Kony 2012: The Complex Kaleidoscope of Transitional Justice in Uganda

[Michael A. Newton is Professor of the Practice of Law, Vanderbilt University Law School]

The Kony 2012 campaign had the laudable goal of increasing public awareness in order to aid the search for justice and accountability in the wake of LRA atrocities. In fact, the worldwide attention had the paradoxical effect of demonstrating the lamentable reality that the optimal pathway towards authentic justice for LRA victims in that setting is neither simple nor self-obvious. This is true for a number of reasons which I shall summarize.

Firstly, the complexity of factors in Uganda and the overriding imperative for ending two decades of disastrous conflicts have led to an artificial dichotomy in debates between the poles of peace versus justice, local versus international responses to atrocities, and the population’s desire for forgiveness and reconciliation versus punishment. These artificial polarizations have clouded debates about the most appropriate ways to address conflict and its aftermath, implying either/or choices when combinations of these elements often better reflect popular perceptions and lead to more effective practical strategies. The creation of a modern holistic system of accountability for international crimes should, as framed by the aspiration of a leading Ugandan lawyer, serve as the interface of the ICC and domestic processes that “link together in an inseparable synergy the restorative/traditional, official and international justice mechanisms.”

In other words, an authentic sense of justice that benefits from a sense of local level ownership is actually a mosaic of prosecutions, accountability, reconciliation, reparations, institutional reform, reintegration, truth-telling, and (it must be also be emphasized) retribution against those recalcitrant leaders that do not want to share a revitalized sense of community peace and stability. The precise contours of these linkages remain under debate in Uganda, and victims groups tell me that their most pressing needs revolve around psychosocial counseling and educational/behavioral deficits. I shall leave discussion of the traditional tribal methods used in Uganda for another posting, but vast numbers of former child soldiers have been reintegrated into communities and family systems.

Preceding the delicate negotiations in Juba and the involvement of the ICC via the self-referral, the Ugandan Parliament adopted an Amnesty Act on January 21, 2000 providing unconditional amnesty for anyone who had engaged in armed rebellion against the government since the “26th day of January 1986” and who agreed to renounce and abandon such rebellion.   The acts subject to amnesty were broadly framed and the unconditional declaration that “amnesty means a pardon, forgiveness, exemption or discharge from criminal prosecution or any other form of punishment by the State” was imbued with an intentional element of constitutionally derived solemnity.  Article 28(10) of the Ugandan Constitution states that “No person shall be tried for a criminal offense if the person shows that he or she has been pardoned in respect of that offense.”

I leave the larger issues of child soldiers and their reintegration into village life after they either escaped or accepted amnesty  to Mark Drumbl’s capable hands (and recommend his most readable and well researched recent book on the topic).  It is worth noting that of the 26,192 persons who have been issued amnesty certificates as of the last data I obtained, approximately 50 % have been below the age of 23, with nearly a quarter of the total below the age of 17.  Despite the referral of the situation to the ICC by the Ugandan government, the Court has no jurisdiction for crimes committed by persons below the age of 18 (Article 26 of the Rome Statute). Moreover, the International Crimes Division established by the Ugandan Parliament just prior to the Review Conference held in Kampala has no jurisdiction over acts committed prior to June 25, 2010.  But what of child soldiers who grow into hardened killers? Leaders of the rebellion?

The case of Thomas Kwoyelo illustrates the current difficulties facing the International Crimes Division in Uganda. Though Kwoyelo was forcibly abducted on his way to school in 1987and became a child soldier at the age of 13; some 21 years later, he was captured by Ugandan forces in the jungle and detained for his role as relatively senior LRA commander. The Ugandan Constitutional Court dryly noted that on the “12th January 2010, the applicant, while in detention at Upper Prison Luzira made a declaration renouncing rebellion and seeking amnesty.”

After being charged by the Director of Public Prosecutions, Kwoyelo appealed for his amnesty certificate, despite the fact that he never voluntarily relinquished hostilities and came out of the bush to return to a peaceful existence. On the basis of evidence that other persons had been granted amnesty during the same period, and based on the finding that the Prosecutor “did not give any objective and reasonable explanation why he did not sanction the application of the applicant for amnesty or pardon under the Amnesty Act, like every one else who renounced rebellion,”  the Constitutional Court declared the prosecution “null and void.”  Thus, the domestic amnesty process in Uganda is non-discretionary, non-waivable, and non-derogable. Though permitted to do so by statute, the Ugandan Parliament has not enacted legislation prohibiting named individuals from seeking amnesty. That means that Kony could get amnesty tomorrow if he were captured and claimed amnesty under domestic law…and you didn’t see that in the video, did you?