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14 September 2006: Justice At A Glance In Uganda: Mato Oput Versus ICC
... Tired of war, most people want the rebels forgiven. According to them, maintaining a tough stance on the rebels and fighting them has only prolonged their suffering. "We are in a mood of forgiveness. Let the ICC [International Criminal Court, which has indicted LRA leaders on war crimes] not spoil our party preparations," Herron Okello, 30, a leader at Unyama camp for internally displaced people (IDPs) told IRIN. The ICC has insisted that Kony and four other LRA leaders must face justice, but the Ugandan government says it will convince the Hague-based court to lift the indictment ... (1)
Commentary
Very often, when a country wishes to move from war to peace, the search for justice may include trials in an international or national court of law as well as other non-punitive approaches. In recent years there has been a growing demand from around the world for transitional justice mechanisms, such as truth commissions. Tina Rosenberg suggests that “…a country’s decisions about how to deal with its past should depend on many things: the type of war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for war to reoccur, the abruptness of the transition, and the new democratic government’s power and resources.” One may add national “interests”.
Last year in October the International Criminal Court (ICC) issued warrants of arrest for Kony and four other LRA commanders, accusing them of carrying out massacres, mutilating their victims and kidnapping thousands of children as fighters and sex slaves. Now, a year on it finds itself at odds with Uganda's government, which first referred the case to it, but is now offering the rebels amnesty and protection if talks succeed. While the International Criminal Court (ICC) appears to present a historic opportunity for the international community to take a stand against large-scale violations of human rights, it is realistically not able to address situations in which national courts are unwilling or unable to prosecute perpetrators. Such is the case in Uganda: under the terms of a truce agreed to last week, the government has offered amnesty to LRA leaders, including those hunted by the ICC, if they abandon their hideouts and assemble at two Sudanese camps within the next three weeks to thrash out a final deal.
Peter Onega, the chairman of the Uganda Amnesty Commission (UAC), a statutory body set up by the government, has claimed that the decision by the international court has left their work in "total confusion". He stated further, that "the statute establishing the ICC overrides the national laws and the court may decide to issue other warrants of arrest for people we have even issued amnesty to. Where does this leave the amnesty statute, where we derive our mandate.... the warrants would scare away willing rebels and frustrate the commission's efforts to negotiate for ex-rebels' return.”
The ICC now faces a dilemma - should it try to engineer their capture and possibly put negotiations at risk, or abandon its founding principal that there must be no immunity for the very worst crimes?
Furthermore, among other factors the ICC needs to consider are that there are temporal and other jurisdictional limitations on what cases they can hear. Alternative mechanisms can be considered. In Uganda there is a trend to use the traditional form of justice called Mato Oput, and this may be appropriate for Kony’s case. The problem however, is to test if this Mato Oput mechanism implies good faith. Is the effort designed to generate more truth, more justice, reparations, and genuine institutional reform? If so, it is welcome. If the objective is to evade the State and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield certain perpetrators (Kony and others). In this hypothesis, the process will violate the international law and will not be in the interest of justice and society as a whole.
The answer should be found in the design of the process itself, and also in the degree of participation, consultation, and transparency that surrounds this Mato Oput mechanism.
Joseph Yav Katshung, African Security Analysis Programme, ISS Pretoria
1. Uganda: Balancing forgiveness with justice: IRIN
