In 2000, the Ugandan Parliament passed a bill offering amnesty to rebel fighters in an attempt to end insurgencies in the north and west of the country.
Northern rebels of the Lords Resistance Army (LRA) have been fighting Museveni's government since it came to power in 1986. In the mountains of western Uganda, the Allied Democratic Forces (ADF) frequently launch attacks on civilian targets in an effort to undermine the government which they say rigged elections in 1996.The legislation was initially in force for six months, but
the Act contained a provision for extension. According to the Section 2 of the Amnesty Act,
“ An amnesty was declared in respect of any Ugandan who at any time since the 26th day of January, 1986, engaged in or was engaging in war or armed rebellion against the Government of the Republic of Uganda by—actual participation in combat; collaborating with the perpetrators of the war or armed rebellion; committing any other crime in the furtherance of the war or armed rebellion; or assisting or aiding the conduct or prosecution of the war or armed rebellion [and who renounces and abandons war.]”
The rebels had to claim the amnesty by giving themselves up and handing in weapons. This meant that persons granted amnesty through the issuance of amnesty certificates, would not be subjected to prosecution or any form of punishment for the participation in the war or rebellion.
Since its enactment, 13,000 former LRA combatants have been pardoned to date, according to the records with the Amnesty Commission. According to UN organs, while the Amnesty Act made an important contribution to facilitating peace, it could not continue unchanged as it was affecting the implementation of meaningful justice for victims by undermining accountability mechanisms for international crimes, impacting on ongoing criminal justice processes and condoning impunity for sexual and gender based crimes.
II. Conformity with international law
Amnesties are permissible under international law but within certain limits established by international human rights and humanitarian law. Uganda is party to the Genocide Convention as well as the four Geneva Conventions and its additional Protocols. It has ratified all of the core international human rights treaties, with the exception of the International Convention on the Protection of all Persons from Enforced Disappearances, as well as other significant treaties like the Optional Protocol to the Convention on the Rights of the Child (CRC) on the use of Children in Armed Conflict (OPCRC-II). Uganda ratified the ICC Rome Statute in 2002 and has also supported and signed important international instruments including the Paris Principles and Commitments of 2007 on the role of children in armed forces or groups. Uganda has also ratified important regional treaties that impose certain human rights obligations such as the constitutive acts of the African Union and the East African Community, the International Great Lakes Conference Protocols and most significantly the African Charter on Human and People’s Rights, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (the Maputo Protocol) and the African Charter on the Rights and Welfare of the Child and its corresponding protocol.
All the aforementioned instruments impose a series of obligations on the State of
Uganda with regard to protecting human rights and instituting measures to
ensure accountability for conflict related crimes experienced by women that
impact on the award of amnesty. In particular, these obligations include the following:
(i)
to investigate
and prosecute international crimes such as genocide, war crimes, crimes
against humanity and gross violations of human rights which include torture and
similar cruel, inhuman or degrading treatment; extrajudicial, summary or
arbitrary executions, slavery and enforced disappearance, and gender-specific
violations such as rape.
(ii)
to specifically
protect women and children against impunity for sexual violence and to investigate and prosecute and punish
perpetrators of sexual and gender-based violence.
(iii)
to provide
adequate and effective remedies to victims of such crimes, including
reparation
(iv) to ensure the victim’s inalienable right to know the truth about gross human rights violations and serious violations of humanitarian law.
Taking into account the various treaties and customary law obligations mentioned above, the Amnesty Act as was standing in violation of the State’s international obligations under human rights and humanitarian law.
1. Firstly, the Amnesty Act contravened international law
because in practice it established a blanket
amnesty barring from prosecution
persons who could be responsible for war crimes, crimes against humanity and
gross violations of human rights. Indeed, the Act guaranteed that reporters “shall not be prosecuted or
subjected to any form of punishment for the participation in the war or
rebellion for any crime committed in the cause of the war or armed rebellion.” This wording
was interpreted to cover any crimes that are related to the armed conflict,
including serious violations of human rights and humanitarian law.
In 2006,
the Amnesty Act was amended in an attempt to address some of the
inconsistencies between the Act and the country’s international
obligations, notably those arising from Uganda’s ratification of the Rome
Statute (June 2002). However, the 2006 amendment did not make reference to
criteria by which individuals may be considered to be ineligible for amnesty,
nor did it make the designation of ineligibility of amnesty a requirement by law.
Before the lapse of part of the Amnesty Act in 2012, there were still four pending ICC arrest warrants against top LRA commanders. If any of the four indicted LRA members were captured, it would have been very difficult for the Government of Uganda to call on the principle of complementarity to try these persons in Uganda. Indeed, the Amnesty Act would have effectively prevent the Government from pursuing prosecution and this could have been interpreted as a sign of the State’s inability or unwillingness to prosecute such crimes and therefore justify the ICC to take over.
2. Second, the Act interfered with victim’s right to an effective remedy. Since the Act stipulated that no form of punishment could be imposed by the State against reporters, this could have prevented victims from seeking a civil remedy for the violations they have suffered. This was in clear violation of the ICCPR as well the Uganda Constitution on the right to effective remedy. This issue was particularly grave when considering the situation of formerly abducted girls who were forced into marriages and had children while in captivity. Their victimization did not end with the granting of amnesty. Worse still, the amnesty process itself permitted the original crime to be perpetuated, as “forced wives” saw their only alternative to survival was to maintain their relations with their commander/bush husbands where domestic andsexual violence could continue without accountability for these crimes. Alternatively, women had to weigh the burden of providing for their children whilst former “bush” husbands are not.
3. Thirdly, the Act compromised
the victim’s right to truth since it did not impose any requirement on the reporters for full disclosure on their participation in
the conflict (cf. conditional amnesties).
The
application for amnesty, in effect, only required that the reporter give a
broad indication as to which rebel group he or she participated in and what types
of activities the person was involved in (direct combat, collaboration, etc).
For children, reception centres staff used to fill out the amnesty forms.
Additionally, because the amnesty process was linked to demobilisation and reintegration, a number of returnees, in particular former abductees and forced wives, were not be willing to go through the amnesty process to obtain amnesty certificates and were therefore excluded from demobilisation and reintegration programmes. For example, many abducted women played support rather than combat roles and are unwilling to accept implied responsibility for participation in armed rebellion associated with receiving an amnesty certificate. This also pointed to a disproportionate focus on former combatants without sufficient regard to the needs of their victims. This ultimately affected community reconciliation in the broader transitional justice context.
Because of its illegality, the blanket amnesty granted under the Amnesty Act was not internationally binding and could not bar prosecution of individuals implicated for such crimes in foreign jurisdictions acting under the principle of universal jurisdiction.
III. End of the 2000 Amnesty Act
On May 23, 2012, the Minister of Internal Affairs Hillary Onek:
- Declared the Lapse of operation of Part II of the Amnesty Act, by virtue of section 16(3) of the Amnesty Act (as amended in 2006) which provides that; “The Minister may by statutory instrument, declare the lapse of the operation of Part II of this Act”.
- Extended the expiry period of Part I, III, and IV of the Amnesty Act (sections that deal with the settling and integration of former rebels) for a period of 12 months by virtue of Section 16(2) of the Act. The Amnesty Commission will thus continue its reintegration activities with reporters for one additional year.
The statutory instruments were subsequently signed, and gazetted on June 1, 2012. On 20 July 2012, the Internal Affairs Minister Hillary Onek clarified that:
"On May 23, 2012, through statutory instrument 34 of 2012, Part II of the Amnesty Act expired. The implication of this is that the Amnesty Commission will no longer issue amnesty certificates to individuals who return from rebellion seeking amnesty for crimes committed during war or rebellion against the Government of Uganda."
The government says the measure is meant to target 'high ranking' militants of the Lord's Resistance Army (LRA) and to allow the pursuit of justice against perpetrators of war crimes and crimes against humanity. Critics fear that it will also discourage lower ranking rebels from laying down their weapons.
What are the implications of the Declaration of Lapse of Part II of the Act?
By declaration of the Lapse of Part II of this Act, Amnesty in Uganda has ceased. Hence it is nonexistent. From the 25th May 2012 (day on which the Act took effect), any person engaging in war or armed rebellion against the Government of Uganda, shall if investigated be prosecuted and punished for such crime if found guilty.
What is the implication for those already issued Amnesty Certificates?
Those already issued amnesty certificates are still protected by the law. According to Article 28(5)(f) of the Constitution of the Republic of Uganda; “ no person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence”. Therefore, they will not be prosecuted for crimes for which they have already received amnesty/pardon. They should continue reporting to the Amnesty Commission so that they are reintegrated, resettled and reconciled with their communities.
What is the Future of the Amnesty Commission?
Part I, III and IV of the Amnesty Act were extended for a period of 12 months. Part III of the Act, establishes the Amnesty commission, a demobilization and resettlement team, and elaborates its functions among other provisions.
Extension of Part III means that the Amnesty Commission will continue resettling, demobilizing and reintegrating those reporters/persons who have already received amnesty during the one year extension period. However, it will not be able to legally issue new Amnesty certificates.
Part IV of the Act provides for the duration of the Act and prescribes for regulations for the resettlement of persons and generally for better carrying out the provisions and principles of the Act.
IV. Particular cases
A. Joseph Kony
The expiration of the Amnesty Act seems to put an end to discussions over whether LRA leader Joseph Kony could be pardoned if he is ever caught. Indeed, few legal observers had stated that Kony, and four of his top commanders, could have been eligible for amnesty, despite being wanted by the International Criminal Court (ICC).
B. Thomas Kwoyello
The end of the amnesty potentially complicates the case of Thomas Kwoyelo, a mid-ranking LRA commander who was captured by Ugandan forces in 2009. Kwoyelo was accused of commanding rebels who murdered civilians in various northern Uganda locations. While in detention, Kwoyelo renounced rebellion and sought amnesty. His amnesty request has not been granted. Despite recent rulings from both Uganda's High Court and its Constitutional Court that he was entitled to amnesty, Kwoyelo remained in Luzira prison as the Porecutor refused to grant him amnesty as he faces charges of international crimes. The case is now before the Supreme Court.
With the lapse of the amnesty Commission's mandate to issue Amnesty certificates, the fate of Kwoyello hangs in the balance. If the Supreme Court overturns the Constitutional Court ruling, he would have to be tried over his involvement in the war crimes. But even if the Supreme Court rules in favor of Kwoyelo, it is unclear if the Amnesty Commission will be allowed to issue the necessary certificate now that the Amnesty Act has been stripped of its amnesty.
C. Caesar Achellam
The expiry also cancels chances for Ceaser Acellam, the fourth highest-ranking member of the Lord’s Resistance Army (LRA), who has been captured by the Ugandan army in May but had not yet applied for Amnesty by the expiry of the Act.
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