Imagine being called to a scene where a woman has just been bitten by a snake. Imagine that you have two options - either run into the bush and start hunting the snake down, or rushing the lady to the nearest health clinic before or after you have administered first aid. Of course there is no knowing what option many will choose – will it be option A? Option B? Both? Or will some even go ahead to become innovative or ingenious by Option C probably calling out for help with the snake while attending to the injured lady? The last option seems to be the preferred reading of the Juba Peace Process 2008.
For all its shortcomings, the Juba Peace Process was a breath of fresh air in the minds and livelihoods of many people who had suffered for long at the hands of the Lords Resistance Army insurgency. The parties at Juba however, not only sought to attend to the needs of the victims of the insurgency, but also sought the help of International Partners to do so. The lobbyists that participated and continue to participate in the aftermath of Juba came from all angles – local, international, religious, traditional, economic, political, NGO world, UN, name it. As such it can be fairly asserted that Juba was an example of international justice at its best.
Agenda Item 3 in which I am most interested was a true representation of what happens when ideas come together to forge the way forward. Parties agreed to promote traditional justice mechanisms (TJMs) as practised in the communities affected by the conflicts albeit with their 'necessary modifications'. This was to be 'a central part of the framework for accountability and reconciliation.' Therefore, whereas Juba acknowledged that “formal criminal and civil justice measures (would be) applied to any individual who (was) alleged to have committed serious crimes or human rights violations in the course of the conflict,” it did not hamper the use of TJMs. This is because Juba had been lobbied to realise that in finding sustainable solutions to the LRA war, there was need to end the ‘immense pain and suffering of the victims, as well as the ‘socio- economic and political impacts of the conflict.' The call was therefore for a nuanced understanding of Justice – one which not only answered the demands for retribution, but also sought to heal the wounds of the past, reconcile warring tribes, reconcile the government and 'its' people, compensate those who had suffered, facilitate the medium for truth, healing and memory, while attending to the psychological needs of the victims who often doubled as perpetrators. In essence challenge the notion that peace and justice are unable to walk hand in hand.
It is for this reason therefore that one wonders why the trial of the former rebel commander Thomas Kwoyelo has taken its current path. Kwoyelo is alleged to have been abducted by the LRA rebels and then recruited into their ranks. He was arrested in the DRC in 2009 and his trial started on the 11th of July 2011 at Gulu. He however challenged his trial on the grounds that he applied for Amnesty which was denied although other rebels have been granted amnesty before and after his application was made. The Constitutional Court agreed with his arguments and ordered his release. Kwoyelo however remains in custody since the State insists that he has other 'civil crimes' he committed which were not covered by amnesty.
The aforementioned actions by the State are self defeating. It is possible that international partners will look at non – prosecutorial justice as a form of impunity, but the examples of South Africa, Mozambique Rwanda and Sierra Leone should show that judicial remedies come in all shapes and sizes. This is the opportune time for the nation to test the feasibility of Juba and give credence to the long sleepless nights which the negotiating teams spent in the Garamba forests of the DRC. It is expected that many will argue that since Joseph Kony as leader of the LRA failed to sign the comprehensive peace Agreement, then the rest of the agreements are nugatory. However, there is nothing in law or fact that prohibits these agreements from being performed since they were executed by duly authorised officers whose principals have not reneged on the authority they bestowed. More over, former rebels continue to be granted amnesty by the Uganda Amnesty Commission ( inspite of the fact that the Attorney General argued that its own Act is unconstitutional) and formerly abducted children continue to return home where attempts are made at rehabilitating and reconciling them. Equally, the various programs such as the Northern Uganda Rehabilitation Action Plan which is supervised by the Office of the Prime Minister as assisted by other NGOs continue to be performed – albeit with challenges.
All these show that there is a willingness by the State to perform its obligations under the Agreements through the mainly national institutions. Although the government has controversially continued to pursue its military campaign against the LRA, evidence has always shown since 1986 that the results have been a backlash on the populations as seen in the December massacres in DRC after the failed 'Operation Lightning Thunder.' The death toll, forced migrations, abductions as well as the high numbers of injured people in the DRC, Central African Republic as well as the South Sudan all seem to indicate that there is need to re-think the merits of this military campaign since it has now become a regional problem. However, that is a discussion for another day.
However, it is the TJMs that the government seems very reluctant (or unable?) to use. For example, Kwoyelo has remained in custody in spite of the decision of the Constitutional Court and the International Crimes Division of the High Court of Uganda setting him free. IIn so doing, the State ignores its obligations under Juba which calls it to use 'alternative justice mechanisms' which include ‘customary processes of accountability’ as mentioned in the fourth Preamble to Juba. It is doubtful that a successful prosecution for other 'civil crimes' for which Kwoyelo is held is likely. One can only wait to be proven wrong since courtroom cases – with all their complexities- tend to have a life of their own. The government should instead facilitate the processes that will enable traditional justice mechanisms to take place as prescribed by Juba. Kwoyelo is arguably the most viable opportunity for the other arm of Juba to be used especially in light of the increased criticisms by African governments of the International Criminal Court. Kwoyelo is a unique case in which a former abductee' (victim) turned rebel (perpetrator) gets to test the feasibility of traditional justice systems in helping to achieve a holistic and heterogeneous form of justice.
These mechanisms are said to be all inclusive – they are diverse, reconciliatory, retributive, compensatory, rehabilitative and help in achieving social reconciliation. Kwoyelo's case would therefore be the first opportunity to learn about these mechanisms as well considering their 'necessary amendments' as alluded to by Juba. In light of the fact that Kwoyelo was allegedly abducted as a child by the LRA and rose through the rebel ranks, it will be interesting to see how the DPP successfully prosecutes him for a crime he committed while he was not in a state of rebellion. The Government rather to give a clear signal that its commitments to Juba were real and not Realpolitik. It should make it clear to those rebels who are still in the forests of Garamba that it is still committed to having a peaceful and holistic resolution to the conflict and that they should not give up their bid to escape the clutches of Kony and the LRA. However, should the government miss this opportunity, it will have taken confirmed that Joseph Kony was right after all – that the Government of Uganda does not honour its word.
The snake of atrocities has bitten Uganda. Help was sought and obtained. We ought now to treat and save the lives of the injured victims -using all possible means instead of only insisting on looking for the snake in the thickets.
The writer is a doctoral researcher on international criminal justice