In 2008, the Justice Law and Order Sector (JLOS) established the Transitional Justice Working Group (TJWG), a special policy making entity to develop a national policy and law on transitional justice for Uganda.The national policy is intended to give effect to the commitments made in the Agreement on Accountability and Reconciliation (Annexure to the Juba Peace Agreement), which calls for the promotion of formal and informal accountability mechanisms to address the crimes committed during the twenty-year long conflict.
The Agreement provides the overarching legal framework for the process of developing a transitional justice policy in Uganda. Unique features of the Agreement include: an emphasis on victims’ rights and participation, special attention to the situation of women and children who were affected by conflict, and the promotion of a holistic approach to justice, highlighting a complementary and harmonized approach to justice through the adoption of both formal and informal mechanisms to promote justice and reconciliation.
In order to achieve this, a number of specialized Sub-Committees were established within the TJWG to undertake research in specific areas, including: formal justice; traditional justice; truth-seeking; and integrated systems (developing an integrated approach to justice & accountability).
JLOS consultations in the area of formal justice were conducted in 2008 and led to the adoption of the International Criminal Court Act. The ICC Act reflects Uganda’s commitments within the Rome Statute creating the International Criminal Court. Namely, the ICC Act allows for the prosecution of war crimes, crimes against humanity and genocide within national courts.
The International Crimes Division of the High Court is charged with the duty of prosecuting war crimes and other crimes of a serious nature.
In 2011, JLOS undertook national consultations in the area of traditional justice and truth-telling. The report is expected to be adopted and launched by mid-2012 and will contribute significantly to the elaboration of the national policy and law on transitional justice. The report will make recommendations on the use and role of traditional justice and truth-telling for conflict related crimes.
At present, the TJWG is taking forward a review of the Amnesty Act. Conflicts in the law have come to light in the recent case of Uganda v. Thomas Kwoyelo, HCT-00-ICD Case No.0002 of 2012, which if not addressed will continue to frustrate the pursuit of justice against key persons responsible for war crimes. Given that the Amnesty Act (2000) is due to expire in May 2012, now is an opportune moment to conduct an assessment of the current role, purpose and impact of the Act, in contrast with its intended purpose at the time of its original enactment over ten years ago.
The review is being informed by a series of consultative meetings and specialized field studies on Amnesty. The consultations capture the views of community members, religious and traditional leaders, local government, parliamentarians, academics, civil society organizations and locally-based victims groups, as well as legal experts and transitional justice specialists. A variety of views have been expressed and captured for deliberation. Key considerations for the review include:
(1) The conflict of laws between Amnesty and co-existing national laws;
(2) The conflict of laws between Amnesty and international law obligations;
(2) The role and purpose of the Amnesty Act (past and present);
(3) The effects of the Amnesty Act;
(4) Community views and experience;
(5) Gender implications/Impact on women; and
(6) Amnesty within Uganda’s national transitional justice policy.
The review process is still currently underway, yet findings from the consultations revealed a consensus that amnesty in its current form cannot be sustained because it does not cater for accountability of crimes committed, either through formal or informal processes, and it does not adequately enable reintegration of reporters.
Further, there was strong support for the adoption of additional transitional justice mechanisms to promote truth-seeking and reparations, which were seen to be capable of delivering meaningful justice to victims and war-affected communities.
In most cases, there was agreement that Amnesty has outlived its originally intended purpose of promoting the end to hostilities, however there was reluctance by some to do away with Amnesty completely, if only to give the ‘captive’ youth still in the bush an opportunity to return home.
As such, the review will need to take into consideration all of the views and concerns expressed and propose the best way forward that responds to community views, the local context and expressed need for justice and accountability, while is at the same time remaining legally sound.
In conclusion, the future of amnesty is intimately linked to the national transitional justice process underway in Uganda. As the TJWG develops the policy on transitional justice, amnesty will be coupled with other mechanisms that seek to promote justice, accountability and reconciliation that is context-relevant and responsive to victims’ rights and interests.
As such, the consultative process for developing a relevant policy has already begun. JLOS through its TJWG is committed to continuing the engagement with key stakeholders, civil society and victims’ organizations, to achieve these goals.
On May 18, 2012 the JLOS Leadership and Steering Committee met to deliberate on the future of the Amnesty law in anticipation of its expected expiry on May 24, 2012.The Chair of the Transitional Justice Working Group presented the findings of the amnesty review process, which the Transitional Justice Working Group (TJWG) had undertaken since early 2012.
The Chair presented the various options for the future of the amnesty law and the final proposal for the way forward for consideration. The Attorney General presented his position on the matter after which the members discussed both proposals. After consideration of the various options, the final TJWG proposal and the AG position, it was decided by consensus that:
1. Part II of the law should be allowed to lapse by May 2012, as per the Amnesty (Amendment) Act, 2006 (Insertion of section 16);
2. Allow the Amnesty Commission to maintain its activities in the area of reintegration and support to reporters for an additional 12 months; and,
3. Expedite the adoption of the national transitional justice policy for Uganda, within 12 months, from May 2012; and,
4. Adopt a new law to take forward a truth-seeking process that complements traditional justice practices. The body can incorporate a conditional amnesty for lesser offenses in exchange for the truth; and
5. Establish a victim assistance program, especially for victims suffering from serious physical and mental injuries and illnesses.
This decision was communicated to the relevant Ministers for consideration. On May 23, 2012, the Cabinet of Ministers met and decided to extend the Act with the lapse of Part II of the law.
The Amnesty Commission will continue its reintegration activities with reporters for one additional year. The statutory instruments were subsequently signed, and gazetted on June 1, 2012.
By Edgar Kuhimbisa | Published: May 19, 2012
On May 23, 2012, under statutory instrument No. 34 of 2012, the Minister of Internal Affairs, Eng. Hillary Onek (M.P) declared the Lapse of operation of Part II of the Amnesty Act Cap. 294, by virtue of section 16(3) of the Act. The Minister also under Statutory Instrument No. 35 of 2012 extended the expiry period of Part I, III, and IV of the Amnesty Act Cap. 294 for a period of 12 months by virtue of Section 16(2) of the Act.
The declaration of Lapse of Part II of the Amnesty Act is legal. It is based on Section 16(3) of the Amnesty Act( as amended in 2006) which provides that; “ The Minister may by statutory instrument, declare the lapse of the operation of Part II of this Act”.
What are the implications of the Declaration of Lapse of Part II of the Act?
By declaration of the Lapse of Part II of this Act, Amnesty in Uganda has ceased. Hence it is non existent. Before its Lapse; Part II of the Amnesty Act concerned itself with provisions of the law relating to the grant of Amnesty as well as the procedures for the grant of Amnesty.
According to the then Section 2 of the Amnesty Act; An amnesty was declared in respect of any Ugandan who at any time since the 26th day of January, 1986, engaged in or was engaging in war or armed rebellion against the Government of the Republic of Uganda by—actual participation in combat; collaborating with the perpetrators of the war or armed rebellion; committing any other crime in the furtherance of the war or armed rebellion; or assisting or aiding the conduct or prosecution of the war or armed rebellion.
This meant that persons granted amnesty through the issuance of amnesty certicates, would not be subjected to prosectution or any form of punishment for the participation in the war or rebellion.
The Current status of the law is that; from the 25th May 2012 (day on which the Law took eftect), any person enagaging in war or armed rebellion against the Government of Uganda, shall if investigated be prosecuted and punished for such crime if found guilty.
What is the implication for those already issued Amnesty Certificates?
It is important to note that; those already issued amnesty certificates are still protected by the law. According to Article 28(5)(f) of the Constitution of the Republic of Uganda; “ No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence” THEREFORE, THEY WILL NOT BE PROSECUTED FOR CRIMES FOR WHICH THEY HAVE ALREADY RECEIVED AMNESTY/PARDON.
What is the Future of the Amnesty Commission?
Part I, III and IV of the Amnesty Act were extended under Statutory Instrument No. 35 of 2012 for a period of 12 months. Part III of the Act, establishes the Amnesty commission, a demobilization and resettlement team, and elaborates its functions among other provisions.
Extension of Part III means that the Amnesty Commission shall continue discharging its duties of demobilization, reintegration, resettlement of reporters, and sensitization of the general public on the Amnesty Law and promote appropriate reconciliation mechanisms to affected communities. All this will be done during the one year extension period.
In short, the Amnesty Commission will continue resettling, demobilizing and reintegrating those reporters/persons who have already received amnesty.
Part IV of the Act provides for the duration of the Act and prescribes for regulations for the resettlement of persons and generally for better carrying out the provisions and principles of the Act.
In March 2009, Thomas Kwoyelo a former LRA (Lord’s Resistance Army) commander was captured by the UPDF (Uganda People’s Defence Forces) in Garamba in the Democratic Republic of Congo. On 6 September 2010, Thomas Kwoyelo was charged by the DPP with various offences under Article 147 of the Geneva Conventions Act before Buganda Road Court where he was committed for Trial before the International Crimes Division.
On 11th of July 2011, he appeared before the International Crimes Division for pleas taking, where his indictment was amended from 12 counts to 53 counts of war crimes under the Geneva Conventions Act, with alternative charges including murder, kidnapping with intent to murder, attempted murder and robbery under the Penal Code Act Cap 120.
All charges were read to him and he pleaded ‘not guilty’. The matter was adjourned for the hearing of preliminary objections. The preliminary objections were heard on the 15th August 2011, where his lawyers requested for a constitutional reference contending that he was indicted for offences for which he qualified for amnesty under the Amnesty Act.
On 16th August 2011, the Constitutional Court heard the Constitutional Reference by the International Crimes Division in the case of Uganda Vs. Thomas Kwoyelo about his application for a grant of Amnesty with respect to his alleged involvement in the commission on International Crimes during the Northern Uganda Conflict between 1993 - 2005.
Issues before the Constitutional Court were:
1. Whether the failure by the Director of Public Prosecutions(DPP) and the Amnesty Commission to act on the application by the accused person for grant of a certificate of Amnesty, whereas such certificates were granted to other persons in circumstances similar to that of the accused person, is discriminatory, in contravention of, and inconsistent with articles 1,2,20(2), 21(1) and (3) of the Constitution of the Republic of Uganda.
2. Whether indicting the accused person under Article 147 of the Fourth Geneva Convention of 12th August 1949 and section 2(1)(d) and € of the Geneva Conventions Act, Cap 363(Laws of Uganda) of offences allegedly committees in Uganda between 1993 and 2005 is inconsistent with, and in contravention of Articles 1,2,8(a) and 287 of the Constitution of the Republic of Uganda, and objectives of III and XVIII(b) of the National objectives and Directives Principles of State Policy, contained in the 1995 Constitution of the Republic of Uganda. Note: this challenge was thereafter dropped by applicant and was not considered by Constitutional Court.
3. Whether the alleged detention of the accused in a private residence of an unnamed official of the Chieftaincy of Military Intelligence(CMI) is in contravention of and inconsistent with articles 1,2,23(2),(3), 4(b), 24 and 44(a) of the Constitution of the Republic of Uganda. Note: This issue was not considered by Constitutional Court.
4. Whether sections 2, 3, and 4 of the Amnesty Act are inconsistent with Articles 120(3) (b)(c) and (d/0 (5)(6), 126(2)(a), 128(1) and 287 of the Constitution. Note: Submission by the Respondent, which the Constitutional Court considered in the ruling on the grounds that “it touched on the legality and constitutionality of an Act of Parliament, under which the applicant was claiming he had acquired a right to be granted amnesty.” (Ruling of the Constitutional Court, Constitutional Petition No. 036/11(REFERENCE) Arising out of HCT – 00 – ICD – Case No. 02/10)
In determining the above issues, the Court made a number of considerations, however it focused its deliberations and delivered its ruling on issues (1) and (4) relating to the equal protection challenge submitted by the Applicant and the constitutionality of the Amnesty Act challenge submitted by the Respondent.
Constitutional Court ruling
On September 22, 2011, the Constitutional Court delivered its ruling in respect to the referral by the International Crimes Division in the case of Uganda Vs. Thomas Kwoyelo. The Court found in favor of the applicant on his equal protection challenge and upheld the constitutionality of the Amnesty Act. On these grounds, the Court ordered the trial against Mr. Kwoyelo to be ceased and ordered his subsequent release. Specifically, the Court made the following conclusions:
Regarding equal treatment before the law:
We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We find so. We order that the file be returned to the court which sent it with a direction that it must cease the trial of the applicant forthwith (Ruling of the Constitutional Court , Constitutional Petition No. 036/11(REFERENCE) Arising out of HCT – 00 – ICD – Case No. 02/10)
Regarding the independence of the DPP:
We do not think that the Act was enacted to whittle down the prosecutorial powers of the DPP or to interfere with his independence…(Ruling of the Constitutional Court , Constitutional Petition No. 036/11(REFERENCE) Arising out of HCT – 00 – ICD – Case No. 02/10)
Regarding Uganda’s international law obligations:
We think her (Principal State Attorney) concerns were addressed by the provisions of the Act, in that not all rebels were granted amnesty, since the Minister can declare some ineligible for amnesty. Ruling of the Constitutional Court , Constitutional Petition No. 036/11(REFERENCE) Arising out of HCT – 00 – ICD – Case No. 02/10)
Implications of the Court ruling
This decision has created serious concern with regard to its implications on the pursuit of justice and accountability in Uganda. In particular, the decision has implications for Uganda’s national and international human rights obligations and its duty to ensure justice for victims of these violations.
1. Uganda’s International law obligations and Foreign Policy
Uganda is a party to several international human rights law treaties binding the State to respect fundamental rights of its people. The International Covenant on Civil and Political Rights, to which Uganda is a party, places a duty on the State party to respect and ensure the rights of all individuals in the Covenant. This duty includes an obligation to adopt measures to prevent the reoccurrence of such acts and to repair victims when their rights are violated.
Specifically, this duty requires the State to promptly investigate, prosecute and punish perpetrators for crimes, to respect due process and to ensure a remedy for the victims. Such obligations apply to State parties, including Uganda, regardless of whether the abuses were committed in peace or war time.
Uganda is further a party to the four Geneva Conventions governing the laws of war, establishing protection standards for civilians and obliging State parties to penalize persons for grave breaches of the treaty.
The Geneva conventions defines grave breaches as crimes: “involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Thomas Kwoyelo was charged under Art.147 of the Geneva Conventions Act, falling within Uganda’s obligations under this treaty.
Uganda is also a party to the Rome Statute, creating the International Criminal Court, and binding State parties to prosecute individuals for genocide, war crimes and crimes against humanity. The ICC is meant to bring charges against “the most serious crimes of concern to the international community as a whole, interpreted to mean a requirement to investigate and prosecute those who bear the greatest responsibility, such as the leaders of the state or organization allegedly responsible for those crimes.
Ratification of the Geneva Conventions and Rome Statute represents an international commitment by Uganda to seek justice and accountability for violations of international humanitarian law and international criminal law. Uganda has further domesticated both of the conventions as part of its national law, making her obliged to respect those provisions. This reinforces Uganda’s good reputation in ratification and domestication of international laws and its duty to apply the law.
International bodies, including the UN Human Rights Council has adopted several resolutions calling on member States for the investigation and prosecution of violations of international humanitarian law in the context of non-international armed conflicts, in countries such as Burundi, Rwanda, Sierra Leone, Sudan and former Yugoslavia.
The trend towards a universal obligation to combat impunity for serious crimes is summed up in a statement by the President of the Security Council, finding that, “The Council intends to continue forcefully to fight impunity with appropriate means and draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and ‘mixed’ criminal courts and tribunals, and as truth and reconciliation commissions,” Statement of the President of the Security Council (June 22, 2006)
Given the international obligation to prosecute war crimes, crimes against humanity and genocide, the enactment of amnesty laws, which prevent the investigation, prosecution and punishment of such crimes, conflicts with this international obligation. Amnesties with this effect are therefore not recognized as a bar to criminal prosecution under international law.
National amnesty laws found to shield perpetrators from prosecution for serious human rights violations and war crimes have been struck down by international courts or overridden for contravening international law principles and State obligations. Statutes for the hybrid criminal tribunals such as the Special Court of Sierra Leone and the Extraordinary Chambers in Cambodia explicitly state that national amnesties for international crimes within their jurisdiction shall not bar prosecution.
International practice by human rights courts and criminal tribunals affirm this rule. The Inter-American Court on Human Rights, has issued a number of rulings on the issue, finding that, “the States cannot neglect their duty to investigate, identify and punish those persons responsible for crimes against humanity by enforcing amnesty laws or other similar domestic provisions.
” The Special Court for Sierra Leone ruled on a challenge to its jurisdiction based on the amnesty clause of the Lome Agreement. Relying on a universal jurisdiction analysis, the court found that it had jurisdiction to prosecute crimes under international law regardless of the domestic legality of the amnesty provisions of the Lome Agreement.
Finally, the International Tribunal for the former Yugoslavia has found that an individual could be prosecuted for torture before an international tribunal even if the action in question had been the subject of an amnesty. The Court focused on the duty to prosecute international crimes over the legitimacy of the amnesty itself.
In sum, blanket amnesties having the effect of protecting all individuals without regard to the nature of the crimes committed, therefore shielding individuals suspected to have perpetrated serious human rights violations and war crimes, contravene a State’s international law obligations. While there is inconsistent practice on amnesty laws amongst States, it is now well established that national laws preventing an obstacle to prosecution for serious human rights violations, crimes against humanity and war crimes violates international law obligations.
This principle is affirmed in the Juba Agreement; “Formal Courts provided for under the Constitution shall exercise jurisdiction over individuals who are alleged to bear particular responsibility for the most serious crimes especially crimes amounting to international crimes during the course of conflict.” (Clause 6.1, Agreement on Accountability and Reconciliation Between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN). This further reinforces Uganda’s commitment to honor its international obligations.
In view of this, the accused, Thomas Kwoyelo was indicted principally for the alleged commission of international crimes as provided in the Geneva Conventions Act.
2. Uganda’s National obligations
The Constitution of the Republic of Uganda, which is the Supreme Law of Uganda, promotes the rule of law and provides for the protection of rights of all individuals, in line with national and international aspirations provided in its National objectives and Directive Principles of State Policy, which state that;
(i) The foreign policy of Uganda shall be based on the principles of promotion of the national interest of Uganda; respect for international law and treaty obligations;
(ii) Uganda shall actively participate in international and regional organisations that stand for peace and for the well-being and progress of humanity. (XXVIII, Foreign policy objectives).
Secondly, the Agreement on Accountability and Reconciliation, signed in 2007, marked a commitment by the parties to pursue justice, accountability and reconciliation for atrocities committed during the conflict in Northern Uganda. A number of provisions in the Agreement clearly call for accountability and the adoption of necessary mechanisms to achieve this goal.
The government has since adopted a number of measures towards the implementation of this Agreement, including the adoption of the International Crimes Bill and the creation of the International Crimes Division of the High Court, with jurisdiction to try international crimes. Key provisions relating to accountability include:
Formal criminal and civil justice measures shall be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict…(Clause 4.1, Agreement on Accountability and Reconciliation Between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN)
Formal Courts provided for under the Constitution shall exercise jurisdiction over individuals who are alleged to bear particular responsibility for the most serious crimes especially crimes amounting to international crimes during the course of conflict.(Clause 6.1, Agreement on Accountability and Reconciliation Between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN)
In order to achieve finality of legal process, accountability and reconciliation procedures shall address the full extent of the offending conduct attributed to an individual……(Clause 3.9 Finality and Effect of Proceedings, Agreement on Accountability and Reconciliation between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN)
The Juba Peace Agreement provides an overarching, national, legal and policy framework for the pursuit of justice and accountability for crimes perpetrated during the conflict in Northern Uganda.
3. Justice for Victims
The armed conflict in Northern Uganda resulted in thousands of victims and displaced persons, notably women and children. Justice may include a wide range of options, such as the right to the right to a remedy, fair trial, right to participate in proceedings that affect them and right to access information concerning proceedings. Article 50(1) of the Constitution of the Republic of Uganda recognizes all these right as expressed; with regard to the right to redress, it states:
Any person, who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for redress which may include compensation.
In post-conflict settings, a victim’s right to access to justice and information about gross violations of human rights and serious international crimes perpetrated against him/her, is particularly protected, and recognized as fundamental to the victim’s recovery and rehabilitation; this duty is embodied in State obligations under the Universal Declaration of Human Rights and the International Covenants on Human Rights.
UN Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights and Serious Violations of International Humanitarian Law is the most recent UN instrument to specify the rights of victims to access to justice and information about violations perpetrated against them.
The right to access to information in the process of redress for victims has been recently recognized by the United Nations Human Rights Council that adopted a resolution in October 2009 providing that, “the public and individuals are entitled to have access to the fullest extent practicable, to information regarding the actions and decision-making processes of Government.”
Further, the Juba Peace Agreement (Agreement on Accountability and Reconciliation) recognizes the suffering of victims in its Preamble and declares its commitment to preventing impunity and promoting redress for victims. Specific provisions relating to victims include:
The Government shall promote the effective and meaningful participation of victims in accountability and reconciliation proceedings, consistently with the rights of the other parties in the proceedings. (Section 8.1)
Victims have the right of access to relevant information about their experiences and to remember and commemorate past events affecting them.(Section 8.3)
As a member of the international community and a party to numerous international treaties protecting victims’ rights, Uganda has a duty to uphold this right.
The victims of the Northern Uganda conflict have for a long time anticipated justice. While the adoption of alternative justice mechanisms are common in post-conflict periods, and sanctioned by the Juba peace agreement (Agreement on Accountability and Reconciliation), criminal justice for serious crimes is a recognized obligation to honor the victims and their suffering. It is questionable at this point, whether justice through formal court proceedings will be realized for the large number of victims by ceasing this trial.
4. Security and social reintegration of the accused and others similarly situated:
What next for Mr. Thomas Kwoyelo? in the event that the decision of the Constitutional Court is effected, it may seem as “freedom” for the accused person, however he may be faced with broader challenges like his security and reintegration in a community that he is perceived to have wronged.
Will the community accept him? Will he pursue other justice processes like traditional justice? In this regard will he willingly seek forgiveness as required by the “Mato Oput” process? Is he willing to tell the truth?
Amnesty v. Accountability: Can these processes be pursued simultaneously?
In 2000, the Amnesty Act of Uganda was first adopted with the intent to end hostilities in the North and to bring warring parties to the negotiating table. The Amnesty Act has since been renewed numerous times and is currently still in effect. Since its establishment, the Amnesty Commission has granted a total of 24,066 certificates of amnesty to ex-combatants.
The Amnesty Act of 2000 provides that:
“Amnesty is extended to all Ugandans who have been involved in insurgency through: (a) actual participation in combat; (b) collaborating with insurgents; (c) committing other crimes to support insurgency; or (d) in any other way assisting others involved in insurgency”. (Section 3(1))
Subsequent amendments have been adopted. The latest amendment in 2006 makes reference to persons who may be found to be ineligible for Amnesty: “a person shall not be eligible for grant of amnesty if he or she is declared not eligible by the Minister by statutory instrument made with the approval of parliament.”
The 2006 amendment does not make reference to the criteria by which individuals may be considered to be ineligible for amnesty, nor does it make the designation of ineligibility of amnesty a requirement by law. Consequently, the power to declare an individual ineligible for amnesty remains at the discretion of the Minister and Parliament.
In effect, amnesty under the Amnesty Act may be granted to any and all those who renounce rebellion and seize hostilities, regardless of the nature of crimes an individual has committed.
In contrast, the Juba peace agreement constitutes a key legal framework on accountability for serious crimes perpetrated during the armed conflict in Northern Uganda. It establishes clear commitments by the parties to the pursuit of justice and calls for necessary amendments of national legislation or the introduction of new legislation and relevant policies to ensure implementation of the agreement. Key provisions on this point include:
The Government will introduce any necessary legislation, policies and procedures to establish the framework for addressing accountability and Reconciliation to any existing law in order to promote the principles under this agreement. (Clause 5.6, Agreement on Accountability and Reconciliation Between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN), and it will,
Introduce any amendments to the Amnesty Act or the Uganda Human Rights Act in order to bring it into conformity with the principles of this Agreement. (Clause 14.4, Agreement on Accountability and Reconciliation between the Government of Uganda and the Lord’s Resistance Army/Movement, JUBA/SUDAN)
In light of the commitments made in Juba and Uganda’s international obligations, the provisions of the Amnesty Act appear to present a challenge to the State’s ability to fulfill its duty to ensure justice and accountability for serious human rights violations, crimes against humanity and war crimes committed in Uganda. While at the time of its adoption, the Amnesty Act was intended to promote peace and encourage the end to hostilities, ten years later, key questions arise about the Act’s relevance in the current context and its impact on Uganda’s national and international obligations. Key issues include: has the Amnesty Act outlived its purpose? Is it still relevant in the current context? Can Amnesty be pursued alongside other transitional justice processes? It is also critical to evaluate whether the Amnesty Act has promoted reconciliation, whether it facilitated the end to rebellion in Northern Uganda and whether it has addressed the victims concerns.
The sector is concerned about the serious implications created by the ruling of the Constitutional Court especially with regard to our own commitments at the Juba Peace process, our international obligations, and our obligations to the victims of crimes. The Juba Peace Agreement marked the end of hostilities and simultaneously launched the transitional justice process in Uganda, in which the Sector is a key player in its effective implementation.
Transitional Justice has since been high on the agenda for the sector. This has been matched by considerable commitment of resources by the Government and stakeholders to the pursuit of justice, as well as notable efforts by the sector institutions to achieve this goal.
This is further demonstrated by the adoption of the International Crimes Bill and the establishment of the International Crimes Division at the High Court in 2008 to pursue accountability and justice for international crimes. As such, the sector is committed to supporting the pursuit for justice, accountability and reconciliation through the adoption of a coherent and integrated transitional justice policy.
The sector believes in due process and the rule of law in the administration of justice and this must be seen to be done in its totality for justice to be realized. Letting the accused person “off the hook” without establishing the extent of his responsibility for the alleged commission of international crimes, denies victims the right to justice and a remedy and prevents the State from fulfilling its duty to investigate, prosecute and punish perpetrators of serious crimes.
Promoting due process and the rule of law constitute important commitments, nationally and internationally, to which Uganda cannot be seen to violate. In this regard, the sector is of the view that that the matters before the constitutional court especially with regard to the constitutionality of the Amnesty Act, in relation to the provisions as listed above need to be critically analysed for the proper dispensation of justice.
At present, the case is on appeal to the Supreme Court for final deliberation and decision.
Finally, the utmost priority of the sector is to ensure effective justice and reconciliation for the victims in the conflict and by using all the appropriate means and mechanisms available to achieve this goal. In this regard, the sector advocates for more sustainable and comprehensive solutions for victims to the conflict, which include;
1. Resettlement and reintegration
2. Justice and Accountability measures, including alternative accountability mechanisms,
3. Peace and Reconciliation measures
4. Access to justice
5. Reparations for victims of human rights violations and mass crimes
6. Victim and witness protection.
These are essential elements to the pursuit of a comprehensive and effective transitional justice process in Uganda.
On Friday, November 11, 2011, Hon. F. Ruhindi, Minister of State for Justice and Constitutional Affairs and Deputy Attorney General delivered the keynote address at a conference held to discuss the role of amnesties on achieving justice and accountability for serious human rights violations. Hon. Ruhindi’s remarks highlighted the country’s dual goal of achieving peace and justice after the war in Northern Uganda. The Hon. Minister referred to Uganda’s national and international obligations to pursue justice and accountability for war related crimes within Uganda’s transitional justice process, suggesting a review of the current mechanisms would be relevant, and expressed support for the dialogue.
The conference focused on the Amnesty Act, adopted in 2000, by providing a history and background to the adoption of the Act; overview of the Amnesty Act and discussion of key provisions; the impact of the Amnesty Act on peace and justice after the war; the effect of the Amnesty Act on gender based crimes committed during the conflict; and international perspectives on amnesties and international law principles and standards. The conference concluded with a discussion on the future of the Amnesty Act; specifically, the participants were asked to express views on whether the instrument required amendments, repeal or should be preserved as is.
The ‘way forward’ discussion led to a number of proposals for amendment to the Act to allow for greater accountability of individuals responsible for atrocities. Generally, participants agreed that the Amnesty Act was insufficient to achieve sustainable peace and meaningful justice for victims after the war. There was overwhelming support for the adoption of additional mechanisms alongside the Amnesty Act, such as a national truth commission and delivery of reparations for victims, in the form of social services and infrastructure.
To close the conference, Ms. Josephine Onya of the Ministry of Internal Affairs represented the Hon. Minister H.Onek, indicating that a revision of the Act would be timely in light of the current context in the region and the country’s move towards justice and accountability for war related crimes.
The conference was organized by the UN Office of the High Commissioner for Human Rights in Uganda (OHCHR), UN Women, and the Refugee Law Project. In attendance were members of the Government of Ugannda, the Justice, Law and Order Sector, international community, academics, civil society organizations and members of war-affected communities, including victims of the conflict in Northern Uganda.
By Edgar Kuhimbisa | Published: November 21, 2011
On 15-16 March 2012, the Justice Law and Order Sector in collaboration with the UN Office of the High Commissioner for Human Rights and UN Women held a “Community Dialogue on the Future of the Amnesty Act 2000” in Kitgum. The purpose of this dialogue was to: Engage in a debate on the Amnesty Act in war-affected communities with a view to understanding community views on the current operation and future of the Act; Discuss the relevance of the Amnesty Act in light of the northern Uganda post-conflict situation and the implications on accountability, justice and reconciliation in Uganda; Reflect on how amnesty interacts with other accountability and justice mechanisms for crimes committed during the conflict in northern Uganda, particularly crimes involving sexual and gender based violence (SGBV).
Specific objectives included, to:
1. Enhance dialogue between civil society, victims groups, local and religious leaders and Government representatives on issues surrounding the Amnesty Act in Uganda;
2. Increase outreach on amnesty, accountability and transitional justice issues to victims, affected groups and the broader community;
3. Provide concrete proposals to the JLOS Transitional Justice Working Group and other decision makers including Members of Parliament to inform their deliberations on the future of the Act.
A wide cross-section of stakeholders were represented, including members of the JLOS Transitional Justice Working Group, members of civil society, community-based groups, local government, traditional and religious leaders, academia, and victims’ groups. Community views and views from women’s organizations and victims groups featured prominently in the meeting.
Plenary discussions centred on the possible options for the way forward: the expiration of the Amnesty Act accompanied by the adoption of other transitional justice mechanisms, such as truth-telling and reparations to promote restorative justice; or the extension of the Act with amendments to strengthen the ‘reintegration’ mandate of the Commission and to harmonize the Amnesty Act with existing mechanisms, national laws (ICC Act) and international obligations and standards. While there was expressed support for both options, there was broad consensus amongst all stakeholders that amnesty alone was insufficient to address the rights, needs and conditions of victims and war-affected communities. While amnesty plays a role in peace building, it must be accompanied by additional measures to promote justice, truth-telling and reparations for victims and their communities, as well as social reintegration of former combatants.
The meeting generated rich debate on the possible options for the future of the Amnesty Act. Key considerations included an evaluation of the current role and impact of the Act and the Amnesty Commission; the national and regional context; community views and the experience of victims; amnesty within Uganda’s transitional justice process to achieve justice and reconciliation; as well as implications on Uganda’s national and international law obligations. Recommendations from the plenary discussions and focused group discussions focused on two possible options: expiration of the Act or extension with Amendment.
A key outcome of the conference will be the publication of a conference report with concrete proposals on the way forward. This report will be presented to the JLOS Transitional Justice Working Group for its consideration during its review of the Amnesty Act. The report will also be used to inform key stakeholders and decision-makers on a recommended way forward on Amnesty in the context of Uganda’s transitional justice process.