Uganda's success in lowering its HIV/AIDS level, lauded as a rare African achievement, could be unravelling. The latest UNAIDS statistics show rising prevalence, and questions are being asked about the government's commitment to fighting the epidemic. The 2006 UNAIDS epidemic update revealed that Uganda's prevalence rose marginally to 6.7 percent in 2005.

A military tribunal has been appointed to probe allegations of abuses by Ugandan soldiers during a forced disarmament programme in which 55 people, including women and children, were killed, a senior official said on Friday (1 December 2006).

UNICEF in Uganda, in view of the continued violence linked to the ongoing process of disarmament in areas of northern Kotido District, expresses its serious concern about the impact of escalating insecurity on the lives of children and families in those locations.

The International Criminal Court (ICC) has indicted LRA leader Joseph Kony and four of his lieutenants for crimes against humanity and war crimes committed during their 20-year-old rebellion. The government has proposed a traditional form of justice, Mato Oput, to replace the ICC indictments. Dieu-Donné WEDI DJAMBA explores the implications such a move will have for the post-conflict Democratic Republic of Congo, where the national judicial system is in collapse, and the only alternative left for victims of war to seek justice from is the ICC. This article is the last installment of a two-part series. The first article, entitled “The Ugandan Peace Process in Perspective” was published last week.

The ICC determines whether a State’s criminal procedure, including non-party States’ criminal procedures, conforms with the principles of “due process” or not. The standard adopted by the ICC for its determination is “the minimum guarantees” provided by the International Covenant on Civil and Political Rights (ICCPR).[1] And, Mato Oput may not conform to this principle of “due processes”.

Furthermore, there is need to improve Mato Oput for it to be suitable as an alternative to the ICC. This raises the question whether still it remains a possibility to see Kony and his senior commanders standing trial under Mato Oput, because the ICC’s Rome Statute provision article 17(admissibility principle) [2] provides that a case being investigated or prosecuted by a State member can be admissible to ICC(art.17,(1)a and b) but not reversed.

Indeed, there is jurisprudence for the ICC to prosecute Kony and his senior commanders because the Ugandan government itself referred the case to the international criminal court.

It must be noted that in order for the ICC to drop a case already at the investigation, prosecution or trial phase, and for a State to continue with the same case, this will create an judicial unsafe (delay of process). It would also be important to find out what happens if once again the same case became admissible to the ICC under articles 17(1)a and b after being handed over to a concerned State by ICC under the Complementarity principle.

Therefore, if Mato Oput will apply the international law standard, it will be helpful for the future case. Secondly, Acholi people are asking for Kony and his senior commanders to be prosecuted through Mato Oput. [3] But do they (Kony and other) ask for any prosecution by Mato Oput applying an international law standard? The possibility is they may ask for amnesty in order to avoid prosecutions. I am also of the argument that even if the Mato Oput has an international law standard it would not be the best option for Kony and his senior commanders.

The withdrawal of the warrants of arrest

Another threat faced by the ICC in the Ugandan peace process is the demand to withdraw warrants of arrest against the LRA leaders, which could set an unfortunate precedent for other ICC cases.

The wanted LRA leaders want the warrants of arrest withdrawn before they will emerge from the bush to sign the peace agreement. “The ICC warrants of arrest against the LRA leaders should be dropped, so that a peaceful conclusion to talk can be reach”, said the LRA spokesman Obonyo Olweny. [4] Otti Vincent, one of the wanted LRA leaders, said in a call to a Gulu-based radio station that “Kony and I can not attend the peace talks although they wanted one of the top leaders of the LRA to attend. We are afraid of the ICC indictment on us. If you can convince the Uganda government to withdraw the case at the ICC, we are ready to come out of the bush freely”.[5] And he warned “there will be no peace deal unless international indictment for the top rebels are dropped”.[6]

Uganda has offered the five rebels leaders a blanket amnesty if they agree to a peace deal, and hinted at a possible negotiation with the ICC over the indictment. [7] The Uganda peace talks mediator, Dr Riek Machar, has taken a middle position to the LRA’s demand that warrants of arrest be withdrawn, saying “we are not telling the ICC to stop what they are doing….We are just asking them to give the peace process a chance.”[8]

Contrary to Machar’s view, the ICC’s Prosecutor, Luis Moreno Ocampo urged that the best way to finally stop the conflict is to arrest the top leaders. And he added that “Kony will eventually face the trial.”[9]

The ICC involvement in northern Uganda is viewed as a complication by all sides. While the ICC prosecutions have been an important factor in bringing the LRA and the government to the table, they now limit the options available to mediation because they and the broad international community are unlikely to accept a deal providing a broad amnesty and lacking strong justice and accountability mechanisms. At the same time, the commanders indicted by the ICC will not be interested in any deal that fails to protect them from ICC prosecution and fails to guarantee their personal safety.[10]

If the warrants of arrest are withdrawn, the question remains: who shall be blamed? Interviewed in February, senior ICC official Phakiso Mochockoko said that “The situation in northern Uganda was referred to the ICC prosecutor (Argentina lawyer Luis Moreno Ocampo) by the government of Uganda. And as a result of that, the ICC is obliged to exercise its mandate in accordance with the statute”.[11] As such it seems that cracks in the Rome Statute would need to be found before any warrants of arrest could be withdrawn.

Under article 53 of the Rome Statute, the prosecutor has the discretion to stop prosecutions that no longer serve ‘the interest of justice’. Article 53 can only be used to end, not suspend, a case. An option of last resort subject to serious constraints, it calls for the prosecutor to consider the ‘interest of justice’, not peace. This is in line with the ICC’s stated purpose articulated in the statute’s preamble, which is to end impunity and ensure prosecution of those most responsible for the gravest crimes. As such, any decision to stop a case prior to prosecution, except on the most compelling grounds, is contrary to the court’s core principles.[12]

Therefore, if for some Ugandan people (including Kony and his senior commanders) the ICC is an obstacle towards peace, the way “to give peace a chance” as Machar says, is to leave any decision to put the prosecutions on hold to the Security Council, as provided by article 16 of the Rome Statute.

This article permits the Security Council to determine that an agreement would be in the interest of peace and to require the ICC by a chapter VII resolution to defer action for renewable one-year periods, thereby suspending and not halting prosecutions.[13]

The time limitation of one year placed on the Security Council by the Rome Statute was both a recognition that article 16 should not become a back door to impunity, and a realization that the threat of not renewing a deferral gives the Security Council a tool for ensuring compliance with an agreement. Thus, even if the Council does intervene, the LRA may not be satisfied.[14]

But the Crisis Group argues that in theory, the Security Council could give de facto amnesty by promising to renew the yearly deferrals for the lives of the indicted, though such a pledge should at least be accompanied by a clear understanding that any violations by the LRA would mean a resumption of prosecutions.[15]

Article 16 of the Rome Statute does not provide any limit in terms of how many times the Security Council should renew a deferral action. This omission is a threat for the ICC as an anti impunity symbol. And any unlimited renewal one-year period in LRA leaders’ case will set a precedent for the future ICC case and for international justice.

The Blanket Amnesty

Tina Rosenberg argues that a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the national political culture and history, the conditions necessary for dictatorship to occur, the abruptness of the transition, and the new democratic government’s power and resources. She added that different countries have chosen widely different strategies to deal with the past.[16]

Among these strategies, is the granting of amnesty. This strategy is used by different countries in order to end conflict or dictatorship regimes. Samuel P. Huntington [17] distinguishes three types of democratization transitions: transformations, replacements and transplacements.

In transformations, those in power in the authoritarian regime take the lead and play the decisive role in ending that regime and changing it into a democratic system. In replacements however, democratization results from the opposition gaining strength and the government losing strength until the government collapses or is overthrown. In transplacements, democratization is produced by the combined actions of government and opposition.

In recent past, many dictatorship regimes used the amnesty strategy during transition to democracy to grant themselves a blanket amnesty such as in Chile with the Pinochet regime.[18] Others used the National Conference Forum such as in Togo with the Etienne Gnassingbé Eyadéma regime [19] , and in the DRC (former Zaire) with the Mobutu regime.[20]

However, in transplacements, the granting of amnesty has also been chosen in many countries. This amnesty could be a broader one, such in Sierra Leone [21] or conditional such as in South Africa.[22]

Thus in order to end a war conflict or a dictatorship and to establish a real democracy, many countries have chosen to grant a amnesty. Uganda is among them.

Indeed, the Ugandan president Yoweri Museveni has offered a blanket amnesty to LRA leaders in order the end the over 19 year long deadly civil war in his country. As noticed the BBC News: “Mr. Museveni clearly feels that for now, the most important thing to achieve is peace. And, in the interest of that peace, the widespread crimes of Joseph Kony’s Lord’s Resistance Army should be put to one side.’’[23]

The ICC at The Hague may disagree. The court was founded on the basis that there can be no durable peace without justice, which to some extent satisfies victims that wrong have been addressed.[24]

At a 2002 meeting to mark the fourth anniversary of the adoption of the Rome Statute, Kofi Annan, the Secretary General of the United Nation, said “The date of 17 July 1998 will long be remembered as the world finally united to bring an end to the culture of impunity”.[25] But challenging impunity does not only mean ferreting out former dictators from wherever they may be hiding in order to have them stand trial for the crimes they committed. It also means not extending amnesties to people accused of committing crimes against humanity.[26]

However, this point of view is not shared by all Ugandan people. Indeed, as noted IRIN, Ugandans are “…tired of war, most people want the rebels forgiven”. According to them, maintaining a tough stance against the rebels and fighting them has only prolonged their suffering. “We are in a mood of forgiveness. Let the International Criminal Court not spoil our party preparations”, some Ugandans have said.[27]

The ICC’s aim to close “the gap of impunity” is felt by some Ugandan people to be a threat to the peace in Uganda. Some of them do not hesitate to criticize the presence of the ICC in the Uganda peace process. An internally displaced person, Nikson Owinyi, told Jan Egeland that “The international community should tell the ICC that the Acholi people don’t like ICC in these affairs because it is holding back the peace process.”[28]

Again Peter Onega, 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 they have even issued amnesty to. …..The warrant would scare away willing rebels and frustrate the commission’s effort to negotiate for ex-rebels return”, he added.[29]

Indeed, in a bid to bring about a cessation of violence, the UAC was set up to offer a blanket amnesty to militia and soldiers. It was hoped that this amnesty would encourage them to lay down their weapons without fear of reprisal. Then in October, 2005, the ICC issued warrants of arrest against five members of the LRA in Uganda and this move effectively undid the work of the UAC.[30]

But Luis Moreno Ocampo, the Chief Prosecutor for the ICC, made himself clear on this issue when he told IRIN, “Domestic amnesties are strictly a matter for national authorities and do not act as bar to an investigation by the ICC”. Thus, the message was that at a national level, amnesties may be granted, but they will not be guaranteed at an international level.[31]

The rejection of amnesty for perpetrators of human rights abuses on the basis that such amnesties are incompatible with the principle of international law has been steadily involving the whole world. The International Criminal Tribunal for the Former Yugoslavia observed in 1998 that amnesties covering certain crimes’ “would not be accorded international legal recognition” despite having legal force in that country. Spanish and French courts have also lent their backing to this interpretation, and the inter-American court of Human Rights in 2001 stated “All amnesty provisions are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations, which are non-derogable rights recognized by international human rights law.”[32]

The UN holds the understanding that the amnesty provisions of the agreement shall not apply to the “international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”[33]

Indeed, the amnesty issue facing the ICC in the Ugandan peace process is an opportunity for the international justice system to show the international community as a whole that the impunity gap is closed.

Far from spoiling the peace process in Uganda, the ICC could boost it. Its deterrent effect is one of the main explanations for the sudden willingness for the LRA leaders to negotiate. They no longer have anywhere to hide. They have lost support - the southern Sudan is no longer a threat for the government of Khartoum, and they are wanted in DRC by the MONUC, the UN mission in DRC after killing eight Guatemalan peacekeepers in Eastern DRC.[34]

Often, people like Kony and other LRA leaders need to be backed against the wall before one can expect any agreement from them for a negotiated solution. Mobutu, the DRC former president accepted negotiations with Laurant Desiré Kabila, the other former DRC President, (then rebel leader) when almost ¾ of the country was controlled by the rebel group in 1997 . ‘The rebels Lords Resistance Army has called for the resumption of peace talks with the Ugandan government’ noted IRIN.[35]

As noted by the Citizens for Global solutions (CGS), Kony is exactly the type of person for whom the ICC was created. [36] Therefore, the blanket amnesty through a peace agreement becomes the last chance for a way out.

The implications of the Ugandan peace process in the Ituri District

As has been said before, DRC is affected by a deadly war which has resulted in over three million deaths and widespread displacement. The killing and other atrocities committed against the population by the national army, foreigners armies, rebel groups, and militias raises the issue of accountability of the perpetrators and reparation for the victims.

But in the DRC, the national judicial system is in collapse. According to Human Rights Watch, the DRC’s national justice system is in a state of disarray. It will likely take years to establish a functioning, independent, impartial and fair judiciary.[37] And the Commission Vérité Reconciliation (CVR) - the Congolese truth commission - established by the Pretoria Agreement with the mandate to address reparation has failed to do its work.[38]

Therefore, the ICC becomes the alternative for the thousands of victims wanting to see justice done by holding their perpetrator accountable and getting reparations owed to them.

Among the most affected by the war is the population of Ituri District in northeast DRC bordering with Uganda. This population expects prosecution of the likes of Combra Matata, leader of the Ituri Patriotic Resistence Front (FRPI), one of the active militia groups and responsible for several atrocities including rape, burning houses and killing.[39]

The Ituri people also expect prosecution of Kawa Mandro of PUSIC, an Ituri militia [40], Peter Karim of Front des nationalistes et Integrationnistes (FNI) and Mathieu Ngudjolo of Mouvement des Révolutionnaires Congolais (MRC) [41]. Already there is a concern among the population in Ituri after the government appointed two ex-militia leaders, Peter Karim (FNI) and Mathieu Ngudjolo (MRC) as colonels in the national army [42], in the name of peace.[43]

But for the victims of war in the DRC, especially in Ituri, ‘peace’ means positive peace, one in which justice is addressed, human rights are respected and people live without any fear (as opposed to a negative peace such as a ceasefire, which is negative because it stops the war but does not address other issues). [44] And this ‘peace’ has to be based on the concept of justice. There is no peace without justice. But this justice has to be taken into the transitional justice perspective.[45]

Indeed, transitional justice offers a deeper, richer and broader vision which seeks to confront perpetrators, address the need of victims and assists in the start of a process of reconciliation and transformation.[46] Therefore, the Uganda peace process is very important for the people of that country.

The ongoing peace process in Uganda is being followed with interest by both the victims and perpetrators in Ituri District. The success or failure of the ICC in the LRA leaders case will have many implications. Successful prosecution will create an expectation for several victims of similar atrocities in Ituri to see their own perpetrators held accountable for their crimes and to expect reparations. It will produce a deterrent effect to other militias who are still active in the same area. [47] Indeed, the arrest of Thomas Lubanga, one of the militia leaders in Ituri by the ICC in April this year produced a strong deterrent effect. “Many here in the East are afraid the court will come…we all now are thinking twice . We do not what this court can and will do”, confessed Xavier Ciribanya, former rebel leader of the RCD-goma and suspected of a range of crimes against civilians in both Kivus and Ituri.[48] Therefore, the ICC remains key in ending the violence and the last hope for the victims to see their perpetrators prosecuted, and to receive reparation after the complete failure of the CVR to address the issue. [49]

But, on other hand, failure will encourage the culture of impunity in Ituri District.

Indeed, the three conditions raised in the Ugandan peace process can be used by the different perpetrators in Ituri: firstly the Mato Oput option will gives people like Combra Matata who still has weapons the opportunity to escape a real trial. Secondly, the withdrawal of the warrants of arrest will give future perpetrators the chance to claim the Ugandan ICC case as jurisprudence. Finally, the blanket amnesty will be an opportunity for those prosecutable in Ituri District to extend the content of the law adopted by the DRC National Assembly which gives the CVR the power to propose amnesty for acts of war, political crimes and crimes of opinion.[50]

Conclusion

The ongoing peace process in Uganda is critical for the Ugandan people. This peace process can finally end the 19 year long deadly war which deeply affected the northern Ugandan people. But at the same time, the peace process in Uganda is critical for the ICC which faces its first test as the symbol to impunity. Furthermore the Ugandan peace process has implications for the Ituri District.

As a symbol for the ending of impunity or the closing of the impunity gap, the ICC has to stand behind its warrants of arrests. Justice has to be done. Not only for the victims in northern Uganda, but for others, including the Ituri.

The ICC is established not only for Uganda and its future will depend on what decision it takes today in order to secure tomorrow in its fight against the impunity. ‘Justice for today’s crimes supplies the legal foundation needed to deter tomorrow’s atrocities. Without justice, there is no peace’.[51]

• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Consultant; Assistant lecturer in the College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected];[email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] Lijun Yang, “On the Principle of Complementarity in the Rome Statute of the International Criminal Court”,Chinese Journal of International Law (2005),vol 4,Nº1 (accessed 11October 2006)
[2] Rome Statute, (accessed]http://www.sierra-leone.org/lomeaccord.html>(accessed 23 Octoberd 2006)
[22] Alex Boraine, “A COUNTRY UNMASKED”, Oxford University Press,2000,pp270.
[23] BBC News “Afrca’s mixed amnesty
[24] BBC News,op.cit
[25] IRIN.op.cit.
[26] IRIN.op.cit
[27] News.op.cit
[28] IRIN,op.cit
[29] Joseph Yav Katshung, op.cit
[30] IRIN,op.cit
[31] ibid
[32] ibid
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] William W.Burke-White, “International Criminal Court, Complementarity in practice:The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo”,Leiden Journal of international Law 18( 2005),pp576
[38] William W.Burke-White,op.cit
[39] IRIN : “DRC: Recently Demobilised militiamen re-arming in volatile Ituri Distict” (accessed 20 September 2006)
[40] Radio Okapi, “George Bush ordonne le blocage des avoirs des seigneurs de guerre de la RD Congo” ,(accessed 1November 2006)
[41] The DRC Defence Minister has publicly stated that the government is determined to work with the ICC to help bring war criminal to book ,after appointing the two ex-mititia, colonel in national army, in IRIN,DRC:Two militia leaders appointed army colonels,(accessed,13 October 2006)
[42] IRIN,op.cit
[43] Dieu-Donné Wedi Djamba,“Congo-Kinshasa:A strategy for Peace And Reconciliation in the DRC?”,in Pambazuka News. http://allafrica.com/stories/200610260875.html >( accessed 26 October 2006)
[44] Professor Jannie Malan used the terms “negative and positive peace” during the course session for the fellowship in Transitional Justice(2006) in Cape town/South Africa
[45] Dieu-Donné Wedi Djamba,op.cit,
[46] Alex Boraine, in: Alex Boraine and Sue Valentine, op.cit,pp25
[47] Alert.net, “More than three million Congolese dead and no one notice,say Is IRC”(accessed 2November 2006)
[48] William W. Burke-White,op.cit.pp588
[49] William W.Burke-White ,op.cit
[50] William W.Burke-White,op.cit
[51] Kathryn Schiele “U.S RATIFICATION OF THE INTERNATIONAL CRIMINAL COURT”,in Journal of International Relations, James Madison University, Spring 2004,pp59

Uganda has a reputation of having controlled its HIV/AIDS problem. Matthew Wilhelm-Solomon writes that the extent of the virus in Northern Uganda is perhaps more severe than figures indicate, “as the expansion of combination antiretroviral therapy – the treatment which can suppress the replication of the human immunodeficiency virus - to the camps has been severely limited due to dangerous access routes and impoverished resources.”

In Northern Uganda World Aids Day on December 1st comes at a time of uncertainty; in the fragile peace that has come to the region, HIV and AIDS is emerging as a problem of significant magnitude for communities who have suffered two decades of war and displacement.

At present talks between the Lords Resistance Army – the religiously inspired rebel group, who have woven together themes of Acholi and Christian mysticism as a legitimation to inflict a supposedly purgatory violence on the population – and the Ugandan government haltingly continue in Juba, Southern Sudan. Communities in Northern Uganda are coming to terms with years of neglect and violence, in which an estimated 1.6 million people have been displaced, most of whom live in congested camps, or ‘protected villages’ with little access to agriculture, income or health services. Yet, the spectre of AIDS haunts the calm that has come to the region.

Says Odoi Charles, counseling coordinator of The AIDS Support Organsation (TASO) in Gulu Town: “We are using World Aids Day to sensitize people and to commemorate the gallant fallen ones. It’s a day to remember those who have died because of AIDS”

AIDS is the second highest reported reason for death after malaria in the region according to the World Health Organisation. In spite of Uganda’s reputation of having controlled its HIV/AIDS problem, a 2004/2005 Uganda National Sero-Behavioural Survey indicates the prevalence rate for the North Central Region is 8%, significantly above the national rate of 6.4%. Antenatal data at St Mary’s Lacor Hospital – a Catholic hospital near Gulu Town – indicate a prevalence rate of 11.9%, though local organizations believe the rates may be far higher in some camps. No reliable data exists for many of the camps in the region.

The extent of the impact of HIV in the region may be more severe than figures indicate, as the expansion of combination antiretroviral therapy – the treatment which can suppress the replication of the human immunodeficiency virus - to the camps has been severely limited due to dangerous access routes and impoverished resources. However, the past two years have shown a significant scaling up of treatment access in the region through a combination of government and non-governmental programmes, the latter predominantly funded by the Presidents Emergency Plan for AIDS Relief (PEPFAR), a United States government fund. Certain Catholic programs under this funding can’t actively promote or distribute condoms, which places a bar on strong coordination between treatment organisations in the region with differing views on the use of contraceptives. The government programs are being funded in part by the World Health Organisation after the withdrawal of funds to Uganda by the Global Fund to fight AIDS, Tuberculosis and Malaria in late 2005 as a response to financial mismanagement. This caused temporary supply-line stockouts in Gulu National Hospital.

The treatment in the region has already had its successes in areas where it has been available. Ilama Charles is a counselor with Comboni Samaritan a local Catholic HIV/AIDS care organization providing support to clients of St Mary’s Lacor, which was one of the frontier treatment providers in the region starting a treatment program in 2004 and which now provides over 1500 treatment slots in the Gulu district. Ilama has witnessed the changes it has brought in the area: “You saw people who were brought on wheelchair, starting riding bicycles, lifting Jerry cans of water on their head. If you are to go to the medical ward you would find the hospital filled with patients, even some are sleeping on the floors. Medical staff were really stressed. With the advent of ARVs there were many changes. Before patients were coming with three, four opportunistic infections, but others would have ten, eleven. Now these have disappeared, they now go once a month for the ARV for their drugs”. The program which has many clients from surrounding camps has shown high rates of drug adherence, a key concern for antiretroviral treatment programs, as low adherence rates effect both the efficacy of treatment and risk the spread of drug resistant viral strains.

The inception of treatment in the region has also led to a dramatic rise in numbers seeking testing HIV and news has spread quickly about the drugs. Numerous clients have returned to strength and been able to cultivate what land is available around outskirts of the camps; the return to digging is symbolic of both health and peace.

Yet, for many treatment is still out of reach. Even where antiretroviral treatment may be available, many cannot afford to get to treatment sites or even to be tested. In Pabbo, the largest camp in the North with an estimated population of 60 000 people, there is still no access to antiretrovirals other than for the few who can afford the 90km monthly trip to Gulu Town. The route is one in which, until this year, ambushes were common. In Pabbo a vast dusty field outside the health centre has become a nursery and playground – boys kicking balls made from plastic bags, children following and peering through the windows of aid vehicles, desperate for entertainment. It is places like these where the destitution of war is most apparent. In seems that here there are two worlds and times: one in which children live and die, with their own daily rhythms, cycles and wanderings - often ended by malaria, fire, or diarrhea - and the world of adults which requires a fierce resilience and patience to survive. Child morbidity rates in the area are, according to the WHO, of ‘emergency proportions’.

Treatment for children provides a particular difficulty: they are often left unattended or with elderly caregivers, who cannot monitor their adherence properly. Health Alert is a local NGO trying to expand care and treatment follow up for children and pregnant mothers in the Gulu district. Says Achero Joyce Stella, a counselor at Health Alert: “In the camps, the issue of child neglect is a problem. For instance in Awach, the father had neglected the child. The child died, from opportunistic infections. Because of lack of money, distance from the treatment centre, the child died.” In some camps, the return to health of parents and the peace has been a mixed blessing: the parents go to garden during the days, leaving their children alone to wander unattended. For other young men and women a return to health is an opportunity to marry and have children, which raises concerns about mother to child transmission and the spread of drug resistance.

In spite of the fragile peace, the toll of violence and daily suffering on the population has been remains severe. Almost everybody has suffered direct violence on themselves or their families. Alcoholism is rife. Disillusionment with the prospect of peace is widespread; many believe that the army has no interest in ending the war and have benefited from it through stealing cattle and land. A thirty five year old women in the St Thomas camp near Gulu Town, was left looking after seven children after her husband, who was a soldier, was killed by the LRA. She says: “I hear people talking about peace talks, but I am never interested because I know it may happen the way it has been happening since they tried to talk peace; it never succeeds, no change ever occurs” She began taking antiretroviral in 2005. The treatment process has helped not only her physical but mental health. “When I started using the medicine, it brought about change in my life, in terms of health, because before I started using the medicine I was almost running mad. There is my last born whom I wanted to kill because I knew I was going to die so she could not remain to suffer on earth, but when I started using this drug all the bad thoughts went out of my mind…the problem has affected everyone, but for us women it is very painful, because you will be the house head, responsible for everything in the home.” With many men dead from the war and disease, the burden for household and community cohesion is increasingly being placed on widows, and it is predominantly widows who are enrolled in treatment programmes. This places an adverse burden on women in supporting their families with meager resources. Many men still fear the shame and perceived guilt of being tested for HIV and seeking treatment, though the situation is improving.

Yet, the peace is creating new possibilities for the expansion of treatment into areas that were previously inaccessible. TASO are presently adding a further 600 antiretroviral slots to their present 500 introduced in 2005. They are celebrating World Aids in Awach, one of the camps to which antiretroviral treatment has become available in recent months.

“The whole region has been very calm. We have very high hopes,” says Odoi Charles, counseling coordinator at The Aids Support Organisation (TASO), Gulu. Comboni Samaritan are presently expanding their services from a 40km radius from St Mary’s Lacor Hospital to 70km because of the peace in the area.

The material and logistical obstacles to scaling up treatment in the region remain, however, daunting. There are major shortages of medical staff and diagnostic equipment, particularly at government health facilities. At some of these health facilities there is poor treatment follow up which could lead to poor adherence. This raises the possibility of the spread of drug resistant strains of the virus – a threat which could undermine the treatment effort in years to come. The problem of transportation for many in the North is huge; many simply cannot afford to get to treatment and testing facilities or they arrive when it is too late to be helped.

At present, the camps are being ‘decongested’: residents of the larger camps are being allowed by the army to move to smaller camps closer to their land. Patients are becoming more increasingly scattered, making monitoring more difficult. If the peace talks fail, renewed conflict could undermine attempts at treatment expansion. Yet, there is hope among caregivers and patients that these obstacles are not impassable and community based strategies are being developed to overcome them. In uncertain times, the healing of those suffering from HIV/AIDS could be an analogue for social healing. World Aids Day provides a moment to recollect past losses and look forward towards the prospect of a difficult peace.

Odoi Charles of TASO claims “We are now going to begin another war: the HIV/AIDS war.”

* Matthew Wilhelm-Solomon is a South African Rhodes Scholar and MPhil Candidate in Development Studies at Oxford University. He is also a committee member of Student Stop Aids at Oxford University, and ahas worked as a freelance journalist in South Africa while studying Political Science at the University of Witwatersrand publishing mainly in the Mail & Guardian.

• Please send comments to or comment online at www.pambazuka.org

Uganda's Lord's Resistance Army (LRA) on Wednesday (29 November 2006) suspended participation in peace talks with the government to end a brutal two-decade conflict, claiming the army had killed three rebel fighters. Rebel spokesperson Obonyo Olweny said they withdrew from the peace process after the Uganda People's Defence Forces (UPDF) attacked a rebel unit headed to one of two neutral camps in southern Sudan in line with the truce.

On November 22 Cabinet met in Kampala to discuss the White Paper on the findings and recommendations of the Ogoola Commission of Inquiry into allegations of mismanagement of the Global Fund to fight Aids, tuberculosis and malaria in Uganda. Cabinet adopted the paper and assigned roles to various sub committees for further investigations.

The biggest land grab in Uganda’s recent history has been going on in and around Kampala for the past two years. Government leaders have been allocating land on which state-owned schools, dilapidated public buildings, parks, and even churches, are sited, to developers in fishy midnight deals.

The proposition of a traditional form of justice, Mato Oput, as an alternative to the International Criminal Court (ICC) for the Ugandan peace process, raises many questions. Dieu-Donné WEDI DJAMBA points out that the use of Mato Oput, the withdrawal of ICC warrants of arrest against the LRA leaders, and the granting of a blanket amnesty to the LRA leaders have been raised as the conditions for peace in Uganda, yet are posing a threat to the existence of this and even the ICC, whose philosophy is: “There is no justification for worse crimes.” This article is the first part of a two-part series.

The international community is very interested in the ongoing peace process in Uganda between the Ugandan government and the Lord’s Resistance Army, (LRA), a rebel group active in northern Uganda for the past 19 years.

This process started in July 2006 in Northern Uganda and Juba in Southern Sudan. One of the key countries observing the peace process is the Democratic Republic of Congo (DRC).

Having many events in common with Uganda in the past, there are many factors linking the DRC to the ongoing Ugandan peace process, such as the shared Northeastern border between the DRC and Uganda. The LRA has one of its camps in the Karamba forest in Ituri District, northeast DRC, and many Ituri militia groups who have been involved in many human rights violations and other atrocities are still active there, with links with Uganda.

The end of the civil war in Uganda will be beneficial for the DRC as it will end any justification for the Ugandan government to violate the DRC border under the pretence of fighting the LRA rebellion. In particular, the end of the war will impact positively on the Ituri District, which has been deeply affected by the militia groups connected with Uganda.

The DRC is just emerging from a protracted war involving Angola, Zimbabwe, Namibia, Uganda, Rwanda, Chad, during which over three million people were killed, thousands displaced, thousands still becoming refugees, many atrocities committed, and the HIV/AIDS rate increased. Many issues are outstanding, not least the accountability of the perpetrators and the issue of reparation for the victims of those atrocities.

However, the proposition of a traditional form of justice, Mato Oput [1], as an alternative to the International Criminal Court (ICC) trial, the dropping off of the warrant of arrest against the LRA leaders, the blanket amnesty promised to the LRA leaders by the Ugandan government in exchange for a peace agreement despite the warrant of arrest from the ICC pending upon them, are areas of concern for the DRC. Any outcome on these three issues in Uganda - signatory to the Rome Statute as the DRC - will have implications for the DRC, and the Ituri District.

What impact can the Ugandan peace process have in Ituri (DRC) in the perspective of transitional justice? What other issues does the Ugandan peace process raise? These are the questions I will try to respond to through this paper.

The peace process in Uganda.

The current peace process in Uganda between the Ugandan government and the LRA began in July 2006. The peace talks are taking place in Juba in Southern Sudan and led by Dr Riek Machar, the Vice President of Southern Sudan. [2]

The LRA is a rebel group led by Joseph Kony, that has fought in northern Uganda for the past 19 years. Born in the early 1960’s in Odek, a village East of Gulu, Kony is thought to be the cousin of Alice Lakwena who founded the Holy Spirit Movement in 1986. This group represented the Acholi people in northern Uganda who felt excluded from power after the overthrow of the northern leader Milton Obote by Museveni. Lakwena promised her followers immunity from the bullets of the Ugandan army, but Museveni troops defeated her movement in 1988 and she fled to Kenya. After this defeat, Kony founded his own group which has operated through the abduction of thousands of children to become fighters or sex slaves. Kony himself is thought to have at least 60 wives as he and his senior commanders take the pick of the girls they capture. [3]

According to IRIN [4], nineteen years of the conflict has condemned some two million people in northern Uganda to live in appalling conditions in huge camps within their home districts. Thousands have died during this conflict. The Kony rebel group initially claimed to be fighting to topple a government that has “marginalized” the people of the region but they quickly turned against the same people when support was not forthcoming. [5]

Indeed, Kony appears to believe that his role is to cleanse the Acholi people. He uses biblical references to explain why it is necessary to kill his own people since they - in his view - failed to support his cause. “If the Acholi don’t support us, they must be finished”, he told one abducted person.[6]

Death was not the only one punishment that Kony has afflicted on his people. Mutilation, rape, abduction, slavery and burning of houses were also among the arsenal of weapons he employed against his people. [7]

As a leader, Kony sees himself as a spirit medium and he has created an aura of fear and mysticism around himself, thus his rebels follow strict rules and rituals.[8] His LRA movement demands that Uganda be ruled according to the biblical Ten Commandments. IRIN [9] has observed that over the past 19 years, Kony and his rebel group have not controlled any territory and have rarely tried to control strategic government assets. This made fighting and arresting perpetrators a nightmare for the government until the government petitioned the ICC in The Hague to investigate and indict rebel leaders for their crimes against humanity.[10] The ICC responded and last year issued warrants of arrest for five rebel leaders: Joseph Kony, Vince Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen.[11]

However, since these warrants were issued, peace talks between the LRA and Ugandan government began. A major breakthrough was made when the parties signed a ‘cessation of hostilities agreement’ whereby the LRA agreed to assemble within three weeks at designated points. Rebels in Uganda and Sudan were to go to Owiny-Ki-Bulm in Eastern Equatoria, and rebels in Congo to Ri-Kwangban in Western Equatoria.[12] The rebels would be protected by the Southern Sudanese and the Ugandan government undertook not to attack them. [13]

But the mediators who tried to broker negotiations in the war were not amused as they felt that the justice being sought by the ICC was not the immediate requirement, but a luxury that could be put aside for a while until peace was achieved. [14]

The Ugandan peace process versus the I CC

Very often, when a country wishes to move from war to peace, the search for justice may include trials in an national or international court of law as well as other non-punitive approaches. In recent years there has been a growing demand around the world for transitional mechanisms, such as truth commissions.[15] Juan E. Mendez argues that because accountability problems occur within a broad range of contexts, accountability for past abuses must be considered not only in transitions to democracy, but in seeking solutions to armed conflicts as well. [16]

However, after the ICC issued warrants of arrest against the LRA leaders, some analysts expressed concerns that these warrants effectively ended the peace efforts led by former Uganda minister Betty Bigombe. Once officially charged by the ICC with crimes against humanity, the LRA commanders cannot receive amnesty as part of any political settlement of the conflict. Bigombe herself complained that the court had “rushed too much” as a result of which “there is now no hope of getting (the LRA commanders) to surrender’’. The Roman Catholic Church, which had also helped facilitate the mediation effort, expressed fears too that a political settlement has now been made more difficult. [17]

On the other hand, Juan E. Mendez argues that the ICC warrants of arrest arehelpful for the Ugandan peace process. He told IRIN that, “when you have spoilers like the five people who have been indicted who are really not interested in peace, at some point it is important to remove them from the negotiating table so you can bargain with people who are more interested in peace. This removal, by the fact they are now under indictment, may initially be seen as an obstacle to peace, but farther down the road it may be exactly what is need to get a stable peace in northern Uganda”. [18]

History confirms the validity of Mendez’ argument. The indictment of Charles Taylor [19] was beneficial for the peace process in Liberia, and the death of Dr Jonas Savimbi [20], the ex-UNITA rebel leader, allowed the Angola government to embark on a successful peace process with another UNITA leader.

The road towards peace is sometimes very surprising indeed. A further more complicated proposal is that made by some Ugandans of using ‘Mato Oput’, the traditional form of justice, as an alternative to the ICC processes.

Still others are asking for the ICC warrants of arrest to be withdrawn and there are also those who believe the Ugandan Amnesty Commission (UAC) is good enough to deal with the case.

Thus, the three issues posited as the conditions for peace - the use of Mato Oput, the withdrawal of arrest warrants issued against LRA leaders, and the granting of a blanket amnesty to the LRA leaders, - are becoming a threat to the existence even of the ICC for which the philosophy is: “There is no justification for worse crimes.” [21]

Mato Oput

In reference to the principle of complementarity in the preamble of the ICC, which states that “The International Criminal Court shall be complementary to national criminal court jurisdiction” [22], some observers in Uganda are suggesting that the traditional Mato Oput process of reconciliation be implemented in order to deal with Kony and his commanders. [23]

To confirm this trend, one of the elders in the Internally Displaced People’s (IDPs) camp at Opit, Gulu, in northern Uganda said, “the amount of death in Acholi should not be equated to the pursuing of five LRA commanders’. The elder added that “the Acholi people have a system that is capable of delivering justice in region” [24], referring here to Mato Oput.

Indeed, in Acholi, Mato Oput means drinking the herb of the Oput tree, [25] a blinding-bitter tree [26]. The reconciliation process is called Mato Oput because it ends in a significant ceremony of reconciling the parties in conflict. Barney Afako, a Ugandan Human rights lawyer and consultant to the Amnesty Commission, argues that among the Acholi “many offenses including homicides” were traditionally resolved by reconciliation. [27] If one kills a person, the clan of the killer approaches the clan of victim for reconciliatory justice. [28]

Mato Oput is not a happy ceremony. The moods of all present express the seriousness of the occasion. The process involves the guilty acknowledging responsibility, repenting, asking for forgiveness, paying compensation and being reconciled with the victim’s family through sharing the bitter drink -Mato Oput. [29] The victim’s clan must accept the plea for forgiveness for the reconciliation to be complete. [30]

Mato Oput is to be distinguished from other ceremonies, particularly the nyono tong gweno (stepping of the egg) ceremony which is a cleansing ritual that has been adapted for the reintegration of returnees. The latter is not a reconciliation ceremony that involves any measure of accountability or admission of guilt. [31]

The accountability issue that Mato Oput addresses raises a couple of questions such as will Mato Oput apply to types of crimes such as mutilation, burning of houses, abduction, use of children soldiers and slavery, which are crimes against humanity? These are the crimes for which Kony and his senior commanders are wanted by the ICC. Similarly, will Mato Oput be a suitable alternative mechanism to the ICC? Can LRA leaders can be tried by Mato Oput after the ICC already issued warrants of arrest for them, since there is no provision allowing the ICC to drop this case?

From the above arguments, Mato Oput can be described as conciliatory justice dealing with less serious crimesresponsibility. [32]

The gross violations of human rights, such as abduction, slavery, children, and mass killing are out of its jurisdiction as is confirmed by George Omona from Koc Goma in southwestern Gulu. Omona states that “the Mato Oput did not envisage monstrous crimes against a community, like killing of hundreds of people by Kony rebels”. [33] Therefore, Mato Oput will not be appropriate way to deal with Kony and his senior commanders.

Furthermore, to be suitable as an alternative mechanism to the ICC, Mato Oput has to comply with international law standards. Indeed, Joseph Yav Katshung argues that there is a need to ‘test if this Mato Oput mechanism implies good faith. Is this effort designed to generate more truth, more justice, reparation, 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 international law and will not be in the interest of justice and society as whole.” [34]

Indeed, Alex Boraine argues that the rule of law is fundamental to the existence of a free society. It separates us from anarchy. He adds that legal prosecutions have at least three additional advantages: firstly, prosecutions in most case prevent high-ranking perpetrators from returning to positions of authority; secondly, tribunals and special courts aim to punish those who bear the greatest responsibility for human rights violations and thus assist in breaking the cycle of collective reprisals; thirdly, due process avoids summary justice.[35] Charles Villa Vincencio [36] argues that organized systems of justice based on international standards of human rights include the entrenchment of the right of all persons to a legal defense and access to courts that administer the law in an even-handed and efficient manner - even in the face of the most hideous gross violations of human rights and ruthless manifestations of crime.

However, Mato Oput as a court raises similar concerns to those expressed about the Gacaca community courts established on 30 August 1996 by the Rwandese authority in order to deal with the alleged genocidaires.[37] These concerns relate to expertise and competence. The elders in charge of Mato Oput would be expected to understand complex legal issues without the benefit of legal training or legal arguments, and they would be expected to distinguish between genuine and false testimonies. They would have to deal with the problem of evidence and witness statements despite their lack of expertise in legal matters. They would be expected to hand down heavy sentences, including life imprisonment. In addition Mato Oput would be expected to set a framework for prosecuting and sentencing people suspected of having committed crimes against humanity. If Mato Oput could not provide for fair trials, reparations, appeals, witness and victim protection and for theaccused to be allowed to be represented by defence counsel, this system would not conform to international standards of fairness. [38]

Indeed, the Dakar Declaration adopted in September 1999, following the seminar on the Right to Fair Trial in Africa organized by the Africa Commission on Human and People’s Rights stated clearly that ‘it is recognized that traditional courts are capable of playing a role in the achievement of peaceful societies and exercise authority over a significant proportion of African countries. Traditional courts are not exempted from the provisions of the African Charter relating to fair trial. [39] And Mato Oput is not an exception to this statement.

• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Consultant; Assistant lecturer in the College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected];[email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] Birgit brock-Utne, “Indigenous conflict resolution in Africa”, University of Oslo, >( accessed 9 September 2006)
[8] BCC New.ibid
[9] BBC news.op.cit
[10] IRIN.op.cit
[11] ICC, “Situation and Cases: Uganda”, 9(accessed 8 September 2006).
[12] BBC News.op.cit.
[13] International Crisis Group; “Peace in northern Uganda?”, Africa Briefing Nº
[14] Naibi/Brussel,13October 2006, BBC News/Africa/Ugandan rebels assemble in sudan.(accessed 11October 2006).
[15] Joseph Yav Katshung,“Justice At A Glance In Uganda:Mato Oput versus ICC”, African Security Analysis Programme,ISS Pretoria .(acessed 15 September 2006 )
[16] Juan E.Mandez, ‘Accountability for Past Abuses’ in HUMAN RIGHTS QUARTERLY,Vol.19(1997),.pp256
[17] Marlise Simmons, “Court in The Hague issues Arrest Warrant for Uganda Rebels”,in the News york Times(accessed 14 october 2006
[18] IRIN.op.cit.
[19] HUMAN RIGHTS NEWS: “West Africa:Taylor adictment avances justice” ,accessed]http://www.infoplease.com/ipa/A0901288.html>,accessed 25 October)
[21] News .(accessed 9 September 2006)
[22] Rome Statute.

In its upcoming presidential statement on the Juba peace talks, the United Nations Security Council should call on Uganda’s government, the rebel Lord’s Resistance Army and the international community to continue to work toward a peace agreement that respects human rights, and includes prosecutions of those responsible for war crimes and crimes against humanity in accordance with international standards, Human Rights Watch said today (16 November 2006).

There are hundreds of thousands desperate to restart their lives if a peace deal between the Ugandan government and Lord's Resistance Army rebels is signed. This month the two sides renewed a landmark truce, paving the way for an end to a two-decade war that has killed tens of thousands of people and displaced nearly two million. Some refugees feel confident about going home but aid agencies say the problems of resettlement are daunting.

Susan Ssenabulya recalls with a chill the pain she went through when she had her second baby. "I became pregnant barely a year on my job in a financial institution in Kampala. I was a temporary employee and my appointment letter never mentioned anything to the effect that I was not entitled to maternity leave. I knew this was every woman's right.”

In 2003, Corporal James Omedio and Private Abdullah Muhammad stood before a public firing squad for killing Irish Catholic priest Declan O'Toole, his driver Patrick Longoli, and his cook Fidel Longole. They were executed after they were found guilty by a field court martial, following a trial that lasted two hours and 36 minutes.

Lands Minister Daniel Omara Atubo has strongly denied claims, mostly by politicians that the government plans to parcel out Acholi land to investors. Atubo said the government would not allocate any land in Acholi to investors without the consent of the owners.

The top United Nations aid official has called on the Lord's Resistance Army (LRA) to release children, women and other non-combatants during a landmark meeting with rebel leaders in a remote jungle outpost, stressing it was "make-or-break time" in the peace process to end 20 years of brutal conflict with Uganda's Government. Under-Secretary-General for Humanitarian Affairs Jan Egeland met Joseph Kony yesterday (12 November 2006) on the border between southern Sudan and the Democratic Republic of the Congo.

United Nations and Sudanese officials have arrived in Uganda in an effort to persuade tens of thousands of reluctant Sudanese refugees to return to their homes in the south of Africa's largest country. The UN refugee body, UNHCR, began the repatriation programme early this year but then stopped the exercise on October 20 after gunmen killed dozens of people in a series of attacks on highways in southern Sudan.

Health programmes in Uganda could be disrupted following a decision by the Global Fund to exclude the country from its list of beneficiaries, a senior government official said on Tuesday. The decision by the Global Fund to fight Aids, Tuberculosis and Malaria would exclude Uganda from the list of countries due to receive part of its sixth round of grants.

The Women's Peace Torch will today begin a five-day solidarity journey to the South Sudan capital, Juba, where peace talks between the LRA and the Uganda government are taking place. Members of the Uganda Women Parliamentary Association and the Civil Society Women's Peace Coalition will be led by Uganda Women's Network on a peace caravan undertaking the trek to Juba.

In a recent edition of the New Internationalist, Ike Oguine writes: "Not too long ago Uganda’s President Yoweri Museveni was considered a model of leadership in and for Africa. It was a Museveni-led liberation army which finally brought to an end the chaos and violence which followed the collapse of Idi Amin’s nightmarish dictatorship. His National Resistance Army simultaneously fought a military and political campaign. Even while engaged in military struggle it tried to set up elected, local representative committees in rural areas."

The Women's Peace Torch arrives today in Kampala to begin a journey of solidarity with the women of Northern Uganda. Having travelled in 2003 to more than 10 African countries in preparation for the Fourth World Conference on Women in Beijing with the message, "There is no sustainable development without peace," and to the Democratic Republic of Congo during the review of the Dakar Platform for Action, the Women's Peace.