Uganda: Amnesty or prosecution for war criminals?
|Publication Date||17 May 2012|
|Cite as||IRIN, Uganda: Amnesty or prosecution for war criminals?, 17 May 2012, available at: http://www.refworld.org/docid/4fba2c412.html [accessed 19 January 2018]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
The arrest of a senior Lord's Resistance Army (LRA) commander has reignited debate in Uganda about what to do with alleged war criminals: let them go, to encourage other rebels to surrender; or prosecute them in the name of accountability and justice.
LRA commander Caesar Acellam Otto, along with other senior LRA commanders, "is responsible for the most egregious violations committed against children in the central African region", according to a 14 May statement by Radhika Coomaraswamy, special representative of the UN Secretary-General for Children and Armed Conflict. Acellam was captured by the Uganda army in the Central African Republic (CAR) on 12 May.
"I am encouraged by the capture of one of the worst perpetrators of child rights violations, and hope that the Ugandan authorities would not apply amnesty but instead bring him to justice," said Coomaraswamy.
Uganda's Amnesty Act of 2000 provides amnesty for any LRA rebel combatants who abandon the group and renounce involvement in the war. However, the Act does not apply to LRA leader Joseph Kony and four of his top commanders who were indicted in 2005 by the International Criminal Court (ICC) for war crimes and crimes against humanity.
About 13,000 LRA combatants have been granted amnesty since 2000, according to the Amnesty Commission's records.
Opinion on the way forward is divided: "It should not be a blanket amnesty to whoever is captured. His case as a person needs more thorough examination and [should be] judged on merit," Ruhakana Rugunda, Uganda's minister for information, communication and technology, said.
Rugunda headed the government team in peace talks with the LRA, which produced several detailed agreements but, because of Kony's repeated prevarications, no final comprehensive accord was ever signed.
Acellam told reporters in Nzara, South Sudan, on 13 May that he would apply for amnesty, Uganda's state-owned New Vision newspaper reported.
"The Ugandan government passed a bill in Parliament of blanket amnesty. So all rebels who left the bush before me were granted amnesty. Why not me? Why should I fear?" said Acellam, who was captured along with his wife, child and a 12-year-old CAR girl.
Acellam's fate will be decided by the Ministry of Justice at an appropriate time, according to Uganda's military spokesperson Col Felix Kulayigye. "We captured him. He is a prisoner of war," he said.
According to Samuel Opio, a human rights lawyer in Kampala, the Amnesty Act is stop-gap legislation favouring only the combatants. "We need to have a comprehensive law that deals with victims issues," he said.
In northern Uganda's Acholi region, which was worst affected by the LRA insurgency, survivors and their families want Acellam tried at the High Court's International Crimes Division .
"These are criminals. He [Acellam ] knows that he committed crimes. He must pay for his crimes and atrocities," said Winfred Laker, a resident of Mucwini in the northern Ugandan district of Kitgum. Laker's sister was shot and killed in an LRA ambush, along the Gulu-Kitgum road in 2003.
"All people who were responsible for committing atrocities in northern Uganda must be tried and punished. There should be no room for impunity," she said.
Arthur Okot who lost a limb in a land mine explosion in Gulu in 2001, said: "This is a time for accountability. I don't support this issue of forgiving these LRA commanders. They have to face the court for the atrocities and crimes they committed in the region for the past two decades... [Acellam] must answer for all the people that they [the LRA] murdered. He was chief of military intelligence."
Court's jurisdiction constrained
The High Court's International Crimes Division was set up in 2008 in line with agreements reached on accountability and reconciliation during the LRA peace talks in Juba, Sudan, to try international law violations recognized by the ICC including genocide, crimes against humanity, war crimes, terrorism, human trafficking and piracy.
But the Division's jurisdiction is constrained by the Amnesty Act, which provides protection from prosecution or to "any Ugandan who has at any time since 26 January 1986, engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda" and who renounces and abandons war.
According to Norbert Mao, a Ugandan politician and lawyer, Acellam's case is no different from that of other rebels.
"[The] Ugandan government knows that [the] amnesty law is very clear. As long as one renounces rebellion, he is entitled to get [pardoned]. Acellam should get amnesty without any delay," said Mao. "He [Acellam] is already appealing to other rebels to surrender. That is a right move, he has abandoned the rebellion… The capture of Acellam weakens the LRA and sends a strong message for them to think twice. He is going to give a lot of information that will makethe LRA more vulnerable."
The LRA is still active in parts of the Democratic Republic of Congo (DRC) and in CAR where it carried out at least 53 attacks between January and March displacing tens of thousands of people.
Some favour amnesty
An analyst who preferred anonymity said: "If Acellam renounces rebellion and applies for amnesty under section 3(2) of the Amnesty Act, then the State Director of Public Prosecution and the Amnesty Commission have an obligation to grant him amnesty upon such fair and equal terms and conditions as it did with other applicants."
According to Stephen Oola, a transitional justice and governance analyst at Makerere University's Refugee Law Project, the Acellam situation exemplifies the role military pressure can play while allowing for high-level defections.
"Let Acellam be given a chance to tell us his story of involvement and build confidence around the peace options to ending the LRA conflict," said Oola.
Meanwhile, religious leaders in Acholi have called for reconciliation and forgiveness. "As religious leaders, we believe in restorative justice not punitive. We believe in restoring broken relationships rather than punishing the offenders," Bishop John Baptist Odama, a member of the Acholi Religious Peace Initiative, told IRIN.
Odama, who called for the establishment of a Truth and Reconciliation Commission, added: "The LRA has destabilized and committed atrocities in the four countries. We need to rebuild the relationships of the affected countries. Dialogue, truth, reconciliation and forgiveness I believe are the best solutions."
The Kwoyelo case
Some analysts are calling for the Amnesty Act to be amended to stop major war crimes perpetrators evading justice.
"I believe a balance should be drawn to accommodate the calls from northern Uganda for reconciliation and forgiveness against the mandate of the state to ensure that crimes do not go unpunished," said an analyst who preferred anonymity.
"[The Amnesty Act] has undermined all efforts of accountability for war crimes and is [a] recipe for impunity among others. Accordingly, the Act, as it is, needs amendment so as to cover the gaps that have been exposed in the constitutional court ruling on Thomas Kwoyelo among others."
Kwoyelo in 2011 became the first LRA mid-level commander to face trial in a domestic court for crimes committed during the LRA insurgency. Captured in 2008 by Ugandan forces in the DRC's Garamba region, Kwoyelo was accused of commanding rebels who murdered civilians in various northern Uganda locations.
While in detention, Kwoyelo renounced rebellion and sought amnesty but his amnesty request has not been granted. In late January the constitutional court said Kwoyelo should be released, but he remains in Luzira prison.