National Transitional Justice Policy: a New Dawn for Uganda

The JLOS Bulletin Special edition on Transitional Justice www.jlos.go.ug | December 2020

National Transitional Justice Policy: A New Dawn for Uganda

INSIDE The Uganda Interview with Justice Transitional National Transitional Jane F.B Kiggundu of the Justice in Uganda: Justice Policy International War Crimes Milestones and (NTJP): An Overview Division of the High Court Achievements Contents Contents www.jlos.go.ug | December 2020

8 National Transitional 33 African Perspective Justice Policy African Union Adopts A New Dawn Transitional Justice Policy of Hope African Union Transitional Justice Initiatives: Harnessing Transitional Justice Opportunities for Peace and 16 Report Card (2019 - 2020) Development in Africa

36 Witness Protection Witness Protection: Implications for the Prosecution of War Crimes

38 International Criminal Court Dominic Ongwen: ICC Case Information Sheet LRA Boss Ongwen: ICC to 20 Deliver Verdict on January 12 About the International Criminal Court (ICC)

42 Amnesty Amnesty as an Arm of Transitional Justice: Uganda’s experience Transitional Justice Mechanisms Mato-oput Should the Judiciary Blend in Traditional Justice 44 Reparations A path to Reparations for victims of Gross 30 Human Rights Violations in Uganda International Crimes 46 ICTJ Division (ICD) International Centre for Interview with Transitional Justice (ICTJ) Justice Jane F.B Kiggundu

ii Special edition on Transitional Justice www. jlos. go. ug Editorial

Editors’ Note The JLOS Bulletin Special edition on Transitional Justice www.jlos.go.ug | December 2020

National Showcasing Key Transitional Justice Policy: A New Milestones of Uganda’s Dawn for Uganda

National Transitional INSIDE The Uganda Interview with Justice Transitional National Transitional Jane F.B Kiggundu of the Justice in Uganda: Justice Policy International War Crimes Milestones and Justice Policy Journey (NTJP): An Overview Division of the High Court Achievements PUBLISHED BY:

elcome to this ment of a legal framework the Government’s commit- edition of the to the implementation of ment to peace, justice and JLOS Bulletin initiatives aimed at enhanc- reconciliation. It reflects special edition ing access to justice through the Government’s core Won Uganda’s Transitional Transitional Justice mecha- objectives aimed at ending Justice process. In 2019, nisms. Sector institutions are impunity and promoting Cabinet considered and being supported to imple- justice and reconciliation as approved the National ment specific Transitional necessary precursors to sus- Transitional Justice Policy Justice interventions that cut tainable development. The Justice, Law and (NTJP). This was a landmark across legislative develop- In this special edition of Order Sector Secretariat achievement and a major ment, law reform, prosecu- the JLOS Bulletin, we explore Ministry of Justice & milestone as it made Ugan- tion-led investigations, adju- Uganda’s Transitional Justice Constitutional Affairs Level 3, da the first African Union dication and rehabilitation of experience and showcase Bauman House, Parliament Av. Member State to enact such combatants. The programme the various achievements, P.O.Box 7183, Kampala Uganda a policy. The Policy is an also takes into account the milestones, challenges and Phone: +256(414) -253207 overarching framework by unanimity of common opportunities of our Transi- Email: [email protected] the Government of Uganda values, principles and stan- tional Justice programme. Website:www.jlos.go.ug (GoU), designed to address the justice, accountability and reconciliation needs of Publishing Consultants post-conflict Uganda. The Policy proposes the use of a combination of Over the years, the JLOS Transitional formal and informal (alter- Justice programme has successfully native) justice mechanisms. evolved from the development of a legal The Transitional Justice (TJ) programme was first framework to the implementation of institutionalised at JLOS in initiatives aimed at enhancing access 2008 when Cabinet directed Editorial Team the implementation of the to justice through Transitional Justice Agreements resulting from mechanisms Margaret Ajok peace negotiations between Edgar Kuhimbisa the Government of Uganda and the Lord’s Resistance Army (LRA) in Juba, South Contributors Sudan. These peace negotiations gave the momentum dards of the Sector; such as We commend this mag- Nathan Twinomugisha for the development of a accountability, transparency, azine and encourage you Sarah Kasande Kihika legal framework for the Gov- victim participation, vulner- to give us your feedback Ismene Nicole Zarifis ernment of Uganda to imple- ability, gender equality and and thoughts on Ugan- Margaret Ajok ment Transitional Justice. the best interests of the child, da’s transitional justice Lino Anguzu Over the years, the JLOS among others. process – especially in Edgar Kuhimbisa Transitional Justice pro- The development and regard to the enactment Jacky Achan gramme has successfully approval of the NTJP is of a national Transitional Anthony Wesaka evolved from the develop- therefore an affirmation of Justice policy. JLOS John G. Ikubaje Moses Baluku Grace Acan Advocats San Frontiers (ASF)

www. jlos. go. ug Special edition on Transitional Justice iii Editorial

Rt. Hon. Dr. Ruhakana Rugunda Prime Minister of the Republic of Uganda

Rt. Hon. Ruhakana Rugunda, the Prime Minister resolution, directed all Ministries, Departments of the Republic Uganda has played a pivotal and Agencies (MDAs) to immediately within role in shaping the Transitional justice discourse their mandate implement the Juba Peace in Uganda, most significantly the Juba peace Agreements, a process that kick started national process that highlighted the need for justice, consultations on the feasibility of implementing accountability and reconciliation in conflict and the provisions of the Agreements. For JLOS, this post conflict situations. Notably in 2008, after a process inspired the development of the JLOS report of the Minister of Internal Affairs on the Transitional Justice Working Group (TJWG) that Juba peace process, the then Prime minister embarked on development of the legal framework Professor Apollo Nsibambi, upon a cabinet for the realization of Transitional Justice.

iv Special edition on Transitional Justice www. jlos. go. ug Editorial

ACKNOWLEDGEMENT

Transitional Justice was first adopted by the Sector in 2008, when the 3rd National JLOS Forum considered it in-depth and resulted in firm commitments. These included the establishment of the JLOS Transitional Justice Working group (TJWG) as a think tank on issues of transitional justice to make recommendations and decisions. The main terms of reference for the group was to design a framework for the implementation of the national transitional justice framework; a multifaceted justice approach that would encompass all aspects of justice (formal and non-formal).

The Justice, Law and Order Sector (JLOS) would like to acknowledge the following persons and institutions that played a pivotal role in the process of developing the Uganda National Transitional Justice Policy (NTJP).

Rt. Hon. Dr. Ruhakana Rugunda Prime Minister Hon. Justice Richard Buteera Deputy Chief Justice (Former Director of Public Prosecutions) Hon. Justice Eldard Mwangustya Justice of the Supreme Court Hon. Justice (Rtd) James M. Ogoola Retired Principal Judge, Chairman JSC and Chairperson TJWG Hon. Justice (Rd) Yorokamu Bamwine Retired Principal Judge Hon. Justice Lawrence Gidudu Judge of the High Court of Uganda and Chairperson TJWG Hon. Justice P.K Onega Chairperson, Amnesty Commission Hon. Justice (Rtd) Dan Akiiki-Kiiza Retired Judge of the High Court of Uganda Hon. Justice (Rtd) Elizabeth Ibanda - Nahamya Retired Judge of the High Court of Uganda Hon. Justice Paul Gadenya Judge of the High Court of Uganda (Former Senior Technical Advisor, JLOS) Hon. Frederick Ruhindi Former Attorney General Dr. Johnson Byabashaija Commissioner General, Uganda Prisons Service Mr. Francis Atoke Solicitor General Dr. Benon Mutambi Permanent Secretary, Ministry of Internal Affairs Mr. Christopher Gashirabake Deputy Solicitor General Dr. S.P Kagoda Former Permanent Secretary, Ministry of Internal Affairs Ms. Harriet Lwabi First Parliamentary Counsel Ms. Rachel Odoi-Musoke Senior Technical Advisor, JLOS Secretariat H.W Gladys Nakibuule Kisekka Judiciary H.W Lawrence Tweyanze Judiciary Development Partners Members of the JLOS Development Partner’s Group Cultural Leaders Uganda Cultural Leaders Mr. Sam Rogers Wairagala JLOS Secretariat Ms. Margaret Ajok JLOS Secretariat Ms. Ismene Nicole Zarifis Formerly at the JLOS Secretariat Mr. Ronald Sekagya Judicial Service Commission Dr. Roselyn Karugonjo-Segawa Leadership Code Tribunal (formerly at UHRC) Mrs. Grace Eudia Ocitti Former member of the Amnesty Commission Ms Joan Kagezi (Deceased) Office of the Director of Public Prosecutions Mr. Venice Baguma Tumuhimbise Uganda Police Force Mr. Simon Nangiro Lowot Ministry of Internal Affairs Ms. Lynette Bagonza Ministry of Internal Affairs Mr. Nathan Twinomugisha Amnesty commission Ms. Jane Frances Adongo Uganda Law Reform Commission Ms. Florence Ochago East African Community (formerly at Uganda Law Reform Commission) Ms. Jeroline Akubu Uganda Law Reform Commission Ms. Irene Lugayizi Ministry of Justice and Constitutional Affairs Ms. Juliet Komugisa Ministry of Justice and Constitutional Affairs Mr. Lino Anguzu Office of the Director of Public Prosecutions Ms. Lillian Kiwanuka Uganda Law Reform Commission Mr. Charles Birungi Uganda Law Reform Commission Mr. Andrew Kisitu Uganda Prisons Service Mr. Andrew Mubiru Kizimula Uganda Police Force Mr. Edgar Kuhimbisa JLOS Secretariat

www. jlos. go. ug Special edition on Transitional Justice v Overview The Uganda National Transitional Justice Policy: An Overview

The National Transitional Justice Policy is an overarching framework of the Government of Uganda (GoU); designed to address the justice, accountability and reconciliation needs of post- conflict Uganda. The Policy provides a holistic intervention to achieving lasting peace in a country whose history has until recently, been marred by political and constitutional instability. A combination of justice mechanisms is proposed in the Policy. It, therefore, marks a major milestone in the history of the administration of justice in Uganda as well as Africa.

n June 2019, Uganda became the first Policy Objectives country to adopt a National Transi- The objectives of this policy are: tional Justice Policy, after the African To address the gaps in the formal jus- Union’s (AU) adoption of an AU Tran- tice system for post conflict situations; Isitional Justice Policy. To formalize the use of traditional jus- The Constitutive Act of the African tice mechanisms in post conflict situa- Union 2000, recognizes the fact that the tions; scourge of conflicts in Africa constitutes a To facilitate reconciliation and nation major impediment to the socio-economic building; development of the continent and the need To address gaps in the current amnesty to promote peace, security and stability. process; and Transitional Justice is a range of processes To provide reparations for post conflict and mechanisms associated with society’s situations. attempt to come to terms with a legacy of large – scale past abuses and human rights Guiding Principles violations in order to ensure accountabili- This policy takes into account the una- ty, serve justice and achieve reconciliation. nimity of common values, principles and Transitional Justice consists of both judi- standards shared across communities in cial and non-judicial processes and mech- Uganda. It identifies the following key val- anisms including prosecution initiatives, ues and principles to guide the implemen- truth-seeking, reparations programmes, tation of this policy. institutional reform or an appropriate com- Victim Centeredness: Victim partici- bination thereof. pation in the design, implementation and The development of a National Policy on oversight of TJ will ensure that interven- Transitional Justice is an affirmation of the tions are meaningful, timely and have Government of Uganda’s commitment to impact. national reconciliation, peace and justice. It Vulnerability: The Policy recognizes reflects the Government of Uganda’s core that during and after conflict, certain cat- objectives of ending impunity and promot- Sustainable peace, reconciliation and egories of persons are immensely affect- ing justice and reconciliation as a necessary nation building, ed. In this Policy vulnerable persons shall precursor to sustainable development. It Enhanced victim participation and wit- include; formerly displaced persons, for- recognizes that Ugandans aspire to live ness’s protection, merly abducted persons, women, children, peacefully with citizens of other countries Traditional Justice Mechanisms for- and persons with disability, the elderly and in harmony within their social, cultural malized, and the youth, who are most vulnerable in and ethnic diversity. Socio-economic empowerment of war times of armed conflict. The Government has over the years victims and communities, Gender Equality: Gender equality is reiterated the need for peace, stability and Rehabilitation and reintegration of an integral part of national development social cohesion as important prerequisites affected persons enhanced, and processes. It reinforces the overall develop- for the development of the country. Gaps in the Amnesty process ment objectives in the country. This policy The Transitional Justice Policy imple- addressed. emphasizes Government commitment mentation will, therefore, set a base for to the mainstreaming of gender consid- economic development and inclusion of all Policy Vision erations in all components of transitional Ugandans in national development. “A peaceful, just and stable Uganda”. justice. This policy will serve as an overarch- Best interests of the Child: Children ing framework that will address justice, Policy Mission have for decades been entangled in conflict accountability and reconciliation needs “To promote national reconciliation, and its aftermath, yet limited attention is of post-conflict situations. It will create a peace and justice” . placed on their role in negotiating the best holistic intervention in achieving lasting justice, peace and unity options they would peace and stability. Policy Goal aspire to. This Policy will place special The following will be the major out- “To provide a framework for manage- emphasis on the contribution of children in comes of the policy: ment and operations of formal and infor- justice as well as adhere to their best inter- Restoration of trust between Govern- mal justice processes in post conflict situa- ests. ment and communities, tions”. Transparency: Transparency is para-

6 Special edition on Transitional Justice www. jlos. go. ug Overview mount for transitional justice as stakehold- invaluable function in conflict and dispute ers must be kept in constant communica- resolution especially among disadvan- tion with actors. In particular, this Policy taged populations in conflict and post con- underscores the fact that all local reconcil- flict environments. This is so because the iation processes will be underpinned on formal justice systems are often inoperative openness of all parties. or inaccessible in such situations. Accountability: Responsibility for stake- As such, traditional justice plays a com- holder action during the implementation of plementary role to the formal justice sys- the policy will promote confidence in the tem. Its formal recognition as a medium to processes. It also means continuously chal- enhance access to justice is becoming more lenging actors to effectively and efficiently appealing. In Uganda, traditional justice use resources to fulfil the agreed roles and has been used as a more accessible option set goals of the policy. than formal law in most communities. The Public Participation: Transitional jus- Policy envisages that the Traditional justice is a community driven justice process, Maj. Gen. Jeje Odongo tice system will be beneficial in promoting which therefore demands that the initi- Minister of Internal Affairs accountability, healing, reintegration and ators of this process actively participate reconciliation. in the design and implementation of pro- As such, the traditional justice system grammes. is instrumental in mitigation of customary Inclusiveness: This Policy will accord land disputes resulting from the conflict in equal treatment to all actors irrespective of as far as; any differences. It underscores the impor- Resettlement of persons displaced by tance of inclusive participation in conflict the armed conflict will enhance reset- prevention, peace processes, and security tlement of victims, survivors, less priv- initiatives. ileged and vulnerable or those granted Complementarity: This Policy recogniz- amnesty es that the solution to national reconcilia- Matters involving family tracing and tion and justice lies in the multiple systems reunions, parentage and identity of of justice functioning simultaneously and children born as a result of sexual vio- effectively complimenting each other. Hon. Prof. Ephraim Kamuntu lence in a conflict and inheritance Confidentiality: The transitional justice Minister of Justice & Constitutional Affairs Resettlement and reintegration of girls, process will be accorded the utmost confi- women and other formerly abducted dentiality it deserves. It involves showing most affected persons like orphans, persons and having respect for individual rights and Community matters, such as - com and freedoms which is a pillar of human Rehabilitation, such as medical, legal munal resource sharing that promote dignity. Emphasis will be placed especially and psychosocial initiatives to address peace and social harmony and on victim concerns. especially trauma and stigma Conducting rites, ritual and ceremo- Neutrality: This policy takes cognizance Resettlement and reintegration nies that facilitate the traditional justice of the need to build confidence in all her Burials and reburials of the dead system stakeholders. As such its implementation Construction of memorials, and monu- will adopt a non-partisan and objective ments in remembrance of the deceased; Nation Building and Reconciliation approach in order to maximize engage- to foster a culture of memory/memori- In order to achieve reconciliation and ment, obtain trust and achieve results. als for healing, deterrence of conflict nation building, the Government needs to Integrity: In order to facilitate the heal- and history strengthen existing structures or resource ing of aggrieved parties, integrity is vital. Satisfaction or processes to facilitate nation building and This policy advocates for consistency and Acknowledgement or apology reconciliation at all levels. This can be accuracy in the implementation of transi- achieved through the practice truth seeking tional justice processes. Amnesty which is being globally acclaimed for its There shall be no blanket amnesty and reformative and reconciliatory nature. The Reparations the Government shall encourage those practice is also instrumental in facilitating Reparations; redress given to victims of amnestied, to participate in traditional jus- other dispute resolution mechanisms. gross or serious human rights violations or tice processes for purposes of meaningful The use or adoption of truth seeking at abuses. Reparations can take material and reintegration and reconciliation. all Policy initiatives will support: symbolic form as well as individual or col- In effect, the Policy envisages that per- The verification of legitimate claimants lective form these include; restitution, reha- sons will only be eligible for amnesty on for reparations bilitation – medical, legal and psychosocial, the basis of making full disclosure of all The mitigation of formal court pro- satisfaction-acknowledgement of guilt, the facts relevant to the violation or abuse ceedings apology, burials/reburials, construction of of human rights, and that a person has The initiation of traditional justice memorials/memory days, and guarantees not committed war crimes, crimes against mechanisms of non-repetition, reformation of laws or humanity or genocide, and that a person is The award of an amnesty certificate structures. not a child. The true record of injustices that will The reparations in this Policy context The Policy further envisages that where contribute to national history that may be short, medium or long term, mate- a child has been exposed to armed rebel- will deter future conflict and enhance rial, individual, collective or symbolic and lion, on return, the child shall be subjected national unity may include: to available demobilization, resettlement Ascertain and document human rights Restitution; Mitigate land conflict that and reintegration establishments within violations that took place in communi- has emerged as a post conflict issue the community or as established. ties, their impact and magnitude Social– economic support Recommending actions for redress social services for the affected commu- Traditional Justice Facilitate conflict prevention and - dis nities; like education and health for the Traditional justice systems play an pute resolution. JLOS www. jlos. go. ug Special edition on Transitional Justice 7 Transitional Justice Policy A New Dawn of Hope By Grace Acan

Thousands of victims of rebel activities especially in northern Uganda have greeted the passing of the long-awaited policy with excitement given the opportunity it presents for healing and restoration

lease excuse me for using practical examples to illustrate the feeling that I and many Ugandans had when the process Pof formulating the National Transitional Justice Policy commenced. Just imagine the excitement that a newly married couple have when they get to know that they are expecting a child. That was the feeling everyone had when the process of setting up the Transitional Justice (TJ) policy started. I remember in the many consultation meetings which I was part of, how stakeholders spoke with passion, dedication and hope of seeing the lives of people transformed after the long-lasting war that ravaged a large part of the country. Many suggestions on how the TJ policy would take shape were made. To me, the most important part of the policy was making reparations. After getting to know the elements of reparations, I felt that I have not lost it all, at least there was hope of starting a new life for me Commissioner Grace Ocitti of the Amnesty Commission hands and others, even if complete restoration over bicycles to excombatants who were granted Amnesty. may not be possible. But again, what kept on lingering in my mind was how soon the policy would be passed so that will be in place to ensure that genuine ensure that we have a TJ policy that will I could begin to see change in the lives of reparations take shape? We all would address the needs of all affected people. victims whose lives had been torn apart like to see an inclusive and transparent Allow me to single out one specific by conflicts. You know, the situation was process in the implementation whereby individual for commendation; Ms. like a pregnant mother in labor, waiting all the victims and other stakeholders Maggie Ajok, the JLOS technical to see the face of her long-awaited new are involved and consulted on every advisor, for her passion in this process. baby. step of the way. If there was someone who was always There were a series of drafts with I would like to commend all those on the spot in every meeting - and I issues that had to be amended. With who have put in the effort, such as don’t know how many times she has every draft that came, the hope of the the technical advisors at JLOS, CSOs, been called upon to explain to the stakeholders kept on rising like the religious and cultural leaders, of course suffering population what was going demand and supply curve that we and all the victims. They all labored to on with the policy. There were always studied in Economics. The demand many questions such as: What next? increased with every increase in supply Where has the policy reached? How is but it came to a standstill where there the policy taking shape? Why has the was no demand, even when there was TJ policy taken long? Ms Ajok always more supply. made sure that she explained everything What I mean is that by the time the Allow me to single out to everyone’s satisfaction. final draft was in place, people were one specific individual Dear fellow Ugandans; now that the already beginning to lose hope because for commendation; policy is out, let’s not lose hope but the process was taking forever. But continue with the momentum we had at when the announcement was made, Ms. Maggie Ajok, the the beginning of the process until we see it was a new beginning of hope and JLOS technical advisor, light, yes it is still possible! JLOS many Ugandans could see some light at the end of the tunnel. We are for her passion in this Grace Acan is a victim of war and a human excited about the developments that process rights activist from Northern Uganda. are taking place already. But there are questions that persist. How soon will the implementation start? What measures

8 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Policy Experts Propose Way Forward for Uganda

By Advocats San Frontiers (ASF)

After a decade-long formulation and adoption process, the Government of Uganda on June 17, 2019 finally announced the passing of the National Transitional Justice Policy (NTJP) and officially released it three months later. The passing of the Policy is partly a fulfillment of the Government’s commitments on accountability and reconciliation that it made during the Juba Peace process, which started in 2006, as well as its constitutional obligations. But it is only the beginning.

he NTJP addresses the Victim Participation, Tradi- legal and institutional tional Justice Mechanisms, and framework for investi- comprehensive reparations, gations, prosecutions, preliminary requirements to Ttrials within the formal system, its own implementation. Giv- reparations and alternative jus- en the protracted process that tice approaches. These matters led to its adoption, further are clustered into five (5) key bureaucratic delays could only areas: add up to the general sense of formal justice, fatigue among TJ stakeholders, traditional justice, the victims in particular. nation building and recon- Finally, the reparation area ciliation, of the policy remains quite amnesty, vague. The idea of a repara- and reparations. tions Fund, mentioned in ear- The ultimate goal of the Thomas Kwoyelo, a former LRA commander during a court appearance lier drafts of the policy, has NTJP is to pave the way now been left out from the towards achieving peace, sta- final text, as the NTJP refers to bility and social cohesion in The long walk to adoption What next? a ‘Consolidated Fund’ without Uganda. further details. The policy is The development of the In order to achieve the objec- further silent on the question of Why does a Transitional NTJP originates from a broad tives, implementation of the court-ordered reparations for Justice Policy matter? consultative, participatory and NTJP should not be delayed victims of past atrocities and inclusive process based on any further. Also, it is import- ignores the concrete avenues The adoption of the NTJP studies and research under- ant that some of its areas be for victims to obtain repara- raises hope in Uganda; espe- taken by the Justice Law and clarified. First, the Ministry tions (including but not limit- cially for the victims who, for Order Sector (JLOS), as well of Internal Affairs, which was ed to financial compensation) the past two decades, have as consultations with and by entrusted to lead the imple- through court processes. Over- been left with uncertainty on CSOs. In the early stages of for- mentation, should set up an looking the question of repara- whether, when and how past mulation, the JLOS gathered effective coordination struc- tions would jeopardize the Pol- violations committed against views and contributions from ture, able to implement policy icy’s objectives. Indeed, victims them would be dealt with. civil society through its Tran- directions across sectors and to in Uganda have made it clear The text also provides an sitional Justice Working Group coordinate the respective con- that they expect reparations overview of how the relevant initiative. It was later trans- tributions of the multiple actors above all other outcomes of stakeholders can contribute formed into a plenary, limited involved. In particular, the their participation in account- to its implementation. The to only Government officials coordination structure should ability processes. The absence Policy specifically notes that and consequentially eliminat- organize the participation of of a perspective on reparations whereas the Government will ing CSOs from the process. In civil society organizations, as is thus likely to take away vic- provide an enabling environ- order to keep the momentum they have built strong and reli- tims’ main rationale to partici- ment for its implementation, of the advocacy, CSOs took able interface with the policy’ pate in criminal proceedings, a it will be implemented under initiatives to hold consultative beneficiaries in post-conflict key element not only in foster- a multi-sectoral, multi-dimen- meetings within their networks areas, particularly with victims ing the fight against impunity sional approach that involves and to provide feedback to of human rights violations. but also in enabling criminal collaboration between various JLOS. They advocated for the Second, the policy, albeit a justice to fulfil its reconciliation stakeholders. The necessary adoption of the policy through general framework, devotes a and restorative functions. JLOS funding will not only come providing platforms for stake- considerable part of its imple- Advocats San Frontiers (ASF) is a from the government itself but holders, including Members of mentation modalities on the key stakeholder in Uganda’s Tran- also from Civil Society Organ- Parliament through the Greater adoption of complementary sitional Justice process through its isations (CSOs), development North Parliamentary Forum, legislations. Amongst others, partnership with the Justice, Law partners and other non-State and pushed to fast-track its the Policy makes the adoption and Order Sector. actors in the private sector. development. of a Transitional Justice Act, and legislations on Witness and www. jlos. go. ug Special edition on Transitional Justice 9 Transitional Justice Policy

National Transitional Justice Policy Interventions Deliver Justice, Peace in Uganda

By Jacky Achan

For 20 years, Uganda had to put up with the brutal Lord's Resistance Army (LRA) rebellion that brought northern Uganda to its knees. The LRA was one of the most deadly rebel movements ever seen in Africa.

aving started their warfare have been other rebellions by the Allied The girls and women abducted by around 1986, the group was Democratic Forces (ADF), West Nile the LRA returned home with unwanted involved in brutal violations of Bank Front, UPDA (Uganda People’s children, diseases (e.g HIV/AIDS), the local population up to about Democratic Army, the UNLA (Uganda disabilities, and faced rejection from their H2008. National Liberation Front), and the Holy own parents and families. The LRA was responsible for abductions, Spirit Movement of Alice Lakwena. In addition, the fate of those born in conscription, mutilation, torture, rape, However, the LRA war was the longest captivity still remains hanging as they killings and displacement of thousands and most brutal. At least 30,000 people equally face rejection. Many victims of of people not just in Northern Uganda died as the LRA spread terror in northern war in Uganda are still looking for justice, but also parts of Eastern Uganda and Uganda for over two decades, displacing a situation that the Government wanted to neighboring countries. some two million people. address. Yet, the LRA war was just a continuation Lives were lost, people were moved into In order to address the problems, of Uganda’ turbulent past. Uganda has Internally Displaced People’s (IDP) camps Government initiated interventions, since independence in 1962 had to endure to live in deplorable situations; families ranging from military action to counter numerous military coups and conflicts that were separated, children were abducted, the insurgencies, peace negotiations, have left many Ugandans broken. while girls and women were sexually commissions of inquiry, and designed In addition to the LRA war, there assaulted during the war. policies notably the Internally Displaced

Kony LRA Rebels meeting Ugandan MPs and religious leaders in Juba

10 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Policy

Persons (IDP) policy and enactment of For example in 2011, the Constitutional proposed in this policy and this makes it a laws, including the Amnesty Act in 2000 Court ordered the release of Thomas great deal for victims and survivors of war and the International Criminal Court Act Kwoyelo, one of LRA commanders who as well as societies,” she says. 2010. had been charged with 53 counts of murder For the cabinet to have equally passed “All these processes have had their and other crimes, ending the country’s first the National Transitional Justice Policy successes and challenges, which precipitates war crimes trial. thereafter last year, Uganda became the the need for collective action enshrined The Constitutional Court said Kwoyelo first African country to adopt a Transitional in values of consultation, dialogue and should be given an amnesty in line with Justice Policy. cooperation,” said Eng. Hillary Onek, what was done to the other LRA rebels. “It, therefore, marks a major milestone in while still Minister of Internal Affairs. However on May 8, 2015, the Supreme the history of the administration of justice However last year, the Government Court of Uganda ruled that the trial of in Uganda as well as Africa, stated Ajok. approved the National Transitional Justice Thomas Kwoyelo was constitutional and “The Constitutive Act of the African Policy to provide a holistic intervention to should continue. Union 2000 recognizes the fact that the deliver justice and achieve lasting peace in The Supreme Court said that the scourge of conflicts in Africa constitutes a Uganda. Amnesty Act does not grant blanket major impediment to the socio-economic Mr. Ofwono Opondo, the Executive amnesty to all crimes committed during development of the continent and the need Director of Uganda Media Centre, told a the rebellion, but only grants amnesty to to promote peace, security and stability,” pressf briefing that the main objective of crimes of a war-like nature. she explained. the National Transitional Justice Policy The International War Crimes Division The approval of the National Policy on was to address the gaps in the formal (ICD) of the High Court in Uganda also Transitional Justice is an affirmation of justice system for post conflict situations, heard from a number of victims and the government’s commitment to national explained following its approval last year. witnesses that they have evidence of UPDF reconciliation, peace and justice, according He added that the Transitional Justice soldiers committing atrocities during the to a report by the Justice, Law and Order policy is also aimed at formalizing the use conflict. Sector. of the traditional justice mechanism in post- conflict situations and also to address gaps in the current amnesty process, to facilitate reparation processes and programmes, reconciliation as well as nation building,” said Opondo. Understanding the National Transitional Justice Policy The government recognized traditional justice as a tool for conflict resolution and put in place safeguard According to the Justice, Law and Order Sector report, the National Transitional to protect the rights of parties that seek redress Justice Policy was derived from the 2006 Juba peace process and is anchored in one of the visions of the national development plan, which is a peaceful and stable Uganda The report provided two basic approaches to transitional justice; the first is restorative justice, which deals with The ICD rules of procedure and evidence It also reflects the government’s core the socio- economic recovery of victims provide for the Government to offer objectives of ending impunity and and mass human rights violations and reparation or compensation to qualifying promoting justice and reconciliation perpetrators. Under this are mechanisms victims and witnesses should the trial as a necessary precursor to sustainable such as acknowledgment and truth seeking, produce a conviction. development. compensations, institutional reforms, “The National Transitional Justice In addition, it recognizes that Ugandans memory, forgiveness and amnesty. Policy is designed to address justice, aspire to live peacefully with citizens of The second is retributive justice, which accountability and reconciliation needs of other countries and in harmony within concerns bringing to book the perpetrators post-conflict Uganda,” says Ajok. their social, cultural, and ethnic diversity. of gross human rights violations hence “The policy provides a holistic The Government has over the years focusing on prosecutions, intervention to achieving lasting peace,” reiterated the need for peace, stability, and The need for a national Transitional she adds. social cohesion as important prerequisites Justice Policy in Uganda was borne Overall, transitional justice strives, for the development of the country. out of the growing clamor for justice, not only to deliver justice to victims of The Transitional Justice Policy accountability and reconciliation in mass atrocities, but also to assist societies implementation therefore sets a base for northern Uganda, according to Minister devastated by conflict to achieve sustainable economic development and inclusion of all Onek. peace and reconciliation. Ugandans in national development. Transitional justice consists of both What does the Transitional Justice Policy judicial and non-judicial measures mean for ordinary Ugandans, especially Role of the Justice, Law and Order implemented in order to redress legacies victims of war? Sector in passing of this policy of human rights abuses, according to Transitional Justice is a range of processes Margaret Ajok, an advisor on Transitional and mechanisms associated with society’s The Justice, Law and Order Sector (JLOS) Justice, at the Justice Law and Order Sector attempt to come to terms with a legacy of Transitional Justice Working Group was (JLOS) Secretariat. large – scale past abuses and human rights established by the government to consider “It includes use of criminal prosecutions, violations in order to ensure accountability, resolutions of the Juba Peace Agreements truth commissions, reparations programs, serve justice, and achieve reconciliation, and develop its implementation and various kinds of institutional reforms says Ajok. mechanisms. or an appropriate combination,” she says. “Various justice mechanisms are It opted for a national Transitional www. jlos. go. ug Special edition on Transitional Justice 11 Transitional Justice Policy

Justice Policy to ensure a coherent and activists, victims and conflict-affected strengthen existing structures to facilitate coordinated government response not communities that Uganda is deeply hurt nation building and reconciliation at all just to the northern Uganda conflict but and must sit down in the judgment of levels. throughout the country. itself,” wrote Oola and Nono. Government provides amnesty in the The group embarked on drafting the According to the duo, Transitional Transitional Justice Act but there is no policy which went through a number Justice Policy is an essential structure by blanket amnesty. Instead the Government of back and forth discussions with key the Government to address issues of past encourages those amnestied to participate stakeholders resulting in over ten different human rights violations in order to promote in truth seeking and traditional justice drafts documented along the way. Justice, accountability, reconciliation as processes. “While there was huge interest at well as sustainable peace. Also established and implemented is technical levels within the relevant line “The policy is designed to provide the short term reparation programmes for ministries on the Policy, at the Political level holistic interventions to achieve lasting victims of conflict. the Policy received mixed reactions.” peace in Uganda, a country with a dark The National Transitional Policy is “For a very long time, the Policy was conflict past. Various justice mechanisms aligned to most international, continental, scheduled in the Cabinet agenda but kept are proposed in this policy and this makes and regional dispensations including being pushed backwards until it was no it a great deal for victims and survivors of among them the UN Charter of 1945, and longer talked about. It was, therefore, a big war as well as societies,” they say. the Universal Declaration of Human Rights surprise when it was announced that the of 1948 Article 8 which provides for rights to Cabinet has finally adopted the Policy,” Implementation, action plan, public an effective remedy by competent national wrote Stephen Oola the Director of Amani awareness and legislation tribunals for acts violating fundamental Institute Uganda and Francis Nono, the human rights granted by the Constitution. Center Manager at National Memory and To ensure the Transitional Justice system The National Transitional Policy is also Peace Documentation Center-Refugee Law works just like the formal justice system, contributing towards the achievement Project, in the New Vision. the Government has ensured victims and of Sustainable Development Goal (SDG) “There is no doubt that the Cabinet’s witnesses are protected and participate in 16, which aims to promote peaceful adoption of the Transitional Justice Policy its proceedings, according to the Justice, and inclusive societies for sustainable however late, is a welcome development. Law and Order Sector. development, provide access to justice for First and foremost, it’s an acknowledgment This is in addition to removing barriers all and build effective, accountable and that victims of the myriad conflicts in to accessing justice especially for vulnerable inclusive institutions at all levels. JLOS Uganda, past and ongoing, deserve justice.” victims. “Second, it provides a basis for the Also, the Government recognized Jacky Achan is a reporter with The New Vision. pursuit of the much-needed justice, traditional justice as a tool for conflict This article was published in The New Vision accountability, healing and reconciliation resolution and put in place safeguard on November 13, 2020 as a part of a special in the country. Third, it demonstrates that to protect the rights of parties that seek supplement on the Transitional Justice process the government is willing and committed redress. in Uganda. to pursuing transitional justice measures.” Furthermore the Government will “Finally, it answers the call of the many enact the Transitional Justice act that will

LRA war memorial in Northern Uganda

12 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Policy On the Transitional Justice Frontline

By Ismene Nicole Zarifis

My time serving as International Technical Advisor on Transitional Justice to the Justice Law and Order Sector in 2011-2012 is marked by several memorable moments, both personal and professional. Professionally, I can sum up my experience by highlighting the most rewarding, the most memorable and the most significant moments during my time with JLOS.

Most memorable: ed communities on their expectations for Uganda. I thank the JLOS Secretariat and 012 was the year when we mo- reparations. The NTJP is not only the first member institutions in particular the bilized as the TJWG to overturn policy of its kind on the continent, but also TJWG members and its former Chair, the blanket amnesty clause in the novel in that it calls for a national repara- Justice Lawrence Gidudu, for the trust and Amnesty Act of 2000. During its tions program to deliver comprehensive confidence placed in me to support the 2consideration for renewal, the TJWG put reparations to victims. process. This was an incredibly humbling forth a proposal to abandon the blanket and enriching experience. It led to a amnesty clause due to its conflicting nature Most rewarding: comprehensive policy, which despiteits with Uganda’s national and international One of the most rewarding experiences its flaws, is evidence of a willingness obligations to honor the right to justice and as a JLOS advisor was the role I played in to confront the past and chart a way a remedy for victims of war crimes. The is- connecting the policy process to victims forward towards truth, justice and national sue of amnesty has been highly contested and victims’ rights groups. This was an reconciliation in the years to come. JLOS and controversial for years with arguments essential ingredient to developing a vic- both for and against it, and reflective of the tims-centered policy, which is responsive Ismene Nicole Zarifis is a former International complex nature of the conflict which was to the needs, expectations and priorities Technical Advisor for Transitional Justice at characterized by a high number of child of victims and war-affected communities. the JLOS Secretariat, Ministry of Justice and combatants who were forcibly recruited to As an advisor, I participated in numerous Constitutional Affairs. take up arms and later coerced to commit consultative meetings organized by vic- atrocities. Amnesty in Uganda was seen tims and victims groups where I had the to favor this category of perpetrators and opportunity to hear first hand, the direct used to encourage captives to return, dis- and long-lasting effects of the violence on arm and reintegrate into society. This issue local communities, including women, chil- has since been the focus of an ACHPR de- dren and the particular consequences on cision in 2018 where it addressed the blan- IDP populations. In turn, as JLOS, we ket amnesty clause and its contravention welcomed the written submissions of of Uganda’s international human rights victims and victim groups on their obligations (Thomas Kwoyelo v Uganda). expectations for victim participa- It is now up to JLOS institutions to clarify tion and reparations in the policy and confirm what category of individuals process and the various transi- would be subject to prosecution and which tional justice mechanisms. This individuals would be subject to amnesty greatly enriched the process and and alternative forms of justice and rec- final product. It was also one of onciliation - either through truth-telling the first times that victims were mechanisms or traditional justice avenues. directly consulted in a policy- making process. Most significant: Finally, at a personal level, In 2012, the discourse on the right to rem- my time at JLOS was wholly edy and reparations had not yet featured as enriching and memorable. I can a central issue in the NTJP process. As the only be grateful for the unique NTJP was intended to be a victim-centered privilege of being a part of the instrument, and as a victims’ rights advo- transitional justice process in cate myself, we as the JLOS Secretariat, Uganda and becoming a placed the issue of reparations at the front member of the extended and center of the process. The right to rem- JLOS family. In 2011, edy became one of the key pillars in the pol- I was embraced by icy, alongside formal justice, truth telling the TJWG and JLOS and traditional justice. The year 2012 was member institutions therefore marked by several initiatives to and entrusted with include the issue of reparations in the poli- an important task of cy, namely a JLOS-led national reparations providing guidance conference followed by nationwide consul- on the formulation tations with victims groups and war-affect- of the NTJP for

Ismene Nicole Zarifis www. jlos. go. ug Special edition on Transitional Justice 13 Transitional Justice Policy

Transitional Justice Law in Offing

Nathan Twinomugisha

By Nathan Twinomugisha

he journey to the comprising officials from National Transitional the Ministry of Internal Justice Law has been Affairs and the Ministry of a marathon rather Justice and Constitutional Tthan a sprint. The effort Affairs. This team has come to come up with that law up with the draft National started way back more than Transitional Justice Bill. 6 years ago. However, the A country-wide Technical Working Group’s consultation and determination to have this dissemination of the law go before Parliament has National Transitional Justice been relentless. Policy will commence very The passing of the soon. National Transitional Justice We are all looking forward Policy by Cabinet on June to the day the National 17, 2019, was the first major Transitional Bill will be boost to the drafting of the enacted into Law. JLOS Transitional Justice legal framework. Nathan Twinomugisha is A technical team to fast- a Chief Legal Advisor at track the operationalization the Amnesty Commission, of this policy was formed Ministry of Internal Affairs.

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Passing of the Transitional Justice Policy: Stakeholders Speak Out

The ongoing suffering and pain After a long wait experienced by victims as a result by the victims and of the crimes committed during survivors of the war the war has never been really in Uganda, there is addressed. The Government of at least some light at Uganda must now implement the the end of the tunnel. measures of the Transitional Justice We hope that after Policy as effectively and as quickly the approval of the as possible, and in compliance Transitional Justice with international standards. The Policy, the process drafting and passage of the Bill will move quickly to that will create the framework for address the urgent its implementation needs to be issues that affect the expedited, as survivors can’t wait victims, particularly much longer their reparations. Lorraine Smith van Lin, Post-Conflict Hon. Lady Justice Elizabeth Justice Adviser at REDRESS Ibanda Nahamya (Rtd), Executive Director of ESA

It is good that finally the Government of Uganda has shown commitment I’m glad that it has been approved. I at the most critical time hope it contains all that will benefit when victims have been us. This is a big achievement for seeking mechanisms for victims and survivors; we have accountability all along been waiting for the Transitional Justice Policy

Chris Ongom, Executive Grace Acan, a war survivor who Director of UVF suffered human rights violations at the hands of rebel group Lord’s Resistance Army (LRA)

SOURCE: REDRESS.ORG www. jlos. go. ug Special edition on Transitional Justice 15 Transitional Justice Report Card

Chief Justice Alfonse Chigamoy Owiny - Dollo (left) and the Principal Judge Justice Dr. Flavian Zeija at the launch of the 2019 / 2020 JLOS Annual Report during the 25th Annual JLOS Review on 26th November 2020

Transitional Justice Report Card (2019 - 2020)

The NTJP was finally approved on June 17, 2019. The Cabinet directed the line Ministries to ensure wide dissemination and publication of the NTJ Policy, the fast-tracking of the legislation on NTJ Policy, and the management of the transitional period between the implementation of the Policy and the enactment of the relevant laws on Transitional Justice. JLOS consequently developed a road map for the implementation of the directives and the progress so far has been encouraging despite a few challenges.

n the reporting period, a Policy dissem- In the reporting period, the Amnesty shows were conducted (4 radio talk shows ination plan has been developed, cop- Commission facilitated demobilisation of in Arua DRT on Radio Pacis and three ies of the Policy have been printed, soft reporters,12 reintegration and resettlement radio talk shows in Central DRT in Mayuge copies of the Policy have been upload- of reporters, dialogue and reconciliatory and Mukono on Radio Safari FM. One doc- Ied on the JLOS website, a drafting team has meetings with communities and training of umentary on Amnesty was aired out on been constituted and is fast tracking the de- reporters in life skills to contribute to peace UBC Television. velopment of the Transitional Justice Bill. building. These campaigns are important because With regards to managing the transitional The Commission contributed to the pre- they encourage reporters/ex - combatants period between the enactment of relevant vention of conflict and reduction of armed to surrender to the Government and also laws and implementation of the Policy, the insurgency. It demobilized 176 reporters come out for documentation without fear of Amnesty Act was extended for two more (Bunyangabu-30, Kasese-20, Kiryandon- persecution. These campaigns also helped years and funding for Transitional justice go-124, Kiboga-1, Kyankwanzi-1). In addi- to emphasize the importance of peace and is being maintained in the Sector annual tion, the Commission made 4 contacts with peaceful coexistence between the report- work plans and the Budget Framework Pa- Allied Defence Forces (ADF) rebels in a bid ers and host communities. The Amnesty per (BFP) of the line Ministries and support to convince them to abandon insurgency Commission also provided 402 reporters to non JLOS institutions to embrace plan- activities and embrace amnesty as a way with reinsertion support, rehabilitated 260 ning for Transitional Justice. of promoting peace and contributing to the reporters and victims, reunited 42 report- economic development of the country. All ers with their families and next of Kin in Demobilisation, resettlement, the demobilised reporters were document- Gulu, Kitgum, Kiboga, Kyankwanzi and reintegration, and rehabilitation: ed and provided with Amnesty certificates. Nwoya district and resettled 296 reporters The Amnesty Commission also conducted in their communities. The Amnesty Com- As part of the Sector’s contribution to five meetings on Amnesty Law and- pro mission reintegrated 3,366 reporters and post conflict justice, resources were provid- cess held in three DRTs; West Nile, (DRT victims through training them in various ed to the Amnesty Commission to support Arua), Bwodha landing site (DRT Central) life skills including environmental man- the demobilisation, reintegration and reha- and DRT Mbale at Namutumba. Prison agement, tree planting and agriculture. The bilitation of ex-combatants, victims of war visits in Tororo, Mbale, Soroti, Kasese, Fort trained beneficiaries were provided with and the communities. Portal and Rubirizi and seven radio talk improved tree seedlings, fruit seedlings as

16 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Report Card a start up from the training. Rapid Response (JRR) - Geneva to offer undertaken included engagements with The Amnesty Commission carried out technical support in the prosecution of the local leaders, community meetings and 13 dialogue and reconciliation meetings Kwoyelo case. This organization runs a witness preparations and verifications, and between reporters and communities held global roster of experts in various aspects of visiting scenes of atrocities. The exercises in Arua DRT, Central DRT, Mbale Munic- International law. So far, JRR has provided greatly contributed to preparation of the ipal Council and Kitgum Municipal Coun- support in the areas of witness protection, communities, especially witnesses, for the cil. Land issues between reporters and legal research-international law, psycho – trial to proceed in Gulu. communities were resolved by 60% and social support for traumatised witnesses. In Western Uganda, ODPP officials others deferred to relevant authorities. These experts will continue providing tech- undertook two outreach sessions in August Child mothers too were accepted back in nical support during the trial. and December 2019 in several districts their families and communities after the However, there is need for more resource which were affected by the ADF insurgen- reconciliation meetings. allocation to support an independent pros- cy. These included Kasese, Amnesty Commission activities were ecution to be able to adequately source Kabarole, Bundibugyo, Kyenjojo, Kam- monitored to check on the progress of experts to support the trial especially with wenge, and Ntoroko. The exercises as well implementation of all reintegration activ- regards to witness protection, psycho targeted communities that suffered direct ities and to ascertain whether there was -social support and legal research. ADF attacks and the activities included any impact created. It was found out that Uganda v Ali Kabambwe Munakenya & engagements with local officials and com- the training of reporters and victims has Others: The prosecution of the case community meetings, and visiting scenes of enabled them to settle peacefully in the menced in the FY 2018/19 and was con- atrocities. The outreach sessions were car- communities. However, it was also noted tinued in the FY 2019/20. The pre-trial was ried out jointly with police for purposes of that the beneficiaries needed more finan- completed successfully and charges were follow up of investigations. cial and physical support for development. confirmed. The case now awaits cause Opportunity was taken to inform and There is a need for beneficiaries to docu- listing for full trial. The ODPP also carried update the communities on the progress of ment success stories to ease the evaluation out witness preparation and verification in various cases handled by the department of the reintegration programmes and also Uganda v Ali Kabambwe and Uganda v as well as take feedback from community attract additional support from stakehold- Charles Wesley Mumbere both in eastern members. The activities were successful ers. Uganda and western Uganda Districts of by large. The respective detailed activity Kasese, Kyenjojo, Bundibugyo where sev- reports were submitted separately. This Prosecution of war crimes cases: enty-five (75) key witnesses were verified activity was combined with mop up inves- As part of its contribution to enhancing and prepared for trial. tigations to close any evidence gaps. One access to justice for post conflict crimes; outreach activity is underway in western ODPP prosecuted two (02) war crimes Outreach programs to victims of Uganda and will make the total 7 activi- cases during the reporting period, name- crimes in western, eastern and ties for the year. It was delayed due to the ly the case of Uganda v Thomas Kwoyelo interruption of COVID 19 pandemic and (an ex-Lord’s Resistance Army combatant) northern Uganda: delayed release of funds. and the case of Uganda v Ali Kabambwe During the reporting period, the depart- Through our various channels, victims Munakenya & Others. ment undertook 6 outreach sessions, 3 each of crime and witnesses are free to engage Uganda v Thomas Kwoyelo: The prosecu- in Northern and Western Uganda respec- with prosecutors’ prior to during and after tion of the case continued in Gulu. During tively to address the concerns and issues trial of their cases. This helps to build confi- the year, three trial sessions were held and arising in those communities relating to dence of victims and witnesses in the pros- 20 prosecution witnesses have so far testi- cases being handled by the department. ecution service. fied. Prosecution adopted innovations such The objectives of undertaking outreach Key issues identified during the out- as engagement of expert witness and estab- activities were to complete the inquiries reach program sessions included commu- lishment of a witness hostel to enhance wit- in the case of Uganda v. Thomas Kwoye- nity ignorance about their responsibilities ness support and protection. It is expected lo and those in Western Uganda were in in relation to the prosecution of interna- that hearing of the case will be concluded in respect to the Uganda V. Jamil Mukulu tional crimes, especially with regards to the next Financial Year 2020/21. case; Uganda v Ali Kabambwe Munaken- securing exhibits like mass graves that The prosecution team engaged the ser- ya & Others; Uganda v Charles Wesley are used for evidence by the prosecution. vices of witness protection officers in Gulu, Mumbere, interface and interact with the The implementation of Sector activities on Lamogi and Pabbo to monitor, empower key witnesses and victims to ascertain their Transitional Justice are on track in compar- and protect witnesses before, during and availability and willingness to testify in ison to past years. A Sector trend analysis after trial. A total of 7 police officers have court; establish the concerns of the victims on transitional justice reveals an increase in been assigned as war crimes witness pro- and witnesses and find ways of addressing resource allocation and institutional inter- tection officers in the Kwoyelo case. These them in preparation for court; and mobilize est in implementation of activities which officers are given modest facilitation and and update the victims, witnesses, leaders is a plus for the affected communities. In register books to execute their work. The and other stakeholders in the region on the addition, as anticipated, the approval of prosecution team also engaged the ser- status of investigations and the case gener- the National Transitional Justice Policy has vices of an expert witness to provide a ally. This will also create awareness in the renewed momentum for TJ within the Sec- background context to the case and to pre- community. tor and beyond. pare an addendum to his report covering In Northern Uganda, the ODPP under- Capacity building for prosecutors, SGBV. This means, this witness would be took three (03) outreach sessions in the judges, defence counsel and other parties called to testify. Key to this trial is that, it is districts of Gulu and Amuru respectively involved in the international crimes cas- prosecution led, witnesses including expert in preparation for the hearing of Ugan- es has been affected by the COVID - 19 witnesses testifying as scheduled, witness da versus Thomas Kwoyelo before the Pandemic after a training program had protection measures have been established International Crimes Division of the High been planned by the Sector. Relatedly, the and gender-based crimes have been con- Court were conducted in Acholi sub-region international conference on memory and sidered. where the focus of the activities was the memorialisation planned to be conducted In order to boost the capacity of the pros- LRA atrocities. Victims and witnesses were by MoJCA has been affected. JLOS ecutors and quality of the case, the ODPP briefed on the progress of the case and pre- has signed a two-year MoU with Justice pared for court proceedings. The activities www. jlos. go. ug Special edition on Transitional Justice 17 Transitional Justice Report Card Taking Stock of Successes, Achievements

By Margaret Ajok

That Uganda has had a turbulent past is an undisputed fact. Dictatorial rule in the 1970s, sporadic armed rebellions of the early and mid-1980s, 1990s and 2000 onwards in the Northern, Eastern, South Western (Rwenzori sub-region) and West Nile Sub Regions; are some of the eminent examples. Consequently, communities in these regions have been grossly impacted by the various atrocities with a myriad of effects ranging from loss of life, incapacitation through injury, trauma (including post traumatic stress disorder), poverty, stigma, disease, loss of identity and rejection (especially in the case of children born of war) plus continued deprivation due to the prevailing challenges.

hese situations brought December 1962 and January into perspective the 1986, which was established by need for an end to President Yoweri K. Museveni. the armed rebellions. The Commission inquired into TAs a result, a combination of violations of human rights efforts ranging from peace since independence. The report negotiations, military counter of the Commission indicated offensives, legal action and widespread violations of amnesty were put in place by human rights and abuse the Government of Uganda. of the law. One of the key recommendations of the Milestones in transitional Commission was the revision justice in uganda of the law on detentions without trial. Inquiry into the Violation of Human Rights; The 1995 Securing Peace: Amnesty Constitution of the Republic of and its challenges Uganda The promulgation of the After prolonged calls and 1995 Constitution of the negotiations from various Republic of Uganda was sections of population; one of the most remarkable especially religious, cultural, Transitional Justice political and local leaders in activities that Uganda the region most affected by the has undertaken. rebel activities of the Lord’s It followed the Resistance Army (LRA), an Commission of Amnesty law was enacted Inquiry into in 2000. The Amnesty Act the violation provided for pardon for all of Human Ugandans engaged in acts of rights war or armed rebellion against between the Government of Uganda since January 1986. Its main objective was ending hostilities in the affected areas. The Law was particularly an incentive for the boys, girls, men and women who had been forcibly abducted and conscripted as militants in the LRA, Allied Democratic Forces (ADF) and other active rebel forces at the time. Cultural and religious leaders in the

Margaret Ajok 18 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Report Card

Northern region particularly appealed evidence that the traditional justice for the children to be released and mechanisms had the potential to to “come back home” as the slogan address the effects of armed conflict, was. As many as 28,000 reporters/ there has been limited appreciation of ex-combatants have received amnesty existing alternative justice mechanisms certificates and have been resettled as a tool for addressing conflict and and re-integrated into the community. post-conflict situations. There are also Indeed, the contribution of the concerns that if the effects of conflict amnesty law to the pacification of the among the affected communities is country cannot be denied. However, left unaddressed, it could constitute a Some of the initiators of the rebellions potential threat for national stability, in Northern and South Western security and sustainable development. Uganda are yet to make use of the The National Transitional Justice privilege and thus remain on the run Policy therefore provides a holistic or have been captured. intervention for achieving justice and peace in a country whose history Justice: Formal Criminal has been characterized by political accountability instability. The Policy provides a framework Realizing the need for criminal Hon. William Byaruhanga to address the gaps within the formal accountability for gross crimes Attorney General justice system, the amnesty process, committed against innocent civilians, reparations, traditional justice and the Government of Uganda in nation-building and reconciliation, December 2003 referred the case and provides a framework to guide the of LRA Commander Joseph Kony implementation of Transitional Justice. and four others including Dominic Ongwen to the International Criminal It is expected that the Court (ICC). This decision was greeted implementation of the Policy with criticism from some skeptics who thought perhaps that the referral of the would influence the following case to the ICC was against the spirit outcomes: of the LRA – GoU Peace Agreements. However, time revealed that even with Restoration of trust between the five Juba Agreements in place, Government and communities; the LRA had failed to turn up for the Sustainable peace, reconciliation signing of the final peace agreement. and nation building Enhanced victim participation and National prosecutions witness’s protection The Agreement on Accountability Traditional Justice Mechanisms and Reconciliation (aka Agenda Item formalized No.3) and its Annexure provided for Hon. Obiga Kania Socio-economic empowerment of the establishment of a Special Division State Minister for Internal Affairs war victims and communities of the High Court to try individuals Rehabilitation and reintegration of alleged to have committed serious affected persons enhanced crimes. The International Crimes Address gaps in the Amnesty Division was established in 2008 process. as a result. To date, it is handling In conclusion, I would like to state cases arising from the ADF and LRA It is true that that it is impressive to witness the insurgencies. commitment of the Government of peace and Uganda to a fragile process due to The National Transitional Justice stability are inadequate resources, skepticism Policy: Why a legal framework? and politicization; while focusing necessary on the overall goal of addressing the Despite the various attempts to precursors to concerns of the helpless victims and address issues of peace, stability, communities faced with vulnerability and accountability, there has been no development. as a result of armed conflict. Indeed, overarching Government policy to Similarly, justice, it is true that peace and stability are deal with conflict and post-conflict necessary precursors to development. situations in Uganda. The lack of a accountability Similarly, justice, accountability and holistic and coherent Government and reconciliation reconciliation are crucial drivers of Policy and coupled with the inadequate peace and stability. JLOS legal framework to deal with crimes are crucial drivers or wrongs during and post-conflict of peace and Margaret Ajok is an Advocate of the High situations, had culminated into Court and is the National Advisor on dissatisfaction with Government’s stability Transitional Justice at the Justice Law recovery and resettlement programs, and Order Sector Secretariat, Ministry of as well as justice systems especially for Justice and Constitutional Affairs. the victims and communities affected by conflict. In addition, whereas there was www. jlos. go. ug Special edition on Transitional Justice 19 Transitional Justice Mechanisms

Mr. Kanyamunyu during a court appearance

Mato-oput: Should the Judiciary Blend in Traditional Justice?

BY ANTHONY WESAKA

The Judiciary and the Office of the Director of Public Prosecutions (ODPP) are currently facing what seems to be a strange development in one of its criminal cases. One of the suspects, Matthew Kanyamunyu, a Kampala businessman, who is accused of murdering a child rights activist, Kenneth Akena, has sought the halting of his trial.

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But since the indigenous transitional that ran contrary to the national goals of justice system is alien to the criminal peace and unity. The mato-oput will help justice system, DPP Jane Frances Abodo, in healing those divisions and the case will wrote back to Kanyamunyu’s lawyers, serve as a reference in future disputes,” he stating that the formal criminal trial would added. have to continue. Likewise, Mr David Okello, a mediator “Our position is that whereas the and coordinator of the traditional proposal for plea bargain is welcome, the reconciliation process on behalf of Akena’s trial process shall continue as scheduled family, put in his affidavit to support until your client opts for the said plea Kanyamunyu’s enrollment on mato oput. bargain, in which case the normal process “The applicant (Kanyamunyu), has as provided under the Judicature (Plea undergone the most important and binding Bargain) Rules, 2016 shall apply,” DPP phase but is yet to undergo the crowning Abodo wrote. ceremony of drinking the bitter herb Justice Mubiru has since delivered and sharing first meal with the victim’s his ruling in which he declined to halt family as the symbolic seal of principled Kanyamunyu’s murder trial. reconciliation between the two families and The judge reasoned that the accused peoples,” Mr Okello stated. person was instead using the same “It’s of utmost importance that both informal processes as a scapegoat to families complete that process as a means of prolong his trial contrary to demands of restoring harmony between the applicant’s the speedy public criminal trial by the family, clan and people with the victim’s Constitution. family, clan and people. Continuation of “The usual purpose of delaying tactics the trial will greatly hinder the process of is to postpone the resolution of the case traditional reconciliation,” he added or to confuse the court about the merits of The aforementioned back and forth the case, or trigger a reason for its eventual letters coupled with a deleterious court stay. Because delaying tactics are contrary ruling, would be uncalled for if the formal to one of the goals of a trial (an expeditious court system blended with the transitional resolution of the case), they tend to be indigenous system to concurrently resolve perceived negatively. By prolonging the disputes. process, they increase costs and expenses Given the above developments, and often the anxiety of all participants,” advocates for transitional justice are Justice Mubiru ruled on November 9. demanding that the policy be fast-tracked. The judge continued: “In the circumstances, the court is not satisfied What transitional justice means that the applicant’s (Kanyamunyu’s) Transitional justice consists of judicial intentions to plea bargain upon conclusion and non-judicial measures implemented of the ongoing process of mato-oput, in order to redress legacies of human rights which is speculatively expected to be abuses. concluded before end of December, 2020 Such measures include criminal in light of the inevitable indeterminate prosecutions, truth commissions, delay that will be occasioned by the reparations programs, and various kinds of adjournment or suspension sought, is institutional reforms. sufficient to outweigh the constitutional The need for a transitional justice policy his is to enable him to first pursue right of the accused to an expeditious trial. is premised on Uganda’s violent past that and conclude the Acholi traditional The application is accordingly dismissed.” is characterized by several civil and armed justice process dubbed mato-oput This means that Kanyamunyu will have conflicts. and later enroll for plea bargain to continue with his criminal trial. They include; Joseph Kony’s Lord’s Tbefore the formal court system. Prior to Justice Mubiru’s ruling, two Resistance Army, 1966 Buganda crisis, “Before this trial began, our client people including the Kwaro Acholi cultural NRA guerilla war, among other conflicts. had embarked on a journey of truth and Prime Minister, Mr Olaa Ambrose, swore To that effect, there was a need for the conciliation with the family of the victim affidavits to support Kanyamunyu’s bid to government to come up with a national in accordance with the cultural norms of first pursue the traditional justice process. transitional justice policy as a way of the Acholi people from whom the victim The Prime Minister explained that the acknowledging these conflicts and hailed. This journey, an elaborate Acholi Acholi traditional justice system does not resolving them. traditional process of truth, healing and replace court processes. A 2008 study on transitional justice reconciliation- culminates in a ritual known He added that the informal justice in Northern Uganda and Eastern as mato-oput,” Kanyamunyu’s lawyers system instead, would help in reconciling Uganda and some parts of West Nile, wrote to the DPP on October 16. Acholi and Ankole people who had been highlighted the justice needs of the affected Adding: “The purpose of this letter is divided along tribal lines following the communities including the need for truth to request that our client (Kanyamunyu) murder of Akena by Kanyamunyu. telling, traditional justice, reparation and is accepted into the plea bargain program “The traditional process does not replace conditional amnesties. once the process of mato-oput has been the criminal proceedings in court but is The national transitional justice policy concluded. Therefore, we would be most only to handle its reconciliatory aspects addresses matters of legal and institutional obliged if this matter is removed from the and thereby enhance the court’s ability to framework for investigators, prosecutors, cause-list of trials beginning 20th October dispense justice,” the prime minister stated trial within the formal justice system, 2020 before Hon. Justice Mubiru Stephen to in his affidavit. reparations and alternative justice system allow for the completion of mato-oput and “Media sensationalisation surrounding like mato-oput. plea bargaining.” the case, provoked sentiments of tribalism www. jlos. go. ug Special edition on Transitional Justice 21 Transitional Justice Mechanisms

Chief Justice Alfonse Owiny-Dollo Chief Justice Speaks out Chief Justice Alfonse Owiny-Dollo, in a recent interview with Nation Media Group-Uganda, emphasized the need to blend informal justice with the formal Mr. Kanyamunyu kneels before Acholi elders justice system. “Doing informal justice alone misses something and doing formal justice alone, also misses something. There intervention to achieving lasting peace in our commitment to that and also setting the has to be a blend of both depending on the a country whose history has until recently pace in the great lakes region, which has circumstances.” CJ Dollo said. been marred by political instability. been for years a death bed,” Ms Ajok said. He explained that the beauty of informal Going continental, Member States She added: “Our neighbors rely on us for justice is that you may achieve something implementing the policy would be helped that guidance and South Sudan is currently that you would have literally not achieved on how to deal not only with legacies of pursuing that. The African Union in its in the formal mechanism. conflicts and human rights violations, but implementation framework intends to “The African justice system does both also governance deficits and developmental draw a pool of experts on transitional justice formal and informal justice. You are held challenges. from member States and I am sure Uganda to account and you may achieve something Transitional justice is not new in will contribute to that pool. Generally, for that may not be achieved even if you kept Africa as it has been in the front burner me it’s a renewed opportunity for regional somebody in Luzira,” the head of the of the continent’s agenda to deal with cooperation in line with the AU’s agenda Judiciary said. He added: “There is that the challenges of colonialism, apartheid, for peace, stability and development of aspect of compensation and restitution, system repression and civil wars. the continent, which is fragile without a which African justice emphasizes. The Since 1990, transitional justice has been transitional justice framework.” African justice system gives you an implemented in several African States to Likewise, Ms Sarah Kihika Kasande, the opportunity to be useful in society after resolve the legacies of violent conflicts and head of office at the International Center committing a crime.” gross violation of human rights. for Transitional Justice (ICTJ), says, it is a In further advocating for an informal What it means for Uganda to become the good step for Uganda to develop from a justice system, Justice Dollo said that in the first African nation to adopt the policy continental framework. formal justice system, the winner also loses Ms Margaret Ajok, the advisor for “…. However, there is still more work to because if you won a case against someone, Transitional Justice at JLOS Secretariat, says be done in order to pass the policy. We must you will lose that person forever and yet Uganda being the first African country to not prioritise colonial justice processes over the African justice system gives room for adopt a transitional justice policy means our own traditional mechanism because healing. that it is a peace-loving country and it goes a long way to reconciliation, so that this marks a major milestone in the the courts should provide an avenue JLOS’s bid to breathe life into administration of justice. of developing a framework to blend in transitional justice “As you are aware, regional cooperation traditional justice,” Ms Kasande said. is key for member States and this shows About the ongoing Kanyamunyu’s In a bid to bring life to transitional attempt to undergo mato-oput process, justice, about a decade ago, the Justice Ms Kasande explained that Uganda has Law and Order Sector (JLOS), established two parallel justice systems and that he the Transitional Justice Working Group (Kanyamunyu), first commenced his (TJWG) as a special policy-making entity Since 1990, criminal trial before embarking on the to develop a national policy and law for traditional justice system. Uganda. transitional She added that the judge’s decision of The policy is intended to give effect to justice has been declining to allow Kanyamunyu to finish the commitments made in the agreement the traditional justice process should on accountability and reconciliation, which implemented in be understood since he commenced the calls for the promotion of formal and several African states traditional justice process later before informal accountability mechanisms to to resolve the legacies asking the courts to blend in the informal address the crimes committed during the processes in resolving cases going twenty-year long conflict. of violent conflicts forward. JLOS It’s also an overreaching framework and gross violation of of the Government designed to address human rights Anthony Wesaka is a reporter for the Daily justice, accountability and reconciliation Monitor and was a recipient of the JLOS Media needs of post-conflict Uganda. Reporting Award in 2016 / Email: awesaka@ Further, the policy provides a holistic ug.nationmedia.com

22 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Mechanisms

By Baluku Moses

Moses Baluku (4th from left) with colleagues at the memorial monument which is at the entrance of St. John’s Seminary in Kiburara, Kasese District The Cries of a Former Abductee One of the victims of rebel abduction speaks out on their expectations from Transitional Justice proceedings, the community and other stakeholders

By Moses Baluku rules that broke down the barriers between the future - a move that will create sustain- the different cultures. Everyone had to live able peace and justice in Uganda and Afri- ellow countrymen and women, I within the group’s rules; failure to adhere ca at large. The Foundation of Rwenzori wish to thank my fellow victims of would lead to death. Abductees’ and Returnees’ Organization war for standing strong amidst the (FORARO) addresses the harmful effects many challenges they have gone Hope for victims of conflict of conflict, empowering the victims and Fthrough. And to all of you who have dedi- One of the best practices for victims’ par- survivors to manage conflict and prevent cated your life to end conflict in our coun- ticipation in traditional justice proceedings future violence, as well as promoting sol- try, I salute you with honor! is to learn to respect other cultures. Being idarity for healing, stability and develop- Before we were abducted by the rebels, open-minded to learn from other people’s ment. we were innocent young boys and girls, cultures is very important. This allows us to Many thanks to you, my fellow victims healthy and full of hope. We were good cit- “cherish the freedom accorded to the indi- of war, who have been peaceful since you izens who believed in our country’s motto, vidual persons” in their respective cultures returned from captivity. In spite of the “For God and my country.” in our communities. Freedom makes one many challenges we have met, we have Then the rebels came; they forceful- more responsible for his/her actions. It’s a not participated in criminal activity, and ly uprooted us from our families. We necessary ingredient for growth towards this has given us an opportunity to begin could not avoid taking on new behavior, peace hence maturity that makes one more enjoying the freedom we once had as which we did not have before. Everything peaceful with self-control. Mutually, the innocent sons and daughters in our families changed; we appeared very different to the time for us to stand up in solidarity and before being abducted. Thank you for being local communities where we came from. protect the freedom accorded to individu- peaceful. I am strongly convinced that with They called us ‘rebels’ since we were with als in our country is now. More so, engage- the TJ policy, all victims of war shall once notorious rebel groups. In truth, we are ment with Government stakeholders again regain their freedom to live in peace victims too and are still going through the responsible for the implementation of the and harmony with one another. JLOS terrible trauma. Most of us are struggling TJ Policy as well as working towards the with it. We are growing up amidst these need to have a CSO advocacy plan towards Moses Baluku is an Ex-ADF child soldier different forms of torture. However, our the implementation of the Policy. (he was abducted from St. John’s Seminary suffering cannot crush us completely. As victims of war, we call upon everyone in Kasese). He is the founder of Foundation The groups we were forced to join had to continue with initiatives like the Transi- of Rwenzori Abductees and Returnees people from different cultures. The -lead tional Justice processes, whose aim is to Organization (FORARO). ers of these rebel groups put in place strict prevent, heal and provide a new hope for www. jlos. go. ug Special edition on Transitional Justice 23 Transitional Justice Mechanisms Value of a Specialized Transitional Justice Framework

By Ismene Nicole Zarifis

Achieving truth, justice, reparations and reconciliation in the aftermath of mass violations is no simple task. Post-conflict societies have grappled with achieving these goals in whole or in part for decades, with each country choosing its own path and in many cases without a clearly articulated policy in place to guide the process. The result has been a piecemeal approach that fails to articulate a comprehensive policy with overarching principles to drive the transition. It has led to frustrated processes whereby victims and war-affected communities may not have even been aware of the decision-making at the top, let alone consulted on their views and expectations for appropriate avenues to deliver truth, justice and reparations for the violations they suffered.

cursory scan of some of the of victims through a more accessible victims however was left unresolved. most widely documented forum where the many hundreds of The need for reconciliation, while processes in Africa reveals perpetrators would face a traditional critical to sustaining peace and mending several initiatives to address justice mechanism aiming to achieve the fractured society, is still not clearly Aaccountability for mass violations, justice and reconciliation at the local articulated in the context of Rwanda. each with varying degrees of success. level. Whereas several initiatives were In Rwanda, for example, criminal While criminal trials were going on at adopted, not all were implemented in a accountability was prioritized through the ICTR, memorialization predominated coordinated fashion. the establishment of an internationally in the country. A trust fund for victims Rwanda is not alone in as far as it backed tribunal meant to prosecute was also set up to dispense reparations adopted several transitional justice war criminals bearing the greatest for victims of the genocide, this was strategies and mechanisms making responsibility; this was coupled with in the form of education, housing, strides towards meeting its national alternative justice mechanisms, the rehabilitation and livelihood support. objectives, however this was not reflected gaccaca, to address the grievances The issue of monetary compensation to in one coherent, comprehensive policy

Screening session in Uganda at the beginning of the Ongwen trial in 2016 by the International Criminal Court

24 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Mechanisms framework that articulated the country’s justice mechanisms. Importantly, they articulating the understanding and vision for achieving truth, justice and emphasize principles of complementarity position by the State on its priorities for reparations in the aftermath of the and comprehensiveness, which call truth, justice, reparations, reconciliation genocide. for the establishment of one or more and institutional reform. In contrast, the conflict in Sierra Leone mechanisms to meet the goals of truth, What can be gleaned from the drew the attention of the international justice, reparations and reconciliation in experiences highlighted here and the community, which supported the a multi-layered, war affected society. potential role of a specialized policy on establishment of the Special Court of Of late, the African Union adopted a transitional justice? A comprehensive Sierra Leone, set up to try war criminals, Transitional Justice Policy that espouses policy allows the State to articulate a while at the same time adopting a truth many of the same principles. This is common position on how it intends commission that would focus on truth reflected in one consolidated text that to address the aftermath of mass telling by the masses, mainly the victims speaks to principles and mechanisms violations and injustices during conflict. and child combatants. One of the biggest It may be drafted with a foundation in challenges in Sierra Leone was making international and national obligations of a distinction for the public between the the state and set out a priority for formal role of the Special Court and the truth justice (prosecutions), alternative justice commission. As many thought there was (truth telling), a combination of the a connection between the two, there was Uganda adopted two, or how the State intends to deliver generalized reluctance to come forward its National reparations to victims. The policy is to participate in the truth commission strengthened and validated through the hearings. The issue around how child Transitional Justice inclusion of overarching principles such combatants would be handled by these Policy in as transparency, non-discrimination, mechanisms was another thorny issue inclusion, victim-centeredness, best that needed clarification given the lack interest of the child, complementarity of public awareness of the distinct 2019 and comprehensiveness. mandates and structures of these , making it the Most importantly, a number of overlapping institutions. contentious issues can be settled with While these examples are distinct first African Union a specialized policy making for a based on their individual dynamics, Member State to smoother transition, for example the the nature of their conflicts, the actors issue of amnesty can be addressed (if involved and the peace processes that adopt a specialized and when it should be applied); criminal paved the way for a transition, they policy on accountability of child combatants can share at least one characteristic. They be clarified (how will child combatants were largely led by political actors, transitional justice responsible for serious violations leaders and/or with/by the involvement be handled and through which of the international community and mechanism); the question of whether not necessarily governed by certain child combatants would be treated as overarching principles to achieve peace victims, benefitting from reparations or and reconciliation, neither were they otherwise; how the process will cater the product of widespread national applicable to the African context and for women and children, in particular consultations with, or endorsement by intended to guide AU member states those who have been severely affected victims and war affected communities as they embark on a transitional justice by sexual violence, and many more. informing on the justice options or the process. The policy is comprehensive Equally important, a policy that nature and structure of the mechanisms in its treatment of transitional justice provides for one or more transitional to address the violations. Developing and serves as an important blueprint justice mechanisms can provide an adequate, effective and responsive for designing a comprehensive and guidance on how these mechanisms will justice response after conflict is thus complementary transitional justice work together- in complementarity or highly dependent on the process process. The AUTJP is the first of its sequentially and what, if any, will the adopted, meaning it should be a kind to consolidate applicable state relationship be between them so as to highly participatory, nationally driven, obligations, overarching principles avoid conflicts in mandates. While the victim-centered process inclusive of all and mechanisms on transitional justice development of specialized transitional stakeholders. Further, it should provide in one framework making it a widely justice frameworks is still new, overarching direction for how the accessible and applicable resource. evidence shows that such a specialized country intends to address its history of instrument promises to pave the way violent conflict. Uganda sets pace for a more coherent and comprehensive The trend to adopt a specialized policy approach to transitional justice; and if International instruments to guide a transition process is quickly developed with the active participation In recognition of this complex task, gaining traction. Uganda adopted its of all sectors, promises to reflect a truly the United Nations developed several National Transitional Justice Policy in nationally owned process with relevant instruments over the years that stipulate 2019 , making it the first African Union mechanisms and strategies to meet the clear principles, concepts, mechanisms Member State to adopt a specialized nation’s goals of sustainable peace and and methodologies to undertake a policy on transitional justice. The reconciliation. JLOS transitional justice process that is NTJP outlines the country’s approach responsive to the local context, the to accountability through formal and Ismene Nicole Zarifis is a former victims, and the society as a whole. The informal justice mechanisms and calls International Technical Advisor on UN principles emphasize the victim- for a national reparations program. The Transitional Justice at the JLOS Secretariat, centered approach, the importance Gambia has developed a draft policy Ministry of Justice and Constitutional of a participatory and consultative with the similar intent of mapping Affairs approach to policy making and the out not only the mechanisms that will establishment of multiple transitional be put in place but more importantly www. jlos. go. ug Special edition on Transitional Justice 25 Transitional Justice Mechanisms Specialised Courts, International Crimes and Transitional Justice

In a bid to address impunity, Uganda has adopted various steps towards fulfilling its international commitment to protect human rights and to pursue accountability for serious international crimes. These included the ratification and domestication of the Geneva Conventions in 1964 and the Rome Statute in 2002 (domesticated in 2010), followed by the creation of the International Crimes Division (ICD) of the High Court.

n 2009, the Justice Law and crimes. The creation of the perpetrators of war crimes and other Order Sector (JLOS) undertook International Crimes Division (ICD) serious violations of international consultations on the use of of the High Court of Uganda in 2008 law. formal criminal prosecutions marks a significant step towards this Furthermore, Uganda is in the Iin addressing impunity with objective. process of adopting legislative and specific regard to the then proposed The ICD has jurisdiction to: Try policy measures directed towards International Criminal Court (ICC) any offence relating to genocide, the delivery of adequate protection Bill. The outcome of the study led to crimes against humanity, war crimes for witnesses and necessary support proposals for the amendment of the and trans-boundary international to victims and witnesses expected to Bill, which has now been enacted terrorism, human trafficking, participate in criminal proceedings. into law - the International Criminal piracy and any other crimes under Such measures, while critical for the Court Act, 2010 - intended to address international law” as may be provided trials to take place, will not be limited accountability for war atrocities that under the Penal Code Act of Uganda, to application by the ICD, but will be have been committed in different the Geneva Conventions Act of 1964, national in scope. parts of the country. and the International Criminal Court In an effort to enhance the capacity Uganda has since taken Act of 2010, as well as international of personnel in formal criminal additional steps to ensure effective customary law prosecutions, the Judges of the ICD, implementation of the above- Since the ICD’s establishment, the Registry, the DPP, Investigators, mentioned treaties, with a particular Uganda has adopted additional as well as members of the Ministry view to enhancing national capacity measures to ensure that it is effectively of Justice, the Uganda Law Reform to effectively prosecute international ‘able’ to pursue prosecution of Commission, defence counsel have

26 Special edition on Transitional Justice www. jlos. go. ug Transitional Justice Mechanisms had their capacity needs met through specialised training. Uganda is now pursuing its first trial against an alleged perpetrator of war crimes, Mr. Thomas Kwoyelo, a mid-level commander of the LRA. Uganda’s approach to complementarity—enhancing local capacity and sustainability Establishment of the ICD as a permanent yet specialised division of the High Court does not only contribute to meeting Uganda’s obligations under the complementarity principle, but as an integrated mechanism within the national court structure, the ICD is an important measure that promises H.E Yoweri Museveni shakes hands with a former LRA commander sustainability, enabling Uganda to fulfill its international obligations on the long-term. Transitional Justice and Finally, the progress achieved Complementarity is therefore Development thus far is a combined effort, led by envisioned and approached more the Government of Uganda with broadly in Uganda, encompassing Adopting an integrated approach the critical support of international the adoption of relevant institutional, to Transitional Justice, one that also stakeholders. Uganda’s ability to legal and judicial measures to includes the aim to improve conditions establish a specialised mechanism to strengthen the rule of law institutions of war affected communities will prosecute international crimes and and the administration of justice positively contribute to the full to adopt relevant measures to ensure more generally, not solely limited to recovery of victims and war affected a fair trial that meets international international crimes prosecutions. communities as well as enable standards, has been greatly enhanced Establishment of the ICD, building them to develop their livelihoods with the financial support and capacity of its staff and the adoption and contribute meaningfully to the technical assistance of international of relevant guidelines are therefore all national economy. These are essential partners. long-term investments in enhancing elements towards building lasting The principle of complementarity domestic accountability mechanisms peace in the region. Empowerment is presently being tested in Uganda; by the Government of Uganda. of this group will transform their however, with the necessary structures situation of dependency to a situation and personnel in place, Uganda is Transitional Justice in Uganda of independence. Our task is to confident to pass this test. What is The transition to peace implies more facilitate this transition by developing important in addressing issues of than just the end to hostilities and the appropriate mechanisms and impunity is Government commitment accountability for wrongdoers. policies. In this regard, Uganda is - and this has been expressed in the The Juba Agreement provides an faced with a new challenge and can Juba Agreement - the setting up of overarching framework for Uganda’s stand to learn from other countries the ICD, national consultations, and transitional justice process and having faced and overcome similar fulfillment of international obligations reminds us to view transitional justice situations so as to determine how best through ratification, domestication broadly and holistically. It emphasizes to move forward. and implementation. JLOS the importance of an integrated approach whereby complementary and coordinated mechanisms seek to achieve accountability through a variety of mechanisms, including truth-seeking, traditional justice and reparations for victims, with special Transitional justice strives not only to deliver justice emphasis on the rights of women and to victims of mass atrocities, but also to assist children. Uganda is therefore embarking on societies that were devastated by conflict to achieve a transitional justice process. It will sustainable peace and reconciliation. Peace and seek to explore options for alternative justice mechanisms to complement the reconciliation demand comprehensive societal formal justice initiatives spearheaded transformation that must embrace a broad notion of by the Government. As with the justice, addressing the root causes of conflict and the establishment of the ICD, Uganda hopes to develop transitional justice related violations of all rights. Transitional justice mechanisms that prove to have a long- mechanisms offer the potential for incorporating lasting impact on improving the lives economic, social and cultural rights. of those most affected by the conflict, but also for all Ugandans.

www. jlos. go. ug Special edition on Transitional Justice 27 International Crimes Division (ICD) Investigation and Prosecution of International Crimes in Uganda: Prospects and Challenges

As a signatory to the Rome Statute, the Government of Uganda has set up institutions such as the International Crimes Division (ICD) of the High Court and the International Crimes Section in the Office of the Director of Public Prosecutions, which are mandated to deal with international offences such as war crimes, crimes against humanity, genocide and other crimes of a transnational nature

INTRODUCTION Rome Statute under the “ICCP Act 2010” with their families in the DRC and CAR. he Government of the Republic and the Geneva Conventions of 1949 under The Re-integration is not enough, those of Uganda is a signatory to the “The Geneva Conventions Act 1964”. at whose hands they suffered have to Rome Statute that set up the Apart from the available legal frame be held accountable, and this calls for International Criminal Court. As work, in 2008, the High Court set up the investigation of cases in the DRC as well Tpart of operationalising the Statute, an now International Crimes Division (ICD) as executing arrests and extraditions in the International Crimes Division was set up of the High Court of Uganda which is DRC and CAR. in the High Court of Uganda and 3 judges mandated to adjudicate international Other International Crimes include: appointed to sit on this court. crimes, i.e. war crimes, crimes against terrorism, human trafficking, crimes For its part, the Office of the Director humanity, genocide and other crimes of against humanity, genocide, piracy etc. of Public Prosecutions (ODPP) also international nature and or of transnational Statistics from the Ministry of Internal established the International Crimes nature. Affairs show that Trafficking in persons Section which it staffed with three full The Geneva Conventions Act 1964 is increasingly becoming a major concern. time Prosecutors. When the workload so confers extra-territorial jurisdiction on the demands more Prosecutors can be assigned ICD, i.e. all war crimes committed outside THE CASE OF DOMINIC ONGWEN from time to time. Uganda can be heard before the Ugandan The case of Ongwen helps highlight The Directorate is empowered by Article courts of Judicature. the major challenges surrounding 120 of the Constitution of the Republic of adjudication of the international crime of Uganda to institute criminal proceedings in BACKGROUND war crimes: any court except the Court Martial. The Lord’s Resistance Army (LRA) and Captured as a child and rose through There have been cases tried by the the Allied Defence Forces (ADF) have the ranks. There are those who have International Crimes Division. Some have committed heinous crimes in the Northern argued loudly that therefore he been concluded while many others are still and Western Regions since the early 1990s. should either be forgiven or should in the pipeline. The most common offences The two groups have since moved to the not be held criminally liable. are war crimes, crimes against humanity, Democratic Republic of Congo (DRC), Fighting across the international terrorism and trafficking in persons. South Sudan and Central African Republic borders (CAR) and continue causing havoc. Committed atrocities in Uganda, South LEGAL FRAMEWORK Given the fact that the ADF & LRA Sudan, Sudan, DRC and CAR. Which The Rome Statute gives precedence rebels are operating across borders and government takes responsibility? to national justice systems to combat committing crimes it is pertinent that a Victims and witnesses scattered in all impunity and to assume responsibility for framework is established to ensure that those countries. Who bears the cost trying (or extraditing) those responsible they are arrested, successfully prosecuted of collecting evidence? Where is the for the crimes listed in the Rome State, i.e. and that the victims receive justice as a budget? war crimes, crimes against humanity and catalyst to end impunity. Was he captured, arrested or did he genocide. In the year 2013, over 200 victims surrender? Seleka rebels, UPDF, US Uganda as a country has exhibited (abductees) were repatriated to Uganda Army? its willingness and ability to deal with from the DRC and CAR. There are also Who captured him or who did he international crimes by domesticating the victims who have been re-integrated surrender to?

High court building in Kampala 28 SIIP III 2012-2017 www. jlos. go. ug International Crimes Division (ICD)

Amnesty or Prosecution? Who should before the sentence is read out. This is a Odong Latek decide? step in the right direction. The ICD needs to The lack of a law on Mutual Legal Luxury at the ICC. Suites, suits, sauna, take particular interest in this aspect. Assistance with several key countries conjugal rights, no death penalty etc like DRC and CAR. versus Luzira maximum security PROS AND CONS OF AMNESTY Uganda does not also have an prison. It has been some time since prosecution Extradition Treaty with the DRC and of an offence of war crimes or crimes CAR. This is quite surprising given COURTS OF LAW against humanity took place at the the amount of cross border criminality. Indeed courts of law could decide on International Crimes Division of Understandably DRC and CAR not whether war criminals who apply for the High Court of Uganda. Non being members of the Commonwealth amnesty can be prosecuted or granted prosecution before ICD can be both additional steps have to be taken to amnesty. The case of Kwoyelo who was good and bad. sign such a treaty. captured and applied for amnesty is We cannot prosecute all the crimes that Lack of a law on witness protection. awaiting judgment before the Supreme are committed. We have no human Some of the witnesses in Uganda and Court of Uganda. or financial capacity to do so. Neither the DRC and CAR need protection does the judiciary. and it is high time their needs are VICTIMS MARGINALISED A kind of plea bargain or surrender, addressed. These victims are mainly The criminal justice system is by and where the accused person pleads guilty the abductees and those who suffered large suspect-centred. The victims of crime, and gets amnesty is not a bad idea after sexual violence. apart from being used as witnesses are all. The only condition we would attach It is also important that Uganda completely left out of the criminal justice to this kind of plea bargain under the addresses the issue of the children system. who were born by the abducted girls This is more so in the arena of genocide, whether currently resident in Uganda, crimes against humanity and other offences CAR or in the DRC. covered under the Rome Statute. The LRA, 139 Ratification, domestication of the for example, left thousands of victims in girls were abducted Geneva Conventions and the Rome its wake. Abductees, bereaved families, in Statute is not enough. We have to maimed individuals and displaced fully empower the WCD to carry out communities. Oct. 1996 its mandate. Uganda can only be from St. Mary’s seen as a willing and able state when ABOKE GIRLS SSS Aboke. The the structures put in place can operate You can read about them in a book by without the setbacks in our laws. Els De Temmerman, 2001. 139 girls were case of these girls Kwoyelo’s case is still stuck in the abducted in October 1996 from St. Mary’s highlights the plight Supreme Court awaiting a ruling. Even SSS Aboke. The case of these girls highlights of victims of crime if Kony were to be captured tomorrow, the plight of victims of crime. ICC would offer more semblance of Aboke girls became Aboke women, justice than ICD with the Supreme Aboke brides, Aboke mothers. How Court yet to decide can the justice system ever atone for the Amnesty Act is that the accused person The Amnesty issue needs to be Aboke girls and their parents for their lost should take responsibility for his reconsidered. The Amnesty law in childhood, innocence and in some cases lost actions, pleads guilty and is convicted. its current form is an impediment to lives? Dominic Ongwen has many lawyers Thereafter he can be granted amnesty successful prosecution of those most lining up, vying and jostling for position if that is what the terms of the plea responsible. Moreover, the DRC and to represent him. How many lawyers agreement provide. CAR are not party to the Uganda have you heard of lining up to represent Whether the protagonist surrendered Amnesty Law. the victims? I think there is a Cabinet sub or was captured is a question of fact Difficulty in getting the cooperation Committee to choose Ongwen’s lawyers. not answerable by prosecution. It is of countries where girls and children Did you hear of many lawyers the army or whatever security organ at are trafficked to. There are registered positioning themselves to represent the the frontline that arrested or received companies dealing in the genuine Aboke girls or other girl brides abducted the accused person that can advise business of employment overseas by the war criminals? prosecution whether he surrendered or alongside those involved in trafficking. Nothing worth of mention has been done was arrested in the thick of action. There is the issue of freedom to contract to address their individual needs. Of course between adults. In other words, some peace has returned and like everybody else OTHER CHALLENGES victims unknowingly acquiesce in their in society they reap the peace dividend. Is The terror suspects of July 2010 mounted own kidnap. that all? a challenge to the Constitutional court On the other hand, about five members challenging the way they had been CONCLUSION of the top leadership have been indicted by arrested. Thankfully after what seemed The prospects for investigation and the ICC and untold resources have been set like a long time the Constitutional court prosecution of international crimes aside, as they should, to hunt them down. has finally dismissed their challenge remains bright as long as the challenges Some other fighters have been granted and set the stage for their prosecution posed by the Amnesty Act, lack of amnesty. before the International Crimes witness protection laws and the lack of So we have thousands of victims and a Division. a comprehensive victim rights regime handful of perpetrators. More attention Delays in bringing the accused remain unresolved. JLOS needs to be given to the victims. persons to trial. Gathering witnesses Thankfully under the Sentencing from abroad, legal challenges aka Adopted from a speech delivered by the Guidelines recently launched by the technicalities, death or disappearance Honorable Justice Mike Chibita (currently Judiciary, victims have been given a right of witnesses e.t.c serving as Supreme Court Judge) on the to be heard at the time of sentencing. A Death of accused persons, e.g. Vincent subject of complementarity and adjudication of Victims Impact Statement is required Otti, Okot Odhiambo, Raska Lukwiya, international crimes in Uganda. www. jlos. go. ug Special edition on Transitional Justice 29 International Crimes Division (ICD) Enact Witness Protection Law - Justice Kiggundu The International Crimes Division is a special division of the High Court, a national court established in 2008, under the 1995 Constitution of the Republic of Uganda. Originally, it was called the War Crimes Division. Edgar Kuhimbisa from the JLOS Secretariat spoke with Justice Jane F.B Kiggundu, the deputy head the ICD to get more insight in the mandate, jurisdiction and achievements of the court over the years.

What is the International Crimes Divi- Practice Directions of the ICD (Legal Notice sion; its mandate, mission, vision and No. 10 of 2011, gazetted 31 May 2011). The jurisdiction? offenses include: Any offense relating to he International Crimes Division genocide, crimes against humanity, war (ICD) is a Special Division of the crimes, terrorism, human trafficking, pira- High Court of Uganda (formally cy, and any other crimes as prescribed by known as the War Crimes Division). the Law. TIt was established in July 2008 pursuant to Article 141 of the Constitution of the What laws can be applied by the ICD? Republic of Uganda of 1995. Paragraph 3 The laws which shall be applied by the of the High Court (International Crimes ICD include: Division) Practice Direction, 2011 sets up The Constitution of Republic of Ugan- the International Crimes Division. da, 1995 MANDATE: The mandate of ICD is to The Trial on Indictments Act, (Cap. 23) check and end impunity of the perpetrators The Penal Code Act, (Cap. 120) of the most serious crimes by ensuring The Evidence Act (Cap. 6) their effective prosecution. The following The Criminal Procedure Code Act are some of the principles observed in a (Cap. 116) bid to realise the mandate: Justice Jane F.B Kiggundu The Prevention and Prohibition of Tor- To apply international best practices ture Act, No. 3 of 2012 and High Standards in criminal justice. the International War Crimes Division in The Anti - Terrorism Act, Act 14 of 2002 To be efficient and effective in its 2008? (as amended by Act 3 of 2017). operations at all times. In 2006, the Government of Uganda The Prevention of Trafficking in - Per To offer protection for victims of (GoU) and the Lord’s Resistance Army sons Act, Act No. 6 of 2009 International Crimes and have those (LRA) commenced peace talks to end The International Criminal Court Act, who have committed crimes against the conflict in Northern Uganda. In June 2010 No. 11 of 2010 them held accountable. 2007, the GoU and the LRA signed an The Geneva Conventions Act, (Cap. To put in support measures for the annexure to the final Peace Agreement on 363) protection of witnesses and victims. Accountability and Reconciliation, which The High Court (International Crimes To protect and observe the fair trial required the Government to establish both Division) Practice Directions, Legal rights of an accused person. formal and non-formal justice mechanisms Notice No. 10 of 2011 ICD MISSION: The mission of the ICD to address accountability and reparations The Judicature (High Court) (Interna- is to fight impunity and promote Human for atrocities committed in Northern tional Crimes Division) Rules of Proce- Rights, Peace and justice. Uganda. dure and Evidence No. 40 of 2016 ICD VISION: The vision of ICD is to In line with the JUBA PEACE Any other relevant laws. have a strong and independent AGREEMENT calling for the establishment Judiciary that not only delivers but also is of accountability mechanisms for How many judges does the ICD have? seen by the people to deliver justice and crimes perpetrated during the conflict, the Rule 4 of The High Court (International contribute to the economic, social and Government of Uganda established the Crimes Division) Practice Directions, Legal political transformation of society based on WAR CRIMES DIVISION in 2008, now the Notice No. 10 of 2011 states that the Divi- the rule of law. INTERNATIONAL CRIMES DIVISION sion shall have a minimum of three judges. JURISDICTION: Without prejudice to of the High Court, to try individuals The Head of the Division is Hon. Justice Article 139 of the Constitution, the Division suspected of committing war crimes in the David Kutosi Wangutusi, the Deputy Head is mandated to try any offence relating country. of Division is Hon. Lady Justice Jane F.B. to: genocide, crimes against humanity, Kiggundu. The third Judge is Hon. Justice war crimes, terrorism, human trafficking, Where is the ICD located? Vincent Okwanga. Her Worship Beatrice piracy and any other international crime as Currently, the ICD is located at Plot 8 Stella Atingu is the Registrar of the Divi- may be provided for under the Penal Code Mabua Road, Kololo, Kampala. However, sion. Act, (Cap. 120), The Geneva Conventions the Court may also sit in any other place in To assist ICD especially in the compo- Act, (Cap. 363), The International Criminal Uganda as the Chief Justice and the Princi- sition of Panels, the Hon Principal Judge Court Act, No. 11 of 2010 or under any pal Judge may decide. attached the following judges to ICD: Hon. other penal law. (see: Para 6 of the High Justice Michael Elubu, Hon. Justice Court (International Crimes Division) What kind of crimes does the ICD han- Duncan Gaswaga, Hon. Lady Justice Eva Practice Directions, No. 10 of 2011) dle? Luswata, Hon. Lady Justice Susan Okala- The ICD has jurisdiction over serious ny, Hon. Lady Justice Lydia Mugambe and What were the founding principles of International Crimes as prescribed in the Hon. Justice Stephen Mubiru.

30 Special edition on Transitional Justice www. jlos. go. ug International Crimes Division (ICD)

Which institution is responsible for What have been the major achievements witness protection and appreciating bringing charges before the International of the International War Crimes Division challenges to effective witness protec- Crimes Division? since its establishment in 2008? tion. According to the Constitution of Ugan- I assume the question relates to the Inter- da (Art 120 (3)) it is the Director of Public national Crimes Division as it is currently The ICD has also been involved in out- Prosecutions, on behalf of the People of known. The major achievements would reach activities aimed at: Uganda. include the following: Engaging grass root populations ● Hearing cases: Completed over affected by crimes committed by rebel Describe the relationship between ICD 80 trials groups and other international institutions such Training of Judicial Officers, Prose- Cultivating a level of awareness and as the International Criminal Court. cutors, Defence Counsel and Victims’ understanding of the ACDs mandate The International Crimes Division is a Counsel under which joint trainings and mode of operations, promote special Division of the High Court of Ugan- were undertaken. access to and understanding of judicial da. It is a national Court and should not Cultivation of cordial working rela- proceedings and foster realistic expec- be confused with the International Crim- tions and appreciating prosecution, tations about the court’s work. This inal Court (ICC), which is situated in The defence and victims’ counsel positions in turn is to engender not only greater Hague, Netherlands. The ICC is an Inter- and roles. local community but also participation national Court that handles cases dealing Adoption of international best prac- in court proceedings by addressing the with serious international crimes, specifi- tices and high standards. Sensitisation concerns of those in affected communi- cally the crime of genocide, crimes against of Security Agencies about the need ties and by countering misperceptions; humanity, war crimes and aggression. The to strictly observe the Constitutional in close collaboration with networks of ICC was established by the Rome Statute Rights and Freedoms of Suspects of victims, local leaders, RDC, police, and in 2002. The two adhere to the comple- Crime and Accused Persons. NGOs. mentarity principle. Complementarity is Development and publication of ICD’s Providing platform to provide infor- a principle which represents the idea that own rules of procedure and evidence mation on victims’ rights before the States, rather than the International Crim- Creating access for victims to partici- Court and facilitate interactions with inal Court (ICC), will have priority in pro- pate in the court process: Mapping and ICD officials and others ceeding with cases within their jurisdiction. identification of Victims in relation to As Roy S. Lee has written: This principle the crimes charged. And appointing How has the sector-wide approach (under means that the Court will complement, Counsel to represent the Victims. JLOS) effectively facilitated the work of but not supersede, national jurisdiction. Development of awareness of the need the international war crimes division? National courts will continue to have prior- for witness protection – its nature and In 2018, JLOS availed funds to com- ity in investigating and prosecuting crimes context, development of measures for mence prosecutions of those accused of committed within their jurisdictions, but committing crimes in Northern Uganda the International Criminal Court will act during the protracted war. when national courts are 'unable or unwill- Profile: ing' to perform their tasks. Uganda ratified In your view, what have been some of the and domesticated the Rome Statute in June Justice Jane key success stories from Uganda’s transi- 2010 by enacting the International Criminal tional justice process so far? Court Act 2010, meaning that it is obliged F.B Kiggundu The development and passing of the to respect the obligations in this treaty. In Transitional Justice Policy. general terms, the International Crimi- Who is justice Jane F.B The prosecution of those accused of the nal Court Act No. 11 of 2010 (commonly Kiggundu? most heinous crimes in the courts of known as the ICC Act) was enacted to give A judge of the High Court law both international and local courts. effect to the Rome Statute of the Interna- since 2007 tional Criminal Court and to provide for How significant is the passing of the Na- offences under the Laws of Uganda corre- Describe your journey working tional Transitional Justice Policy to Ugan- sponding to offences within the jurisdiction in the judiciary and now at the da as a nation but more specifically to the of that court. icd? work of the International War Crimes Di- Posted to Masaka High vision of the High Court going forward? The objectives of the Act include: Court Circuit from 2007-2011 Transition connotes the process or a peri- To implement Uganda’s obligations Redeployed to the Criminal od of changing from one state or condition under the Rome Statute of the ICC; Division of the High Court to another. Transitional Justice hence refers To make further provision in Uganda’s 2011-2013 to the ways countries emerging from peri- law for the punishment of the inter- Posted as ED JSI (as it was ods of conflict and repression address large national crimes of Genocide, Crimes then) 2013-2015 scale or systematic human rights violations against humanity, war crimes and oth- Transferred to Family so numerous and so serious that the nor- er International crimes; Division (while attached to mal justice system will not be able to pro- To enable Ugandan Courts to try, con- ICD) 2015-2017 vide adequate response. vict and sentence persons who have Posted to ICD 2017 to date It was therefore important to develop committed crimes referred to in the and pass the Transitional Justice Policy Statute (Section 2 of the ICC Act, 2010). What are some of the most as a nation to have in place a comprehen- Specifically, Uganda has the duty to fulfilling moments of your sive, holistic and victim-centred document. prosecute the listed crimes when they judicial career so far? With the policy in place, ICD and the nation are committed in its territory. If Ugan- Delivering of judgments are expecting a law to guide mainly da is unable or unwilling to do so, the especially after a session on the issues of: International Criminal Court may The calling off of the strike Witness protection and victim partici- bring charges against offenders of such by Judicial Officers pation in court, formal recognition and crimes, especially when the offenses The passing of the Judiciary regulation of traditional justice mech- were committed in Uganda after 2002. Administration Act 2020 anisms as tools for conflict resolution www. jlos. go. ug Special edition on Transitional Justice 31 International Crimes Division (ICD)

and protection of parties who seek to International Customary Law. Such Other challenges and recommendations: redress. crimes can be prosecuted and punished The ICD has a unique jurisdiction as Reparation, compensation, protection, under the Geneva Conventions Act. reflected in The High Court (Inter- peace building and reconciliation. However, this Act covers situations national Crimes Division) Practice The structure, jurisdiction, powers, of an International Armed Conflict Directions, Legal Notice No. 10 of functions and mandate of the National context. Further, under Section 2(1)(d) 2011 which conforms to international Truth-Telling processes at all levels and (e) of the Geneva Conventions Act, practice and standards. The Division Victims should be given platforms to 1964 (Cap. 363), the maximum penalty requires special funding to be able to tell their stories for a grave breach of wilful killing of establish a proper Registry and to put Perpetrators should be given the a person protected by Article 147 of in place measures necessary for a court, opportunity to confess their wrongs the Geneva Conventions IV of 1949 which handles international crimes. and seek forgiveness hence the adop- is imprisonment for life. In Uganda, In conformity with the principle of tion and recognition of complementary the Penal Code Act (Cap. 120) and the complementarity, Uganda needs to alternative justice mechanisms Sentencing Guidelines retain the death establish a well-funded team for inves- penalty. Therefore, there is a sentencing tigating and prosecuting international What challenges does the ICD face cur- disparity. crimes. The Agreement on Account- rently and how are these being addressed Under the Rome Statute it is the duty ability and Reconciliation provided by the judiciary? of every State: to exercise its criminal that the prosecution would be based on Challenges facing ICD are numerous but jurisdiction over those responsible for systematic independent and impartial not insurmountable. They include: international crimes and to establish investigation. (Item: 4.2) Uganda unlike Kenya does not have a an independent permanent internal The Government needs to expedite the victim and witness protection law. The criminal Court. A National Court takes process of making available legislation Court may make orders for protection the primary responsibility to try offenders for Victim and Witness Protection. The but who is responsible for implement- under international and domestic criminal Agreement on Accountability and Rec- ing them? Who holds the budget for law. The ICD therefore has to adopt onciliation required the Government to this - it is trite law that courts should take measures to ensure the safety and not make orders in vain? privacy of witnesses, protection of child While the court orders protective mea- witnesses and victims of sexual crimes. sures for prosecution witnesses, it has (Item: 3.4) to balance and ensure that an accused There is a need for a law to provide for person’s fair trial rights are not preju- and ensure the physical and psycholog- diced. The ICC Act, 2010 ical well being of victims and witnesses In the absence of legislation ICD cannot came into force on who come in contact with the court. put in place an elaborate structure for The law should also provide for victim victim participation in the court pro- June 25, June 2010. participation in proceedings before the cess in Uganda. However, some ICD and the right to legal representa- Under the existing legal framework, tion. The Agreement on Accountabil- the victims cannot directly claim for crimes were allegedly ity and Reconciliation in items 3.8 and compensation. The law leaves it at the committed before that 8.2 required Government to promote discretion of the court to determine effective and meaningful participation whether or not to award compensation. date, International of victims in accountability and recon- Where a convict is indigent, the Court Customary Law existed ciliation proceedings. would, as a matter of principle, make The issue of award of individual and an award of reparations against him before the ICC Act, collective reparations remain in the but the victims could end up get- 2010 came into force balance/hanging. A scheme for repa- ting nothing. The government is not rations and should provide for both obliged to provide reparations in such direct government programs for repa- cases. rations and court awards as provided The ICD does not have a trust fund for in item 6.4 and item 9 of the Agreement victims (unlike the ICC) to help fund an on sentences and sanctions and repara- award made by the court. international best practices and high tions. The ICD has no authority to award standards. However, the court does not The law on reparations should specifi- collective reparations. Direction 5(2)(e) have magistrates attached to it. Suspects cally provide for victims initiating and of the Sentencing Guidelines provides may be arrested and detained who will applying for compensation and mak- that the Court shall in accordance with end up being committed to the ICD for ing representations to the court. The the Sentencing Principles pass a sen- trial. For remand, such suspects/accused law should provide for a right of reply tence aimed at providing reparations persons appear before magistrates’ courts, to the accused/convict. for harm done to a victim or to the com- which have not yet been sensitised to A clear distinction should be drawn munity. There is need for substantive observe international best practices. The between offences against the State (e.g. law to empower ICD to issue Orders accused persons could have been subjected waging war) and offences against civil- for collective reparations. to abuses like torture, mistreatment and ians (gross violations of their human The ICC Act, 2010 came into force on denial of fundamental rights. Before such rights). This is to make Section 2 of the June 25, June 2010. However, some magistrates’ courts, the accused persons are Amnesty Act exclude international crimes were allegedly committed routinely remanded or further remanded crime, making perpetrators of the latter before that date, International without addressing their complaints and not to benefit from amnesty. Customary Law existed before the ICC /or concerns. It may be too late after the The law on reparations should provide Act, 2010 came into force. Crimes such committal for the ICD to do a post-mortem. for a Trust Fund from which awards by as Genocide, War Crimes and Crimes A lot of injustice might have been down to ICD could be drawn. JLOS Against Humanity were already this dynamic. End serious crimes (grave breaches) known

32 Special edition on Transitional Justice www. jlos. go. ug African Perspective

African leaders take part in a family photograph at the African Union Headquarters in Addis-Ababa, Ethiopia on February 09 2020 African Union Adopts Transitional Justice Policy

The 32nd Ordinary Session of the Assembly of the Union adopts the AU Transitional Justice Policy (AUTJP). The Policy is a continental guideline for AU Member States to achieve sustainable peace, justice, reconciliation, social cohesion and healing in line with Article 4 (o) of the Constitutive Act of the African Union, which calls for peaceful resolution of conflicts, respect for the sanctity of human life, and the condemnation and rejection of impunity

he AUTJP was initially Development and draws lessons from Union is once again renewing its considered and recommended past experiences, including African commitment to the promotion and for adoption by the 4th traditional justice systems. The AUTJP protection of justice, accountability, Ordinary Session of the presents an African model with holistic human and peoples’ rights in TSpecialized Technical Committee parameters, benchmarks and practical Africa.” She noted that: “this new on Justice and Legal Affairs held strategic proposals for designing, wave of Human and Peoples Rights from 23-30 November 2018 in Addis implementing, monitoring and promotion and activism in Africa Ababa, Ethiopia. The Policy was evaluating transitional justice in AU requires the support of all of us for it further consid ered by the Executive Member States based on key principles to make the required difference.” The Council, at its session preceding the and specific indicative elements. Commissioner further commended Assembly of the Union. The adoption The Policy also aims to ensure that the AU Member States that have was the culmination of an eight-year transitional justice activities address embraced the Policy prior to its journey characterised by multiple root causes of conflicts, legacies of adoption and championed its consultations, revisions and refining violence, governance deficits and implementation. JLOS to produce a policy that is one of the developmental challenges in Africa. African Shared Values instruments. Commenting on the adoption of For further information please contact: As one of the key policies aimed at the Policy, H.E Amb. Minata Samate Mr. John G. Ikubaje / Department of Political realizing Aspiration 3 of Agenda 2063, Cessouma, the Commissioner for Affairs / Email: [email protected] the AUTJP builds on the AU Policy Political Affairs of the African Union on Post-Conflict Reconstruction and Commission, said: “…the African www. jlos. go. ug Special edition on Transitional Justice 33 African Perspective African Union Transitional Justice Initiatives: Harnessing Opportunities for Peace and Development in Africa

By John G. Ikubaje

African Union Transitional Justice Policy (AUTJP) was developed as a guide for the formulation of national policies, strategies and programs aimed at promoting socio- economic transformation, sustainable peace, justice, reconciliation, social cohesion and healing from wounds inflicted by decades of human rights violations and conflict.

he year 2019 marked a significant of the ACHPR on TJ and human and peo- pandemic in Africa. Such opportunities, watershed in the history of tran- ples’ rights in Africa complements the amongst others, are highlighted below: sitional justice in Africa. The fol- AUTJP and made constructive recommen- lowing two significant documents, dations on how to tackle the challenges of Opportunities for innovations in the Tthe African Union Transitional Justice legacies of conflict, human rights viola- AUTJP, includes: Policy (AUTJP) and the report of the Afri- tions, governance deficits and underdevel- can Commission on Human and Peoples’ opment in Africa. While there are different The Provisions of the AUTJP are broad Rights on Transitional Justice, Human and definitions of transitional justice, the -Afri and comprehensive in nature and thus Peoples’ in Africa, were adopted by the Af- can Union on its part, taking into consid- provide opportunities for different stake- rican Union Assembly in February 2019, eration the continental nuances, defines holders to work on different aspects of TJ. and August 2018 by the 24th Extraordi- the concept as the various (formal and Unlike those of the United Nations, AUTIJP nary Session of the African Commission on traditional or non-formal) policy measures has more pillars. The UN has four TJ Pillars, Human and Peoples’ Rights respectively. and institutional mechanisms that societies, namely; Criminal Prosecution Initiatives, The implication of the above unanimous through an inclusive consultative process, Truth Seeking Initiative (TRC), Reparation adoption of these documents is that their adopt in order to overcome past violations, Programmes, and Institutional Reforms provisions point to the right direction on divisions and inequalities and to create . On the other hand, the AUTJP has the how to formulate, implement and evaluate conditions for both security and demo- following twelve unique areas of interven- impactful transitional justice mechanisms cratic and socio-economic transformation. tions (pillars): the Peace Processes; Transi- in Africa, particularly in countries currently The overarching objective of the Policy is to tional Justice Commissions; African Tradi- implementing one form of transitional jus- provide the policy parameters (on holistic tional Justice Mechanisms; Reconciliation tice mechanisms and the other. and transformational transitional justice), and Social Cohesion, Reparations; Redis- The AUTJP is conceived as a continental drawn from, among others, the AU rele- tributive (Socio-Economic) Justice; and guideline for AU member states to develop vant policy share values instruments (AU Memorialization. The others are: Diversity their own context-specific comprehensive Constitutive Act, the ACHPR, PSC Proto- Management; Justice and Accountability; policies, strategies and programmes to col, etc. The AUTJP, the ACHPR’s report Plea Bargains and Pardons; Mitigation of promote democratic and socio-economic on TJ and Human and Peoples Rights in Sentence and/or Alternative Forms of Pun- transformation, sustainable peace, justice, Africa and other AU initiatives on Transi- ishment and Amnesties . These provisions reconciliation, social cohesion and healing. tional Justice thus provide ample opportu- avail the Government, Civil Society and The Policy is meant to assist Member States nities for innovations and sustainability of Civil Society Organisations (CSOs), the implementing TJ. The Policy is an African TJ interventions at all levels of governance, Community Based Organisations (CBOs), model and mechanism for dealing with not prior, during and after the COVID-19 the media and the Private Sector a unique only the legacies of conflicts and human opportunity for innovations under the 12 rights violations but also governance defi- pillars and for them to constructively pur- cits and developmental challenges. TJ is sue their specialized areas of expertise to not new in Africa, it has been in the front an impactful conclusion. For example, one burner of the Africa’s agenda to deal with CSO in South Sudan - the Community the challenges of colonialism, apartheid, Empowerment for Progress Organization system repression and civil war. Since (CEPO) - is currently collaborating with 1990, TJ has been implemented in several the African Union and has established African countries to resolve the legacies Transitional Justice Centres across South of violent conflicts and gross violation of Sudan to educate the citizens on TJ and human rights. The Policy addresses three how they should engage the South Sudan significant issues in term of focus, namely TJ processes. The AUTJP helps a great deal Legacies of conflict and human rights in regard to this intervention. violations. The African Union Roadmap of Imple- Governance Deficits, and (TJ is a polit- mentation of the AUTJP makes provisions ical process). for Composition and establishment of the Developmental Challenges African Union Transitional Justice Refer- On its part, the above referenced report ence Group: Members of the group are to

John G. Ikubaje 34 Special edition on Transitional Justice www. jlos. go. ug African Perspective be drawn from TJ experts in Africa, includ- for Democracy and Development (CDD) ing the academia, CSOs and individual TJ Innovation and Sustainability in Nigeria is an organization that is doing experts. TJ practitioners from outside of of TJ Interventions on the very well in this area. Africa that are Africans will also be part of Continent post COVID-19 Another important opportunity for the group. The role of the Reference Group innovation in the Policy is that it provides will include, but not limited to, Africa’s pro- for the Decentralization of TJ intervention gramme definitions and quality control on in AU Member States: We are beginning various TJ interventions in the continent. The Ebola Virus and COVID-19 pan- to see this operationalized in a number of A group of 15 Transitional Justice Experts demics have impacted negatively on countries in Africa, fully utilizing the AU will be appointed across the continent. the human and peoples’ rights in Afri- TJ policy in framing their TJ interventions. The basis for the appointment will be pre- ca. The challenge of COVID-19 is par- For example, ECOWAS is currently devel- mised on equal regional representation. ticularly worrisome. The second phase oping its TJ framework and access to justice Three TJ experts will come from each of of the pandemic is looming and since programme; IGAD on its part, is develop- the African geo-political regions, including it is challenging the foundation of spe- ing her regional reconciliation policy for its youth, women and one TJ technical expert. cific human rights, Transitional Justice Member States to use. Countries like The The operationalization of this group will must take on board the victims of such Gambia, Nigeria, Mali and South Sudan are back-up the implementation of the AUTJP violations and address them according- embracing the same trends, while Uganda through the provision of technical qual- ly. To this end, the nature and dimen- has adopted its national Transitional justice ity control and advice to the AU Member sion of human rights violation during Policy following the adoption of the AUTJP. States, the AUC, RECs and CSOs and other the COVID-19 has made TJ a subject Interesting TJ decentralization innovations stakeholders. The innovation here is that of relevance. Sustainability of TJ inter- in Nigeria for example, include the North- the AU is not leaving the implementation ventions during and post COVID-19 is East TJ programme and the Kaduna and of TJ initiatives in the hands of Government therefore critical, and should be treated Plateau States Reconciliations Commissions officials alone, but bringing on board the as one of the elements of peacebuilding at the State level. We do hope to see this academia, private sector, CSOs and CBOs in African countries. To this end, the type of TJ decentralization at the local levels as key stakeholders and partners in imple- African Union Member States should just the way we have been having it at the mentation of TJ initiatives in Africa. take seriously as sustainability compo- community level from time immemorial in The AUTJP makes provisions for sus- nents in its TJ policy, programmes and Africa. Provision on Reporting of the out- tainability of TJ initiatives(s), even in times initiatives. comes of TJ implementation: Regular and of pandemic like the COVID-19 and after: Adoption of National Policy and TJ adequate reporting on policy implementa- In section four (4) of the policy, dealing Legislation at national level: It is an tion is a serious challenge in Africa, includ- with resource mobilization, the policy adopted policy and Member States ing on TJ initiatives. The Policy provides for provides for stakeholders across the con- are to develop policy to operation- regular reporting on AUTJP. In this context, tinental spectrum, with support from the alize it at the national level, a good the CSOs can also do a shadow report and international community, for the AU, RECs example in this regard is The Gam- make the reports available to AU, RECs and national governments to embark on bia that has developed a national and state government and other relevant resource mobilization, for both human and policy on TJ. We also have other human rights and policy making organs. financial resources in support of TJ imple- countries like Uganda that adopted COVID-19 Pandemic: an Opportunity for mentation. For example at the continental its own policy in 2019. Others at the TJ Innovations: As at the time of develop- level, the Policy provides for African Tran- verge of completing their national ment of the AUTJP, COVID-19 had not yet sitional Justice Fund (ATJF), which is dif- TJ policy include Sierra Leone and surfaced and to that end, the issue of similar ferent from the Africa Transitional Justice Zimbabwe, among others. challenge was not taken into consideration Legacy fund (ATJLF) . The Opportunity for Resource mobilization mecha- in the AUTJP. Meanwhile, the past and innovation here is that the RECs and mem- nisms in the AUTJ Policy and ongoing discussion on TJ and COVID-19 ber states, including the private sector and Member States: TJ policies and leg- has reinforced the need for the integration CSOs can also establish a Fund for TJ pro- islation will also help to realize sus- of COVID-19 and similar pandemics in TJ grammes at any level of governance. tainable innovations during and processes in Africa. The roadmap for the The Policy also provides for an array of after COVID-19 pandemic in West AUTJP has therefore utilised a transforma- actors in support to TJ initiatives and its Africa in particular, and Africa in tive approach to the implementation of the implementation in Africa: These actors for general. African Union Transitional Justice Policy, example, range from the (1.) national gov- CSOs, CBOs and Media advocacy by incorporating a section that addresses ernment (including local and state govern- as provided for in the AUTJP will present and emerging crisis-related expe- ments); (2) intergovernmental organiza- also assuage sustainability of TJ riences, including COVID-19 and similar tions- like the AU and RECs, and the (3.) innovations on the continent. pandemics with the aim of constructively non-state actors- including private donors transforming the lives of victims and affect- like the MacArthur Foundation, the CSOs ed communities during the COVID-19 and the private sector involvement in the pandemic. As COVID-19 has brought to implementation of TJ initiatives in Africa. inhibiting TJ on the continent and how to fore new and peculiar human rights viola- Knowledge Generation and Experience overcome these challenges. tions, TJ interventions must therefore take Sharing: The African Union has different Connected to this experience sharing, is on board the new violations as part of the programmes that are currently helping the provision for knowledge generation in TJ remits. in generating knowledge and experience the AUTJP. A good reference in this regard In conclusion, innovation(s) on TJ during sharing on TJ on the continent. These is the new Report of the African Commis- and after COVID-19 in West Africa and programmes include the Annual African sion on Human and Peoples’ Rights Study beyond on the continent will therefore Union Continental Transitional Justice on Transitional justice and Human and require efforts on the parts of all the Forum, which provides opportunity for a Peoples’ Rights in Africa . The knowledge stakeholders. JLOS yearly interaction among TJ stakeholders generated on TJ in Africa thus far under and practitioners on the continent to come the AU has impacted positively through John G. Ikubaje is a Senior Political Officer together to share good practice experienc- new innovations among the AU Member in the Department of Political Affairs at the es on TJ implementation and challenges States in their TJ programming. The Centre African Union Commission. www. jlos. go. ug Special edition on Transitional Justice 35 Witness Protection

Witness Protection: Implications for the Prosecution of War Crimes

By Lino Anguzu

The need to protect witnesses stems from the fact that criminals will want to exploit any available opportunity including threats in order to avoid conviction, hence the need for prosecutors to ensure a maximum degree of security and safety for their witnesses.

ar crimes are a class of in- and ears of justice. All that parties to criminal trials are left ternational crimes that take Despite this important role, witnesses to rely upon for the protection of wit- place in a context of armed are often exposed to risks in the process nesses in Uganda, are mere guidelines conflict. These are serious which calls for some meaningful degree and rules that remain unconsolidated Wviolations of the laws or customs of war of protection to be accorded to them thus rendering them largely ineffective. applicable in both international and if justice is to be administered in any A number of protective measures are non-international armed conflicts (IAC true sense. The need to protect any wit- available to witnesses depending on & NIAC) . In other words, war crimes ness stems from the fact that criminals the stage of the case i.e pre-trial, in-tri- include grave breaches of the Geneva will exploit any available opportunity al and post-trial. Confidentiality and Conventions, and other serious viola- to avoid conviction. This may include cover stories are critical to the success tions of the laws and customs applicable destroying evidence, harming the wit- of protection in addition to other emer- in international armed conflict and in nesses or intimidating against testifying conflicts not of an international charac- etc hence frustrating the case. This is a ter when committed as part of a plan or problem that all criminal prosecution policy and on a large scale. are faced with globally. Member States have the primary The ultimate aim and goal of witness responsibility of trying war crimes. protection is therefore the security and States are urged to establish specialized safety of witnesses and their loved ones courts at national levels vested with before, during and after their testimo- jurisdiction to try war crimes. For Ugan- nies in court without fear of harm or da, the International Crimes Division of threats to their lives on account of their the High Court is established for that testimonies. purpose . At the international level, the Any meaningful witness protection International Criminal Court (ICC) has regime must be anchored on sound leg- the mandate and jurisdiction to hold islation. Many countries have enacted persons accountable for international legislation to provide for witness pro- crimes committed within the territory of tection. The same is true for the Interna- any Member State of the United Nations. tional criminal tribunals. These provide The ICC however only exercises juris- clear laws and rules of procedures gov- diction in a complementary capacity. erning the protection of witnesses which In general, a witness is any person has greatly aided the operation of those privy to an event constituting a crime/ tribunals. For the case of Uganda, it is charge and with information that is rel- indeed surprising that such an import- evant to criminal proceedings who has ant piece of legislation has not yet agreed to corporate with police during been enacted despite its evident investigation and to testify before court importance and necessity. during the trial . Any party to criminal proceedings may call any person who has witnessed a crime, or with information relevant to the case before Court to testify as a witness. Witnesses may be direct victims of crimes, innocent bystanders, co-accused or accomplices, experts, technical witnesses, insider witnesses and etc. Witnesses play a critical role in any criminal justice administration. Without witnesses, it would not be possible for courts and tribunals to administer justice as they are the eyes

Lino Anguzu

36 Special edition on Transitional Justice www. jlos. go. ug Witness Protection gency backup plans . In a war crimes mental to the protected witnesses. the accused . prosecution where the crimes are com- Witness protection often has an In considering protection measures mitted in the context of armed conflict impact on the evidence of the witness. and balancing the different interests at and violence, the risks to witnesses are In developing countries like Uganda stake, the Courts have emphasised that much higher and more serious. Before where standards of living are generally the balance dictates clearly in favour of commencement of trial, prosecution is low, the treatment accorded to protected the accused’s right to the identity of wit- obligated to disclose both incriminat- witnesses often have the appearance or nesses, which the Prosecution intends to ing and exculpatory evidence to the effect of improving the stature of such rely upon while due regard must also be defence/accused . This is usually at the witnesses in terms of wellbeing. Pro- given to the protection of victims and pre-trial stage of court proceedings. vision of basic necessities to protected witnesses, which is a secondary consid- The protective measures the Court may witnesses may appear as privileges for eration. This is the same jurisprudence issue at this stage include redacted dis- testimony. This has two possible conse- drawn from the on-going war crimes closure or delayed disclosure. However, quences for the case. The defence is like- trial of Thomas Kwoyelo and other sub- full disclosure is usually required short- ly to challenge the witness’ evidence by sequent cases may follow. ly before the witness testifies but with attributing it to the motivation of protec- In conclusion, Witness protection is strict requirements of confidentiality tion. Secondly, the witness may misun- a critical aspect of the administration not to be disclosed to third parties . In derstand the objective of the protection of criminal justice and can no longer be court procedural protective measures accorded and either exaggerate or give ignored. The stakes are even higher for applicable in both domestic and interna- false evidence in order to appease his/ war crimes cases and other organized/ tional trials of war crimes include use of her protectors. transnational organized crimes, without pseudonyms, face or voice distortion or Many developing countries are reluc- which no meaningful prosecution can both, camouflage, proceeding in camera, tant to commit to serious witness protec- be achieved. What is paramount is that concealing or expunging the identity of tion programmes due to apprehensions the measures should strictly be used to the protected witnesses from the Court about the budgetary implications. An make witnesses safe and comfortable record of proceedings, which is a public effective witness protection program and available to all the parties to the tri- document. Special protective measures requires the setting up of an indepen- al equally. As a country, Uganda should may also be granted by the court for spe- dent and well-facilitated witness protec- urgently put in place the witness pro- cial categories of witnesses such as victims of sexual violence, a child witness, elderly persons, traumatized witnesses and others. Such measures may include testimony by video-link, shielding the witness from direct eye contact with the As Prosecution, we welcome this policy and look accused etc. Relocation and change of forward to achieving more, especially in the prosecution identity are the most extreme but most of war crimes and other international crimes as well as effective modes of protection. They are also the costliest and therefore must not other transnational organized crimes. be casually suggested or undertaken. Witness protection measures have serious implications on the right to a fair trial for the accused person. An accused is entitled to know who the accuser(s) tion agency capable of executing such a tection legislation and programs. The are in order to investigate their infor- complex mandate. This is a costly ven- enactment of the National Transitional mation or evidence and to confront and ture. Globally, the most effective witness Justice Policy is an important step that challenge that evidence fairly. Further, protective measure is relocation and will strengthen the witness protection an open and public trial is a fundamen- change of identity. However, this mea- measures with the existing rules and tal tenet of fair trial. It enables the Court sure is quite burdensome in terms of guidelines that are already in place to test the veracity of evidence adduced resources. It is therefore a last resort and especially for the serious cases such as by the prosecution. Yet, witness protec- is only invoked on account of absolute war crimes. The Office of the Director of tion negates from these important prin- necessity where no other measure can Public Prosecutions in recognition of the ciples. offer protection to the witness. need for witness protection has estab- Witness protection also has serious The above is however mitigated by lished a specialized department for this ramifications for the lives of the protect- the duty of courts to protect the interests purpose and once the law is enacted, it ed witnesses and their families. Having and rights of witnesses appearing before will ease the work and operation of the witnesses in protective custody often it as well as the greater interest of justice. department. infringes on some fundamental rights This therefore requires that the Court As Prosecution, we welcome this of such witnesses such as liberty of should always balance the interests of policy and look forward to achieving movement and association. In the most the accused, witnesses, victims of crime more, especially in the prosecution extreme cases of protection, where wit- and the interests of justice. Protective of war crimes and other international nesses are relocated from their home measures must only be ordered when crimes as well as other transnational countries and communities or the Court is satisfied that an objective organized crimes. JLOS change of identity, it disrupts the situation exists and the security of the life of the witness by uprooting said witness is or maybe at stake. In oth- Lino Anguzu is the Assistant Director the witness from their com- er words, the threats or risks are real and of Public Prosecutions and heads the munity and cuts all social not merely perceived. Protective mea- International Crimes Department in the ties such witnesses hither- sures must be granted only on excep- Office of the Director of Public Prosecutions. to had. This often causes tional basis and following a case-by-case serious psychological assessment of whether they are neces- problems that are detri- sary and proportionate to the rights of

www. jlos. go. ug Special edition on Transitional Justice 37 International Criminal Court Dominic Ongwen: ICC Case Information Sheet

Place of birth: Coorom, Kilak County, Amuru district, Northern Uganda

Nationality: Ugandan

Position: Alleged Former Brigade Commander of the Sinia Brigade of the LRA

Warrant of arrest: Issued under seal on 8 July 2005 | Unsealed on 13 October 2005

Charges: pattern of “brutalization of civilians”. This Transfer to ICC Dominic Ongwen is accused, pursuant had been carried out by acts including to articles 25(3) (a) (direct perpetration, murder, abduction, sexual enslavement, Detention Centre: indirect perpetration and indirect mutilation, and mass burnings of houses 21 January 2015 co-perpetration), 25(3) (b) (ordering), and looting of camp settlements. Civilians, 25(3) (d) (i) and (ii) and 28(a) (command including children, are believed to have Initial appearance responsibility) of the Rome Statute, for the been abducted and forcibly “recruited” hearing: following crimes against humanity and as fighters, porters and sex slaves to serve war crimes: the LRA and to contribute to attacks 26 January 2015 War crimes: attack against the civilian against the Ugandan army and civilian population; murder and attempted communities. Confirmation of murder; rape; sexual slavery; torture; In the context of this insurgency, it is charges hearing: cruel treatment; outrages upon alleged that the Pajule IDP (October 2003), 21 -27 January 2016 personal dignity; destruction of the Odek IDP (April 2004), the Lukodi IDP property; pillaging; the conscription (May 2004) and Abok IDP camps (June and use of children under the age of 2004), were attacked and that in his capacity Decision on the 15 to participate actively in hostilities; as Brigade Commander of the Sinia confirmation of Crimes against humanity: murder Brigade of the LRA, Dominic Ongwen charges: and attempted murder; torture; would have ordered the commission of 26 March 2016 sexual slavery; rape; enslavement; crimes within the jurisdiction of the Court forced marriage as an inhumane act; in the context of these attacks. Opening of persecution; and other inhumane acts. Mr Ongwen is charged with the following crimes against humanity and the trial: Alleged crimes: war crimes: 6 December 2016 During the period from 1 July 2002 War crimes: attack against the civilian to end 2005, the LRA, an armed group, population; murder and attempted Closure of allegedly carried out an insurgency murder; rape; sexual slavery; torture; Submission of against the Government of Uganda and cruel treatment; outrages upon the Ugandan Army (also known as the personal dignity; destruction of Evidence: Uganda People’s Defence Force - UPDF property; pillaging; the conscription 12 December 2019 - and local defence units - LDUs). There and use of children under the age of are reasonable grounds to believe that 15 to participate actively in hostilities; Closing the LRA had been directing attacks Crimes against humanity: murder statements: against both the UPDF and LDUs and and attempted murder; torture; 10-12 March 2020 against civilian populations, and that, in sexual slavery; rape; enslavement; pursuing its goals, the LRA had engaged forced marriage as an inhumane act; in a cycle of violence and established a persecution; and other inhumane acts.

38 Special edition on Transitional Justice www. jlos. go. ug International Criminal Court

Key judicial developments: Confirmation of charges Legal Representatives of Victims also called The confirmation of charges hearing witnesses to appear before the Chamber. Referral and opening of the in respect of Dominic Ongwen was held The trial resumed on 18 September 2018 investigation from 21 – 27 January 2016. On 23 March with the opening statements of the Defence 2016, Pre-Trial Chamber II confirmed the and the Defence started the presentation Uganda signed the Rome Statute on 17 charges brought by the Prosecutor against of its evidence on 1 October 2018. On 6 March 1999 and ratified on 14 June 2002 Mr Ongwen and committed him to trial. December 2019, the Defence closed its becoming a State Party to the International On 2 May 2016, the Presidency constituted presentation of evidence. Criminal Court. On 16 December 2003, Trial Chamber IX to be in charge of the case. Over the course of 231 hearings, the the Government of Uganda referred the Chamber heard 69 witnesses and experts situation concerning northern Uganda Trial called by the Office of the ICC Prosecutor, to the Office of the Prosecutor. On 29 On 6-7 December 2016, the trial opened Fatou Bensouda, 54 witnesses and experts July 2004, the Prosecutor determined a before Trial Chamber IX at the seat of the called by the Defence team lead by Krispus reasonable basis to open an investigation Court. The charges against Mr Ongwen Ayena Odongo and 7 witnesses and experts into the situation concerning northern were read and the Chamber was satisfied called by the Legal Representatives of the Uganda. that the accused understood the nature of Victims participating in the proceedings. the charges. The accused pleaded not guilty The Trial Chamber issued 70 oral decisions, Warrant of arrest to the charges. Opening statements were and 190 written decisions during the trial On 6 May 2005, amended and then made by the Office of the Prosecutor phase of the proceedings. supplemented on 13 May 2005 and and the Legal Representatives of victims. On 12 December 2019, the presiding additionally on 18 May 2005, the The trial resumed on 16 January 2017 judge declared the closure of the Prosecutor submitted the request for the with the presentation of evidence of submission of evidence in the case The total warrants of arrest for Joseph Kony, Vincent the Prosecution. The Prosecution has case record, consisting of the filings of the Otti, Raska Lukwiya, Okot Odhiambo and completed its presentation of evidence. The parties and participants and the Chamber's Dominic Ongwen. On 8 July 2005, Pre-Trial decision, currently includes more than 1720 Chamber II issued warrants of arrest under filings. seal against the named individuals for the Composition of Trial commission of crimes against humanity Chamber IX The closing briefs in this case were and war crimes and requested the filed on 24 February 2020. Republic of Uganda to search for, arrest, detain and surrender to the Court, Joseph Judge Bertram Schmitt, The closing statements took place from Kony, Vincent Otti, Raska Lukwiya, Okot Presiding Judge Judge 10 to 12 March 2020. During the closing Odhiambo and Dominic Ongwen. Peter Kovacs Judge statement hearings, the Prosecution, the On 9 September 2005, the Prosecutor Legal Representatives of Victims and the submitted an “Application for Unsealing of Raul C. Pangalangan Defence presented their final arguments. Warrants of Arrest Issued on 8 July 2005” to Trial Chamber IX will now deliberate on Pre-Trial Chamber II. On 13 October 2005, Representation of the the proceedings and, within a reasonable Pre-Trial Chamber II decided to unseal the Office of the Prosecutor period, pronounce its decision on warrants of arrest for Joseph Kony, Vincent conviction or acquittal pursuant to article Otti, Raska Lukwiya, Okot Odhiambo and 74 of the Rome Statute. The Chamber bases Dominic Ongwen. On 29 January 2015, the Fatou Bensouda, its decision only on the applicable law non-redacted warrant of arrest for Dominic Prosecutor and on evidence submitted and discussed Ongwen and its translations in French and before it at the trial. Acholi were reclassified as public pursuant to an instruction of Pre-Trial Chamber II. James Stewart, Deputy Participation of victims Prosecutor 4,065 victims have been granted the right Separation of the ongwen case to participate in the proceedings. They are On 6 February 2015, Pre-Trial Chamber represented by two teams of lawyers. A II severed the proceedings against Dominic Benjamin Gumpert, first group of 2,564 participating victims Ongwen from the case of The Prosecutor Senior Trial Lawyer is represented by two lawyers, Joseph v. Joseph Kony, Vincent Otti, Okot Akwenyu Manoba and Francisco Cox, Odhiambo and Dominic Ongwen. As the who were chosen by these victims under three other suspects in the case have not Defence Counsel for Rule 90(1), which allows victims to choose appeared or have not been apprehended Dominic Ongwen a Legal Representative. Paolina Massidda yet, the Chamber deemed it necessary from the Office of Public Counsel for to separate the case so as not to delay the Victims represents a second group of 1,501 proceedings against Mr Ongwen. After Krispus Ayena Odongo victims who did not choose a lawyer. JLOS having consulted the Prosecutor, the Chamber decided not to proceed against Source: International Criminal Court the other three suspects in absentia. Legal Representatives of the Victims For more information: Surrender and transfer International Criminal Court: Oude On 21 January 2015, Dominic Ongwen Waalsdorperweg 10, 2597AK The Hague, was transferred to the ICC Detention Joseph Akwenyu Manoba The Netherlands. Postal address: Po Centre in The Hague (Netherlands). His Box 19519; 2500 CM, The Hague, The initial appearance before the single Judge Netherlands. Tel. + 31 (0)70 515 8515; Fax. of Pre-Trial Chamber II took place on 26 Francisco Cox +31 (0)70 515 8555 January 2015. Paolina Massidda

www. jlos. go. ug Special edition on Transitional Justice 39 International Criminal Court LRA Boss Ongwen: ICC to Deliver Verdict on January 12

After a four- year wait, the International Criminal Court (ICC) finally announced the date on which it will deliver the verdict for rebel leader Dominic Ongwen

he Prosecutor v. Dominic humanity allegedly committed in on February 24, 2020. The closing Ongwen will be delivered on northern Uganda. The Prosecution statements took place from March January 12, 2021. The session and the Defence have completed the 10-12, 2020. will be transmitted live presentation of their evidence. The Over the course of 231 hearings, Tthrough the ICC website. Practical Legal Representatives of Victims also the Chamber heard from 69 witnesses information on attending the session called witnesses to appear before the and experts called by the Office of and information materials will be Chamber. On December 12, 2019, the the ICC Prosecutor, Fatou Bensouda, available in due course. Presiding Judge declared the closure 54 witnesses and experts called by The verdict will be read out in of the submission of evidence in the the Defence team lead by Krispus public and will either acquit or convict case. The closing briefs were filed Ayena Odongo and seven witnesses the accused. The accused before the and experts called by the Legal ICC is presumed innocent. While Representatives of the Victims. The the Prosecution must prove the guilt judges ensured the respect of the of the accused, the Trial Chamber rights guaranteed by the Rome Statute will convict the accused only if it is to each of the parties, including the satisfied that the charges have been right to question the witnesses. proven beyond reasonable doubt. The A total of 4,065 victims, represented Chamber bases its decision only on A total of by their legal counsels Joseph the applicable law and on evidence Akwenyu Manoba, and Francisco submitted and discussed before it at 4,065 Cox, as well as Paolina Massidda, the trial. victims, represented respectively, have been granted the The Chamber is composed of Judge right to participate in the proceedings. Bertram Schmitt, Presiding Judge, by their legal counsels They have expressed their position on Judge Péter Kovács and Judge Raul Joseph Akwenyu matters heard before the Chamber and Cano Pangalangan. The three judges were authorised to examine witnesses ensure the fairness of the trial and Manoba, and Francisco on specific issues. that the rights of both parties and of Cox, as well as Paolina The Trial Chamber issued 70 the victims are respected. In response oral decisions, and 190 written to the verdict, the parties will be able Massidda, respectively, decisions during the trial phase of the to appeal the decision before the ICC's have been granted the proceedings. The total case record, Appeals Chamber. consisting of the filings of the parties right to participate in and participants and the Chamber's Order Scheduling the Delivery of the proceedings decision, currently includes more the Judgment than 1750 filings. JLOS Background: The trial in this case Source: International Criminal Court opened on December 6, 2016. Dominic Ongwen is accused of 70 counts of war crimes and crimes against

40 Special edition on Transitional Justice www. jlos. go. ug International Criminal Court

A court session at the International Criminal Court in The Hague

he Court is participating in a global fight to end impunity, and through About the International international criminal justice, the Court aims to hold those respon- Tsible accountable for their crimes and to Criminal Court (ICC) help prevent these crimes from happening again. The Court cannot reach these goals The International Criminal Court (ICC) investigates and, where alone. As a court of last resort, it seeks to warranted, tries individuals charged with the gravest crimes of complement; not replace, national Courts. concern to the international community: genocide, war crimes, Governed by an international treaty called the Rome Statute, the ICC is the world’s crimes against humanity and the crime of aggression. first permanent international criminal court. one to answer to after committing people remain at large. Charges have widespread, systematic international been dropped against three people due Key Features crimes. The ICC calls on all countries to their death. The Office of the Prosecutor is an inde- to join the fight against impunity, so ICC judges have also issued nine sum- pendent organ of the Court. The Pros- that perpetrators of such crimes are monses to appear. ecutor conducts preliminary examina- punished, and to help prevent future The judges have issued eight convic- tions, investigations and is the only one occurrences of these crimes. tions and four acquittals. who can bring cases before the Court. Defendants are entitled to public, fair ICC Facts and Figures Founding treaty: The Rome Statute proceedings that they can follow in a Over 900 staff members: from approxi- The creation of the Rome Statute in 1998 language they fully understand, and mately 100 States. was in itself a historic event, marking a more. Six official languages: English, French, milestone in humankind's efforts towards ICC judges conduct judicial proceed- Arabic, Chinese, Russian and Spanish. a more just world. ings and ensure the fairness of pro- One ICC Liaison Office to the Unit- The Rome Statute then took effect in ceedings. ed Nations in New York and 7 ICC 2002, upon ratification by 60 States. In addi- Victim's voices are heard in the court- Country Offices in Kinshasa and Bunia tion to founding the Court and defining room, as the Rome Statute grants vic- (Democratic Republic of the Congo, the crimes of genocide, war crimes, crimes tims unprecedented rights to partici- “DRC”); Kampala (Uganda); Bangui against humanity, and – as of amendments pate in ICC proceedings. Watch now. (Central African Republic, “CAR”); made in 2010 – the crime of aggression; the The ICC has a victim and witness Abidjan (Côte d’Ivoire); Tbilisi (Geor- Rome Statute also sets new standards for protection programme that uses both gia); and Bamako (Mali). victims' representation in the Courtroom, operational and procedural protective Two working languages: English and and ensures fair trials and the rights of the measures. French. defence. The Court seeks global coopera- The Court engages in two-way dia- Headquarters: The Hague, the Nether- tion to protect all people from the crimes logue directly with communities that lands. codified in the Rome Statute. have suffered from crimes under its 2020 budget: €149,205,600 Today, the Treaty serves as the ICC's jurisdiction, so that they can communi- There have thus far been 28 cases guiding legal instrument, which is elab- cate directly with the Court and gain a before the Court, with some cases hav- orated in such other legal texts as the Ele- sense of ownership in the judicial pro- ing more than one suspect. ments of Crimes, Rules of Procedure and cess. ICC judges have issued 35 arrest war- Evidence and more. JLOS By supporting the Court, the countries rants. Thanks to cooperation from the that have joined the Rome Statute sys- States, 17 people have been detained Source: International Criminal Court tem have taken a stand against those in the ICC detention centre and have who, in the past, would have had no appeared before the Court. Some 13 www. jlos. go. ug Special edition on Transitional Justice 41 Amnesty Amnesty as an Arm of Transitional Justice: Uganda’s Experience

By Nathan Twinomugisha Amnesty is a form of pardon. In the Ugandan context, amnesty is defined by the Amnesty Act, 2000 and it owes its origin to the determination of the people of Uganda to seek reconciliation with those who have inflicted so much pain on them in conflict.

he preamble to the Amnesty possession. The principle of complementarity Act expresses the wish of The Act was passed following is also respected if the International Ugandans to end suffering and conflicts in some parts of the country Criminal Court (ICC) is involved. to reconcile with insurgents particularly in Northern Uganda There are certain circumstances Twho may have committed atrocities. led by Joseph Kony of the Lord’s where the Uganda Amnesty In exchange, Ugandans ask that the Resistance Army. There were several Commission will NOT grant an insurgents should stop inflicting other rebel movements including the amnesty to an ex-combatant. needless suffering on others. Allied Democratic Front (ADF) and the The following categories of Since 1986, over 27,500 potential West Nile Bank Front. ex-combatants are excluded from killers have been persuaded to Amnesty according to the being granted pardon: abandon rebellion to embrace peace Uganda Amnesty Act is given once. Those persons already convicted in return for a grant of amnesty. The Recidivism (going back into rebellion) by the courts of law for the same Amnesty Commission, which was is not tolerated. This is to guard offence created by the Ugandan Government against impunity. Hence a rebel who Those indicted by the ICC (these in the year 2000, was to receive, re-offends cannot be granted Amnesty include Joseph Kony and four rehabilitate and reintegrate these again. others) “born again” insurgents back into their The Amnesty Act allows the Director Non –Ugandans communities and to ensure that the of Public Prosecution (DPP) to play a Those excluded by the Minister ex-combatants understand their duty part since the Amnesty Commission of Internal Affairs through the to renounce and abandon violence. has to consult the DPP before any Parliament of Uganda (S.2A of the The reporters (ex-combatants) accused person can be considered for Amnesty Act, as amended) then surrender weapons in their grant of a pardon. Children under the age of 12 as the

The President of Uganda H.E Yoweri Kaguta Museveni receiving a flag from the late Major General Bamuze of West Nile Bank Front

42 Special edition on Transitional Justice www. jlos. go. ug Amnesty

law absolves them from criminal Carpentry women and children) and liability Welding therefore the need for continued Those accused of serious crimes Bicycle repair counselling and psychosocial (war crimes) and crimes against Soap making support to address trauma. humanity such as genocide Candle making The capacity of the Amnesty Those ex-combatants who Tree and fruit planting Commission is limited both in re-offend (go back into rebellion- Environment management human resource, mandate and recidivism). Apiary financially. Hairdressing and The Mandate of the Uganda Entrepreneurial skills Shifting to transitional justice Amnesty Commission Tools have included the following: The National Transitional Justice Hoes Policy was passed by Cabinet on To demobilize and give amnesty Maize mills June 17, 2019. to reporters – that is those Sewing machines A technical team to fast-track the ex-combatants seeking to be Metal fabrication kits operationalization of the policy pardoned Carpentry kits was formed by the Ministry of To resettle the reporters in their Bee hives Internal Affairs and the Ministry communities. This is a short term Inputs included seedlings, seeds, of Justice and Constitutional assistance to ex-combatants pesticides, candle and soap making Affairs. To reintegrate the ex-combatants. inputs and hair dressing kits. It The team so far has developed This is a longer term assistance to should be noted that in re-integration, principles and drafted the them 30% of the people re-integrated were National Transitional Justice Bill. To promote dialogue reconciliation victims of the rebellions. Countrywide consultation and as a method of peace building. Dialogue and reconciliation dissemination of the NTJP was The Amnesty Commission chaired initiated including printing of the Achievements of the Amnesty peace talks between the Government policy and integration into NDP Commission since inception Demobilization The Commission has so far demobilized close to 28,000 ex-combatants. Since 1986 over 27,500 potential Demobilization by rebel group Lord’s Resistance Army (LRA) killers have been persuaded to 13,304 ex-combatants. West Nile Bank Front (6,501) abandon rebellion to embrace peace Uganda National Rescue Front in return for a grant of amnesty [UNRF] (3,253) Allied Democratic Front [ADF] (2,341) Other Rebel Groups (2,099) Resettlement The Amnesty Commission has resettled 21,767 ex-combatants. This involved giving them short- of Uganda and Uganda National III strategic direction. term assistance, which included a Rescue Front II, which enabled 2,500 Transitional justice is wider and mattress, a blanket, a basin, a jerrican, UNRF II fighters to be demobilized. consists of the traditional justice saucepans, cups and plates, garden The commission also brokered the mechanism, formal trials for items (2 hoes, 5kg of maize for Juba Peace Talks between the LRA of those who have committed grave planting and beans also for planting. Joseph Kony and the Government of atrocities like war crimes and An allowance of UGX 263,000/= (two Uganda. This enabled many fighters crimes against humanity, amnesty, hundred sixty three thousand Uganda of the LRA to embrace amnesty. and reparations to assist victims of shillings) is given to each resettled In addition, the Amnesty insurgencies. ex-combatant to help transport him Commission continues to engage A National Transitional or her back to the community she/he in dialogue and reconciliatory Justice Policy and Law would came from prior to joining rebellion meetings between ex-combatants and therefore be a better option for against the Government. communities and in the provision facilitating reconciliation, for the of psychosocial support to enable rehabilitation of victims, and for Re-integration peaceful co-existence. the handling of reparations in a This involves provision of life skills coordinated manner that would through training and provision of Challenges enhance nation building. tools and inputs. This process started The Amnesty Act is limited We are all looking forward to the in the financial year 2009/2010. Close in scope in addressing other day a National Transition Justice Bill to 16,000 ex-combatants and victims requirements of post-war conflicts would be passed into law. JLOS have been re-integrated through and the role of stakeholders such training in skills, provision of tools as traditional institutions. Mr. Nathan Twinomugisha is the and inputs. The life skills include: Stigmatization is still common Chief Legal Advisor at the Amnesty with some returnees (especially Commission, Ministry of Internal Affairs. www. jlos. go. ug Special edition on Transitional Justice 43 Reparations A Path to Reparations for Victims of Gross Human Rights Violations in Uganda

By Sarah Kasande Kihika

It has been over a decade since the end of active armed conflict in Northern Uganda. However, the impact of this war persists, particularly in the lives of victims who have not received any form of reparations from the Government. In addition to the widespread human rights violations, the war in Northern Uganda led to the destruction of vital infrastructures, such as schools, health facilities, and roads. It caused substantial material losses for the population in the affected areas.

he Uganda National Government of Uganda’s Household Survey 2019 Transitional Justice of 2016/2017 Policy acknowledges that found a 33 percent reparations are integral Tpoverty level in the north, to the recovery and significantly higher than reintegration of victims, the national average of 21.7 stipulating that “the percent. Government shall establish The 2007 Juba Agreement and implement a reparations on Accountability and program for victims affected Reconciliation between by conflict. In doing this, the Government and the the Government shall Lord’s Resistance Army consider interim, short term (L.R.A.) recognized the reparations.” need for reparations that Reparations are sets of “may include a range measures that provide of measures such as redress to victims of gross rehabilitation, restitution, violations of international compensation, guarantees human rights law and of non-recurrence and other serious violations of symbolic measures such international humanitarian as apologies, memorials, law. Reparations seek and commemorations. to give recognition and The Agreement provides acknowledgment for rights that priority shall be that have been trampled, given to members of for harms suffered, for vulnerable groups.” The indignities endured to Agreement further states restore the victim to the that reparations may be situation which would, in collective or individual all probability, have existed and may be ordered as if that violation had not part of the penalties and been committed. They also sanctions resulting from promote reconciliation accountability proceedings. between victims and Appropriate reparations perpetrators and restore for children are also trust in the Government. identified. The The State has a duty to provide reparations due to the acts or omissions of its officials, which constitute gross violations of international human rights law or serious violations of international humanitarian law. A State is also

Sarah Kihika Kasande 44 Special edition on Transitional Justice www. jlos. go. ug Reparations obliged to provide reparations if it fails to Who is entitled to reparations? other transitional justice measures. take reasonable steps to protect its citizens’ According to The U.N. Basic Principles The initial step in implementing a human rights from being violated. and Guidelines on the Right to a Remedy reparations program is the identification Non-state perpetrators of serious crimes and Reparation, Reparations should and categorization of victims. Given are also liable to provide reparations to be made to victims who have suffered the limited resources, victims should be victims of their violence or human rights physical, mental and psychological harm categorized based on their vulnerability violations. The reality is that no such or economic loss due to gross violations of and the seriousness of the violations reparations are likely to be made because International Human rights law or serious committed. Uganda has many vulnerable most of the non-state perpetrators do not violations of International humanitarian victims in need of specialized or urgent have the capacity or resources to provide law are entitled to reparations. “Victims” care. Vulnerability may arise from an reparations. In such circumstances, the may also include the immediate family or illness or disability, resulting from State bears the responsibility to deliver dependents of the direct victim regardless mutilation, burning, gunshot wounds, reparations to all victims. Aside from of whether the perpetrator of the violation shrapnel injuries, beatings, sexual the value of solidarity, it makes great is identified or has been convicted. violence, including trauma. These may good sense in terms of the objectives of include child mothers, families of the accountability and transitional justice that Implementing Reparations programs disappeared, child-headed households, the Government steps in where non-state Reparations can be administered orphans, street children, traumatized actors are unwilling or unable to make individually or collectively and can children, widows, female-headed reparations for which they are liable. be material or symbolic. Material households, persons with disabilities, The provision of reparation confirms the reparations are often in the form of service persons living with HIV/AIDS, and the State’s obligation and commitment to packages, reconstructive surgery for elderly. When delivering reparations, victims, their families, and communities the war wounded, education support, three requirements will need to be to redress the harms suffered and restore access to health care services, and cash balanced: (1) Reparations should provide trust between citizens and the State. or non-cash projects, among others. something meaningful, symbolically and Symbolic reparations can include official materially, to victims; (2) The State must The legal basis for reparations acknowledgment and apologies, naming have a real capacity to provide reparations Under international law, victims of of public places, proper (re)burials, and fulfill whatever promises it makes human rights and humanitarian law identification of the dead and missing, and to victims; and (3) Reparations should violations have an established right to the provision of information on those who encourage reconciliation, specifically by an effective remedy. The elements of are still missing, and commemorations and not increasing grievances or divisions the right to reparations are outlined memorials. The two forms of reparation between different groups in society, while in the 2005 U.N. Basic Principles and are complementary and will realize their guaranteeing a perception of legitimacy. Guidelines on the Right to a Remedy and purpose more effectively when linked to To provide comprehensive reparations Reparation for Victims of Gross Violations for victims, Uganda will have to establish of International Human Rights Law and a coherent legal and policy framework International Humanitarian Law (U.N. When delivering that should establish a reparations fund Basic Principles). According to the U.N. and an independent institution legally Basic Principles, victims of human rights reparations, three mandated to implement reparations. It is violations have the right to: requirements will need to also of utmost importance that victims can equal and effective access to justice; be balanced: participate and influence the design and adequate, effective, and prompt implementation of reparations programs. reparation for harms suffered; and access to relevant information Reparations should Conclusion concerning violations and reparation provide something Planning and implementing a mechanisms. reparations program is a long and The U.N. Basic Principles outline the 1 meaningful, challenging process because of the following five forms of reparations: (1) symbolically and many political, practical, and financial restitution: restoration of a victim’s rights, materially, to challenges. But these challenges can be property, and citizenship status; (2) victims; identified and anticipated. The Ugandan rehabilitation: psychological and physical Government must work within a limited support; (3) compensation: provided budget and respond to many other for economically assessable damage The State must priorities. Not everyone would receive proportional to the gravity of the violation; have a real what they want or expect. The number of (4) satisfaction: acknowledgment of 2 capacity to provide victims who would demand reparations guilt, apology, and construction of reparations and and the extent of their economic loss, memorials; and (5) guarantees of non- fulfill whatever physical harm, and emotional suffering repetition: reform of laws and civil and promises it makes may be too great to be addressed by political structures that led to or fueled to victims; and reparations alone. The Government will violence. Effective reparations should be also have to consider other transitional “proportional to the gravity of violations justice approaches to satisfy the justice and harms suffered.” Reparations demands of victims. JLOS The Right to reparation is also contained should encourage in regional conventions, including the reconciliation, Sarah Kasande Kihika is the Head of Office African Charter on Human and People’s specifically by for the International Centre for Transitional Rights. In Uganda, it is covered in various 3 not increasing Justice (ICTJ) in Uganda provisions of the constitution, the Juba grievances or Peace Agreement on Accountability and Reconciliation, and the recently approved divisions between National Transitional Justice Policy. different groups in society, while guaranteeing a perception of www. jlos. go. ug legitimacy Special edition on Transitional Justice 45 ICTJ

International Centre for Transitional Justice (ICTJ) ICTJ's Role in Uganda’s Transitional Justice Process

ince 2005, the International Centre for Transitional Justice (ICTJ) has worked to support Uganda’s efforts to build peace by securing Sthe dignity of the victims of conflict, particularly women and young people. It has also provided technical advice to ongoing efforts to hold the perpetrators accountable. Children Born of War and their Mothers: In 2015, ICTJ conducted an assessment of the situation of children born to women who had been abducted by the Lord’s Resistance Army (LRA), and forced to marry LRA fighters. On returning from captivity, these women and their children often face social stigma, rejection, and inadequate access to education, healthcare and other services. ICTJ’s assessment identified the reparative needs of this marginalized population and suggested concrete ways for the national and local governments to take steps to redress the violations. ICTJ continues to work with victims’ organizations dedicated to seeking justice for this population, and produced the film titled, “I Am Not What They Think I Am,” which explores the unique challenges the women and their children face. Human Rights Documentation Project: In 2015, the Uganda Human Rights Commission (UHRC) initiated a Human Rights Documentation Project (HRDP), the first official state process to record violations committed between 1986 and CTJ dialogue commemorating the International Justice Day on 17th July 2019 2007. ICTJ is a member of the Advisory Committee of the HRDP, providing technical assistance and capacity support their concerns to State actors. National Transitional Justice Policy: to the UHRC and HRDP technical team. Support to the International Crimes ICTJ offered extensive technical assistance It also facilitates collaboration between the Division: The International Crimes to JLOS to support the formulation UHRC and civil society to ensure that the Division of the High Court of Uganda of an effective, integrated and victim- project reflects victims’ priorities, and that was established in 2008 to investigate and centered national transitional justice victims participate meaningfully in it. prosecute international and transnational policy framework. ICTJ also facilitated Strengthening the capacity of victims crimes such as crimes against humanity, the involvement of a broad range of and civil society: ICTJ has provided war crimes, genocide, terrorism, piracy stakeholders in the policy development technical assistance and capacity building and trafficking in persons. ICTJ has process. to civil society organizations and victims’ offered judicial training and exchange, and Research ICTJ has conducted research groups in Uganda. As a result of these provided expert advice on a range of issues and studies on a range of topics including interventions, different civil society groups including amnesty, witness protection, reparations, gender justice, truth seeking have been able to engage and mobilize victim participation and outreach. Most and complementarity. These studies are around different transitional justice issues recently, as a member of a special task force aimed at informing policy development and contribute to the development of the formed by the ICD and from Advocat San processes at the national level, drawing transitional justice process. ICTJ works Frontiers, ICTJ offered technical advice from comparative experiences from other with victims’ organizations to build their to support the development of the ICD’s contexts, as well as victims’ perspectives capacity to advocate for justice, and creates Rules of Procedure and Evidence. and priorities on truth seeking and platforms for victims to interact and voice Support to the development of the reparations. JLOS

46 Special edition on Transitional Justice www. jlos. go. ug Pictorial

Chief Justice Alfonse Chigamoy Owiny - Dollo (left) and the Principal Judge Justice Dr. Flavian Zeija at the Commissioner Grace Ocitti of the Amnesty launch of the 2019 / 2020 JLOS Annual Report during the 25th Annual JLOS Review on 26th November 2020 Commission hands over bicycles to excombatants who were granted Amnesty.

Mr. Kanyamunyu kneels before Acholi elders Moses Baluku (4th from left) with colleagues at the memorial monument which is at the entrance of St. John’s Seminary in Kiburara, Kasese District

Dominic Ongwen The President of Uganda H.E Yoweri Kaguta Museveni receiving a flag from the late Major General Bamuze of West Nile Bank Front www. jlos. go. ug Special edition on Transitional Justice 47 Pictorial

Screening session in Uganda at the beginning of the Ongwen H.E Yoweri Museveni shakes hands with a former LRA commander trial in 2016 by the International Criminal Court

African leaders take part in a family photograph at the African Union Headquarters in Addis-Ababa, Ethiopia on February 09 2020

A court session at the International Criminal Court in The Hague

48 Special edition on Transitional Justice www. jlos. go. ug

The Justice, Law and Order Sector Secretariat Ministry of Justice and Constitutional Affairs Level 3, Baumann House | Parliament Avenue P.O. Box 7183, Kampala Uganda Phone: +256(414)-253207 Email: [email protected] Website: www.jlos.go.ug