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The Question of Amnesty and the Transitional Justice Agenda in Uganda

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.