”(Indirect victim 5). In the same vein, the commanders of the Uganda Peoples’ Defense Forces who allegedly ordered and summarily killed people on a massive scale need to be brought to book by the court. While the issue of convincing evidence may have eluded it, calls have been and still continue to be made for new investigations into these allegations.

Captives (victims turned perpetrators): These are rebel fighters who were captured (some of them as children) and indoctrinated or psychologically conditioned to commit atrocious actions on even their own parents and siblings. The fact that they committed those atrocities makes them perpetrators or offenders for that matter. However, their treatment need not be equated to that of their captors. These would be handled under the national judicial system. However, the fact that Uganda has not abolished the death penalty makes it a more cruel form of punitive justice and worse than that at the International Criminal Court if taken from the proportionality point of view. This then creates a great space for traditional forms of justice already described herein. Nevertheless, given the fact that the state has to appear to be having power to administer justice, the processes can involve the state in some specific ways. For instance, the local council or village level courts may be the ideal courts. These courts can easily mix most of the elements of the local restorative elements, since the members of such courts are locals who know such traditions too. These courts would actually be able to handle all these cases alone. However, the problem with such courts is that their jurisdictions are limited to villages. Atrocities were committed all over the region. If a perpetrator lives in another village, this will need an external force to bring such a perpetrator to answer in the village where the crime was committed. This is when the local forms such as Mato Oput can be of help.

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Perpetrators behind perpetrators: One participant posed a question at a workshop in Gulu town, ‘who gives these people all the guns and bullets that they use’? This is a question from an innocent resident who also wonders what the world is up to when it comes to international criminal law. Of course, even without such guns and bullets, killings would have taken place by those responsible any way. However, another pertinent question would also be, ‘who feeds them and gives them the drugs to treat themselves and all that they need to stay this long in the bush?’ These are the main cause of the suffering that people are undergoing. Indeed, it is disturbing to imagine a situation where, as courts of law are struggling with how to prosecute Kony and his top leaders as well as other offenders, those who actually give them the ammunitions and/or generally supported them all these years are as free as anybody else. Is this the international justice that the international community talks about (Bellelli, 2010)?

7.3.1 Selective Justice This is a concept that has often attracted and carried only negative undertones. In this section, a deconstruction of this concept is done that gives it a positive meaning. However, to make sure that the positive meaning does not get confused with the concept’s negative popular meaning, the deconstruction must be preceded by a reference to the definition given earlier on in chapter one (the use of different forms of justice to perpetrators of seemingly similar crimes or offences). Of course this does not mean that the original popular meaning (the punishment of some perpetrators at the expense of similar others) is considered obsolete or irrelevant. It is actually what makes this deconstruction unique and significant in the context of the conflict under study. Almost all literature on selective justice connotes the negativity of the concept. For instance, while at a consultative dialogue meeting with LRA war victims in Gulu, northern Uganda, Sang-Hyun Song, the president of the ICC reiterated that there will be no selective justice for trials into war crimes committed in northern Uganda. This followed complaints from victims of war to the effect that the ICC had been one-sided in the investigations that led to the indictment of the top rebel commanders. It is

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observed that government soldiers committed atrocious actions and were culpable for similar crimes in the region. Similarly, approaching it from a feminist dimension, Prichett, (2008:269) hinted on how specific “…charges were sidelined in the case of Prosecutor v. Thomas Lubanga… [and: MN] questions the extent of the Prosecutor’s discretion …in the Rome Statute”. Further, Amnesty International (2009) wondered whether the Special Tribunal for Lebanon is not a clear show of selective justice in its negative sense. Generally, in the aftermath of most wars or situations of violence, there are always accusations of selective justice. The examples are those of Kosovo (in the former Yugoslavia), DR Congo (Aertsen et al, 2008) and more recently, the violence that followed elections in Kenya. In every sense of it all, selective justice is negatively portrayed. This thesis does not necessarily challenge this portrayal challenged because the definition of selective justice entails such accusations. However, for the case of the kinds of perpetrators in the northern Uganda conflict, the use of different forms of justice shows that selective justice does carry a positive connotation too. For example, as has been raised by respondents in this study, they do not consider it as fair to handle Kony through processes of the Mato Oput ritual just like his young captives who carried out the actual killing of people in northern Uganda at his orders. Yet, the latter cannot just be left to enjoy impunity for their actions. This means that a disaggregation of perpetrators is important to tease out who is handled under each available form of justice. In whichever form a given perpetrator is handled, the victims need to be at the center of the process. Otherwise, it would not be their justice. The diagram below shows a hypothetical interplay of the justice forms as well as how selective justice may positively be portrayed.

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In the above diagram, it is shown that each approach to justice has both retributive (shown in dark blue color) and a restorative elements (shown in light blue color). It also shows how selective justice can have a positive connotation; in which case, captors are taken to forms that are more retributive than restorative.

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CHAPTER EIGHT: RECOMMENDATIONS AND CONCLUSION 8.1 Recommendations Interplay of justice forms: There is a great need for the exploration and/or application of informal justice avenues such as the traditional justice mechanisms within this region. These mechanisms need to work alongside formalized justice mechanisms. Albeit their seemingly informal and ritualistic processes, they are and will assist in attaining a form of holistic healing and a kind of justice which is considered acceptable to the different categories of victims and offenders. The intonation such as those from the army spokesperson; which assumes that their internal military punishment of individual government soldiers’ criminal behavior was enough does not resonate well with victims’ perception of justice. It may be true that they were indeed punished but those they offended do not agree or even believe that they were punished. There are those they saw committing atrocities but have instead been promoted to higher ranks in the same army! They wonder and question the kind of punishment they were given in that regard. This implies that the justice process (which purportedly took place) was not restorative in nature. It never paid attention to the needs of the victims. This is why, it is important that local mechanisms are given some clear space in the overall process of administering justice in the region. This is because these mechanisms are not only restorative and victim-offender-centered, but also accommodative to all stakeholders of this atrocious conflict. These informal mechanisms can be explored and applied through already existing cultural institutions, especially through and/or by their leaders; who can continuously dialogue to mitigate feelings of vengeance that exist amongst community members towards those who are believed to have offended them.

Accepting and taking responsibility: From many of the narratives, it has been observed that there exists a sense of bitterness among the victim community members towards government, which results especially from its unwillingness and/or smug behavior to acknowledge responsibility of some of the atrocious actions. As was seen in the literature review (postulated by Misener, 2001), taking responsibility shows that the offending party accepts the hurting reality of its

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actions and that there is readiness to change. It is a sign and promise of never again to offend. The offenders’ collaboration is a crucial aspect to a restorative justice process, especially with regard to accountability. It is in this condition of accepting responsibility that offenders critically consider their inner conscience and accountability for the harm to the victims. It is a healing moment for both the offenders and victims. It is therefore important for the government to make unsolicited acknowledgements of their wrong actions. The feeling that government has not been accountable enough to the victims who still have fond memories of what soldiers did to them is evident in the region. If there can be at least some kind of public apologies to victims for their failure to protect them from rebels when they were in camps, affected members would feel a sense of reconciliation. Some of these apologies have been offered but in a politically motivated sense. In this case, these apologies are made by one side of the mouth but denials of the very bad actions continue on the other side of the same mouth.

Mass education and sensitization: It was observed that there is still a high level of ignorance about the role of the retributive forms of justice such as the International Criminal Court. Most victim community members have a wrong perception of the work of the International Criminal Court. This has been exacerbated by the politicization of the referral process of the northern Uganda case to the court; let alone the perception that it has been partial in its investigations so far. Others are just interested in the reparations part of the justice process, even from the national courts of law. Those who have been knowledgeable about the Trust Fund for Victims under the ICC will fervently support and favor the court’s involvement because of the hope to be compensated. When this does not happen, there will be frustration on the victims’ part, whose expectations are very high about the same. This is why there is a dire need for continued mass education and sensitization about the work of each institution.

In line with the above recommendation, there is need to formulate and expedite the implementation of a reparations policy in Uganda. The tendency for government, (especially political leaders) to make political statements and

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promises regarding actions such as restocking during election campaigns may be considered to be a show of lack of remorse to people’s suffering. The said policy needs to capture the provisions of the Agreement on Accountability and Reconciliation (2007). Of particular concern and sensitivity in this policy should be the issue of the kind of victims and form of their victimizations. Otherwise, the whole region now needs a kind of reparation process; an overhaul in terms of its overall development strategy. This strategy needs to be somewhat different from that meant for other parts of the country. While the government has tried to put up memorial sites and monuments to sooth people in the region, some of them are viewed with skepticism. They are instead a source of further hurt in some cases. Hopwood (2011:19), after carrying out a study on memorials and memorialization in the region pointed out that “…all of the purely symbolic memorials, including monuments and ceremonies, led variously to unfulfilled expectations, retraumatization, corruption, marginalization and exploitation of victims and survivors, intercommunity feelings of revenge and envy, and other ills”. For those who know or believe that government soldiers actually committed atrocities on people in specific places, memorials organized by government are viewed as a cover up of their guilt. It is therefore important that memorialization is done under the initiative of the local community members themselves. They only need to be supported where they need such support. The politicization of memorial ceremonies is a big hindrance holistic healing, especially as victims view them as a kind of cover up for some of the guilt and transfer of responsibility to only the Lord’s Resistance Army.

National Reconciliation and Unity: The International Crisis Group - ICG (2003:23) noted that “…the Acholi must be made to feel a part of Ugandan society. The NRM simply has not succeeded in unifying the country. To rectify this will require specific political, economic and social initiatives aimed at building the North’s connections with the central government while enhancing autonomy and localized decision-making.” This is very crucial because, without a sustained presence of government works socioeconomically and politically, the northern Uganda communities feel as alienated by the Kampala regime as their

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southern Sudan counterparts were by the Khartoum regime. A local religious leader asserted that “… it is absolutely necessary for the people …to have a common memory of … past history …we will never become one people, one country, one parliament. There will always be a reaction depending on who is on the chair. So we are not building a nation, we are not building a people…Government of Uganda at any given time must not continue making political statements… You know, transitional justice system will never work where people are not together. It will never work because it must all be geared to reconciliation as the ultimate goal. Otherwise, you will be wasting your time; you will be wasting your money, doing a lot of research for nothing…”(Local leader 2).

Socioeconomic and political empowerment of victims and victim communities: Victims, returnees as well as the general community members need a holistic long term empowerment program to avert the appalling conditions under which they live. Much as the work of the nongovernmental organizations is undoubtedly important, they need to stop their ‘hand-outs’ approaches to these conditions. These approaches have (kind of) disempowered even the hitherto hardworking and able persons there. This is so much so that they cannot creatively think of productively engaging their environments, but rather, to sit and wait for nongovernmental organizations to bring them such handouts. Such organizations need to provide people the with means to produce for themselves rather than giving them already made survival items; which after they are finished, people still expect more from. That is, giving them the hooks to fish is far better than the fish itself.

The role of external forces: Globalization, arms trade and international relations are all forces that positively or negatively underpin the construction and reconstruction of social order. They may boost or confuse local ignorant community members so much so that they are either empowered or disempowered from taking charge of their destinies. The role of the internet for example has made alterations in many aspects of societies. The good side is that anything done in a smallest village in northern Uganda can move distances and be seen in other parts of the world in seconds. This can ignite efforts to rectify it. On the other hand, thieves are using the same methods to siphon funds and dupe donors in

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similar fashions. Trading in arms as well as international relations are yet issues that seem to elude the politics of law. Is it any wonder that Kony has all the arms he uses? Does a civilized world really need arms and trading in them, knowing very well that they are going to be used to kill others? The answers to these questions need further research since they are part of the big problem ahead.

The International Criminal Court’s role continues to be a critical aspect with regard to the administration of justice in Uganda and elsewhere in the world. While efforts are being made to localize the court’s activities in Uganda, there are limiting factors that need being addressed first. A special division at the high court of Uganda was established in 2008 to handle international crimes; and in 2010, the international Criminal Court Act was passed. However, when the division started its operations, the usual legal battles between the government (prosecutor) and defense lawyers appeared to take precedence and/or center stage. The victims are again seen to be at the periphery of the whole process and the proceedings. This is so far not health for transitional justice. These were notoriously punctuated and diluted by the divergent attitudes of victim community members towards the initial defendant, Thomas Kwoyelo. Moreover, the successful conclusion of this case should set a good precedent for other cases that would follow. The court needs to intensify its efforts here, its internal and financial problems notwithstanding.

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8.2 Conclusion In the thesis, three main questions were raised whose answers need to be clearly spelt out here. The first of such questions was whether and how the different forms of punishment; their processes and proportions (in situations of conflicts such as in northern Uganda) can translate into justice from the victims’ point of view. The second question related to victims’ perception of selective justice in its positive sense - punishing perpetrators of similar crimes under different forms of justice. The third question concerned the effect of the seemingly parallel co- existence of retributive (mainly formal) and restorative (mainly informal) forms of justice; on the administration of justice in the aftermath of the northern Uganda conflict.

On punishment, its forms and processes; it is concluded that both retributive and restorative forms carry some form of punishment. The only problem is to do with differences in processes and proportionality. While formalized retributive forms attribute responsibility on individual offenders and punish them in what is referred to as proportionate manner, informal restorative forms spread responsibility to families and clans. In this way, the whole clan or community pays for an individual’s offense. This then bestows upon communities a responsibility of controlling crime. This is consistent with what Braithwaite (1989:8) pointed out when he stated that“…crime is best controlled when members of the community are the primary controllers through active participation in shaming offenders … where ... communities prefer to handle their own crime problems rather than hand them over to professionals.” Shaming is for example a form of punishment which may not be perceived as such. Yet in traditional restorative mechanisms such as the rituals in Mato Oput, the individual is made to undergo a kind of shaming, making it clear to others that it is not good to offend. It is under such contexts that confining the aspect of punishment to retributive forms of justice only may be considered unfair, if not objective. If this is to be done, then an operational meaning of punishment must be provided. Further, taking perpetrators to the International Criminal Court yields justice to some on one hand, but may be also viewed as fulfillment of the politics of law on the other. In fact, unless all alleged

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perpetrators are similar indicted, tried and punished; and victims satisfactorily compensated, the International Criminal Court’s work continues to be perceived as a grabber of justice from those who needed it. However, the processes, procedures and limitations of the International Criminal Court make it had for it to ably handle most of the allegations. For instance, it cannot handle offenses that took place before July 2002. This means that some level of discriminations has to inevitably occur. This then floats the idea of selective justice in its positive sense.

In regard to victims’ perceptions towards selective justice, it was found out that the victim community members recognize the difficulty and/or even the unfairness of punishing every perpetrator in a similar way. For instance, if formal courts of law are to be the only applicable form, then almost everybody in the region may be arrested. However, there is also a vivid understanding that top leaders may need to be handled in a somewhat different arrangement than those below them. What is disturbing is the fact that there is persistent denial by both sides to the effect that each of the sides committed atrocious actions on the people. It will be easily perceived as unfair to have Kony taken to the International Criminal Court but not the top commanders of the government soldiers who were alleged to have overseen the commitment of atrocities in the region. Therefore, selective justice can be understood in a positive sense by victims only if perpetrators of similar crimes are differentiated according to ranks and/or differentiated as captors and captives. Otherwise, those at the same levels need to be handled under similar forms.

The co-existence of retributive (mainly formal) and restorative (mainly informal) forms of justice is not a new phenomenon in Uganda. Even without consideration of the conflict, if one murdered, formal courts of law would handle the case. After such formalities (including sentencing and serving of such sentence), traditional ritualistic forms would also take place. However, in the aftermath of the war in northern Uganda, there seem some dilemmas in regard to who can be handled under which form. This brings the question of what people generally understand as justice. Justice is as multidisciplinary as the many subjects that contribute to its

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conceptualization, involving several different perspectives and fields of expertise (Margot and Mulwale, 2011). Therefore, a harmonious interplay of the forms of such an interdisciplinary aspect of society is seemingly difficult. It is within such difficulties that the parallel co-existence of modern formal retributive forms and traditional informal restorative are not only inevitable but also useful. While traditional forms appear to jeopardize formal forms, they cover a psycho-social gap that may be created by purely retributive forms.

To sum up, northern Ugandan communities will fully come to terms with their recent past if issues of peace and justice (particularly selective justice in a positive sense) are comprehensively addressed. Besides, there needs to be massive education on what justice entails and what each form of justice is capable of offering. The misconceptions about the work of the International Criminal Court have for instance caused negative understandings and perceptions about its operations. Similarly, traditional forms will only be good as long as they are applied in a way that they do not contradict formalized retributive forms. And as it has been shown in this thesis, this is possible. The only requirement is that stakeholders need an understanding and guidance on the limits of the same. Indeed, the complexity of the criminal aspects of the northern Uganda conflict, in view of perpetrators and victims calls for a complexity in approaches to justice that are applied. The parallel and antagonistic portrayal of retributive and restorative justice is unjustified since these can all apply in some interconnected ways. Neither should the perception that selective justice is entirely negative be sustained. In addition, there is need to accompany such interconnected approaches with sustained government service delivery such as education, health and infrastructural development. Otherwise, just capturing Kony and his commanders only; and trying them at the International Criminal Court may not necessarily tantamount to justice in the eyes of those who need it.

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REFERENCES AND BIBILIOGRAPHY Afako, B. (2002) ‘Reconciliation and Justice: ‘Mato oput’ and the Amnesty Act’, in: Accord 11: Protracted Conflict, Elusive Peace. Initiatives to End the Violence in Northern Uganda, London: Conciliation Resources.

Andenaes, J. (1972) ‘Does Punishment Deter Crime?’ in Ezorsky, G. (ed.) Philosophical Perspectives on Punishment, Albany: State University of New York.

Andrews, J. (2008) Sociology of Jihad: How Rational People Commit Atrocities. Journal: The Counter Terrorist Volume: 1 Issue 2, July/August 2008 Pages: 26- 32.

Allen, T. (1991) Understanding Alice: Uganda’s Holy Spirit Movement in context’, Africa, 61(3): 370-399

Allen, T. (2006) Trial Justice, the International Criminal Court and the Lord's Resistance Army, London: Zed Books.

Allen, T. and Schomerus, M. (2005) A Hard Homecoming, Lessons Learned from the Reception Centre Process on Effective Interventions for Former Abductees’ in Northern Uganda, study commissioned by UNICEF and USAID, Kampala

Amnesty International (2009) The Special Tribunal for Lebanon. London: Amnesty International Publications

Arsovska, J., Valiñas, M. and Vanspauwen, K. (2008) ‘From Micro to Macro, from individual to state: restorative justice and multi-level diplomacy in divided societies’, in Aertsen, I., Arsovska, J., Rohne, H., Valiñas and Vanspauwen, K. (eds.), Restoring Justice after Large-scale Violent Conflicts: Kosovo, DR Congo and the Israel-Palestinian case, Devon: William Publishing.

Bandura, A. (1990) ‘Mechanisms of moral disengagement’, in Reich, W. (ed), Origins of terrorism: Psychologies, ideologies, theologies, states of mind, Cambridge: Cambridge University Press.

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APPENDICES Interview guide for unstructured interviews Introductory issues: Sample of introduction • Thank you I want to thank you for taking the time to host me. My name is ___ • My name and I would like to share with you views on the conflict in Northern • Purpose Uganda. Specifically, as one of the local researchers and justice • Confidentiality activists, I would like to get your views on how justice can be • Duration realised in this conflict, not only as an academic study, but also to • How interview will be gain insights into interventions in local and social justice in Uganda. conducted I will take some time with you, and where necessary, I will be taping and photographing some actions in your place/home, if you don’t mind, just because I don’t want to miss any of your comments and actions. I will be noting some facts as we talk, I can’t possibly write fast enough to get it all down. All responses will be kept confidential. This means that you will tell me will only be shared with me and my school and we will ensure that any information we include in our report does not identify you as the giver. Priority A. On crimes 1) To victims: May you please tell me what happened to you on that guiding (those) fateful day(s)? [probes such as where were you, with who Questions and doing what may accompany this item] To others: May you please comment on what happened in…………………………(specific place of occurrence) B.On 2 a). To Victims: To whom exactly do you attribute what happened perpetration to you? To others: Whom do we blame; i. on the atrocities ii. for this conflict? (Probes- LRA fighters, government soldiers or any other persons or governments- mention them). 2 b) To victims: basing on the above and in your opinion, who is the perpetrator of what happened to you? To others: In your opinion, who is the perpetrator of atrocities that took place in this conflict)? 3) What are you feelings about such perpetrators? How do people react to them when they return? 3. On form of The ICC’s work there, how it is viewed visa vie local forms, the justice nationa judicial system and its credibility a) May you please tell me what is being done in addressing perpetrators? Is there anything being done regarding what happened to you/here? Do you think other actions are needed to realise justice? Which ones? * others are to be derived later, basing on the above responses and documentary reviews Note All other insights and reactions – to be followed in an unstructured probing manner to capture the local use of the concepts of retaliation, mediation and punishment

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As a backup for those who may not be willing to sit and talk to me intensively but literate, a Self-Administered/posted questionnaire was constructed as hereunder:

Dear Professor/ Dcoctor/Sir/Madam/Honarable, My name is Nathan Muwereza, a doctoral student based at the Max Planck Research School on retaliation, mediation and punishment in Freiburg, Germany. I am in the process of generating empirical data for my thesis on ‘Retributive Vs. Restorative Justice in the northern Uganda conflict: Transnational Perspectives and implications for the international criminal court’. For this reason, you have been purposively selected to help provide information relating to this study. I will be very grateful if you helped answer this questionnaire. Please freely express your opinions because there are no obligations to you in what the final thesis will bring forth. As such, there is no need for you to even write your name or contacts anywhere in this questionnaire (i.e, confidentiality is guaranteed).

A. On Atrocious actions

1. May you please state what happened to you individually during the northern Uganda conflict as a direct victim or indirect victim.

Direct victim ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… Indirect victim ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ………B. On perpetrators of atrocities and victim attitudes about them 2. If you are a direct victim, to whom do you attribute what happened to you? (E.g. LRA rebels, external government or any other party in the conflict) ……………………………………………………………………………………… ……………………………………………………………………………………… ………………………………………………………………………………………

3. If you are an indirect victim, whom do we blame: a) for the atrocities committed? ………………………………………………………………………………… ………………………………………………………………………………… ………………………………………………………………………………… b) for the conflict? …………………………………………………………………………………

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4. If you are a direct victim of the northern Uganda conflict, who do you think is the perpetrator of what happened? ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… 5. If you are an indirect victim, who do you think is the perpetrator of what happened in the conflict? ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… C. on form of justice 6. What is being done to address the criminality of perpetrators in northern Uganda conflict? ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… 7. What should be done to a person or group of persons for what they did during this conflict? ……………………………………………………………………………………… ……………………………………………………………………………………… …………………………………………………………………………………….. 8. Do you think other actions or forms of justice would help in realising meaningful justice? ……………… If yes, which ones? ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… For purposes of data analysis, May you please tick the category you belong to among:

MPs…………………………………… LCV leaders…………………………. Civil servants……………………….. Religious leaders……………………. NGO or humanitarian workers…… Others, (please specify)…………….. Ethnic origin (please write)……….

Thank you so much!

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Field Map

7 6 5

4 2 A 3

1 Key A Main center for stay (Gulu and sorroundings) Movement routes and plans Conflict zone bourda Respondent sites 1. Kampala 2. Amuru (Pabo and Atyak) 3. Lira/Oyam (Barlonyo) 4. Pader and Awere 5. Kitgum (Muchwini) 6. South Sudan (Ikptosi), 7. South Sudan (Owiny Kibul)

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Field photos

Above: The journey to one of the villages where people lived and where they grow their crops now.

Below left: Wang oo near Gulu town Below right: Wang oo in Atyak

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