THE REPUBLIC OF UGANDA
REPORT OF THE COMMITTEE ON DEFENCE AND INTERNAL
AFFAIRS ON THE PETITION ON THE LAPSING OF PART II OF
THE AMNESTY ACT, 2000
AUGUST 2013
1
SECTION I
1.0
INTRODUCTION
1.1.
The petition of the traditional and religious leaders and civil society
organizations in the areas affected by the Lord‘s Resistance Army (LRA)
in Uganda, the Democratic Republic of Congo, the Central African
Republic, on the lapsing of the operation of Part II of the Amnesty Act
Cap 294 (as amended) was presented before the House, in consonance
with rule 29 of the Rules of Procedure of the Parliament of Uganda, on
Wednesday on 5th September 2012 by Hon.
Felix Okot Ogong (NRM,
Dokolo). The petition was thereafter referred to the Parliamentary
Committee on Defence and Internal Affairs for consideration. The
Committee has considered the petition and hereby tables its report.
2.0
BACKGROUND
2.1
On May 23rd 2012, invoking powers conferred by section 16 of the
Amnesty Act, the Minister of Internal Affairs, through Statutory
Instrument No. 34 of 2012, revoked Part II of the Act. This part of the
Amnesty Act generally provides for the declaration of Amnesty for any
Ugandan who has at any time since the 26th day of January 1986
engaged in or is engaging in war or armed rebellion against the
government of the Republic of Uganda. It contains the amnesty granting
provisions: it is the heart of the Act. The Minister‘s statutory instrument
declaring the lapse of Part II in effect expunged that part of the Amnesty
Act in its entirety. Thenceforth, no Ugandan could benefit from the
amnesty.
3.0
The Amnesty Act Cap 294
2
3.1
In order to prudently appraise the implication of the lapsing of Part II of
the Amnesty Act, it is crucial to examine the history, purpose and scope
of the Amnesty Act which was enacted in 2000.
3.2
The word Amnesty
is derived from the Greek word ‗amnestia' and is
construed as: "A pardon extended by the government to a group or class of
persons, usually for a political offense; the act of a sovereign power
officially forgiving certain classes of persons who are subject to trial but
have not yet been convicted"1. It includes more than just pardon, in as
much as it obliterates all legal remembrance of the offence.
3.3
The history of amnesty in Uganda predates the National Resistance
Movement
(NRM)
government.
Since
independence,
Uganda
has
frequently used formal amnesties to respond to political crises, often with
some success. It was used by Idi Amin in 1978 to encourage exiles to
return
to
Uganda.
In
1987,
the
National
Resistance
Movement
government, following its seizure of power, enacted an Amnesty Statute,
offering amnesty to all opposing forces who surrendered, including those
directly involved in the fighting and those who supported the combatants
politically or financially, as well as those who had worked for former
regimes in the police, army, prisons and security forces.2 It has been said
that the enactment of a formal amnesty law in 2000 was a bid to move
away from the policy of presidential pardons to a more institutionalized
amnesty process.3
Bryan A. Gardner (ed.). 2009. Blacks Law Dictionary (9th ed.). St. Paul, MN: West, p99. In
practice, however, the scope of each amnesty is to be determined by the definition adopted by
the enacting instrument.
2 Barney Afako, ‗Reconciliation and Justice: ―Mato Oput‖ and the Amnesty Act‘ in Okello
Lucima (ed), Accord: Protracted Conflict, Elusive Peace: Initiatives to end the violence in northern
Uganda (Conciliation Resources, London, UK 2002)
3 There is however doubt as to whether a Presidential pardon, outside of the prerogative of
mercy under article 121 of the Constitution, is legally possible in Uganda.
1
3
3.4
The enactment of the Amnesty Act in January 2000, was predicated on a
general desire to bring an end to the acute and often vicious violence that
had characterized Uganda as a polity since the 1960s. Such violence on
occasion led to violent regime change, gross disruption of the continuity
of state institutions, retribution, loss of life and property and general
disruption to social order. At the time when the Amnesty Bill was
introduced in the late 1990s, Uganda was experiencing several
insurgencies notably that of; the Lord‘s Resistance Army (LRA), the Allied
Democratic Forces (ADF), Uganda National Rescue Front II (UNRF II) and
the West Nile Bank Front (WNBF). Other less prominent rebel groups
also operated in different parts of the country.4 The introduction of the
Amnesty Act was therefore a key part of the Government‘s search for
non-violent alternatives for ending armed conflict and a desire to
promote reconciliation in Uganda, thereby to prevent future conflicts.
3.5
The rationale for the Amnesty Act is best encapsulated in the preamble5
to the 2000 Act:
“Whereas it is common knowledge that hostilities directed at the
Government of Uganda continue to persist in some parts of the country,
thereby causing unnecessary suffering to the people of those areas:
AND WHEREAS it is the expressed desire of the people of Uganda to end
armed hostilities, reconcile with those who have caused suffering and
rebuild their communities:
The Amnesty Commission records show that the Commission has processed applications for
amnesty from nearly 30 groups.
5 A change in the style of national legislation following a revision of laws exercise led to the
removal of preambles from all Acts and this preamble no longer features in Cap 294.
4
4
AND WHEREAS it is the desire and determination of the Government to
genuinely implement its policy of reconciliation in order to establish peace,
security and tranquillity throughout the whole country”
Preamble to the Amnesty Act 2000
3.6
The preamble emphasizes that:
(i)
The Amnesty Act was necessitated by the need to address the persistence
of damaging armed rebellion in Uganda (implying that military means
were a necessary but not a sufficient response to civil conflict).
(ii)
There was within Ugandan society as well as Government a consensus
on the necessity to promote reconciliation as a pre-condition for
sustainable peace in Uganda.
The Amnesty Act substantively provides for the following:
i).
The declaration of an amnesty to be granted to any person (a ―reporter‖)
who renounces rebellion and surrenders any weapon in his or her
possession (This is contained in Part II of the Act).
ii).
Institutions (the Amnesty Commission and the Demobilisation and
Resettlement
Team)
to
facilitate
the
repatriation,
demobilisation,
resettlement, and reintegration6 of reporters and generally to implement
the provisions of the Act.
iii).
The promotion of dialogue and reconciliation in affected communities
with respect to the adverse impacts of armed rebellion. The aspiration
towards reconciliation represents ―the spirit of the Act‖.
Other elements of the Amnesty Act include the following:
This includes practical reintegration, such as the provision of skills, as well as social
reintegration.
6
5
i).
In terms of scope, it was comprehensive insofar as any Ugandan involved
in armed rebellion could benefit from the amnesty as long as they
genuinely exhibited repentance by renouncing and abandoning rebellion
and surrendering any weapons in their possession.7
ii).
In terms of duration, the amnesty was subject to renewal, but the issues
was to be determined by the extent to which the objects of the Act had
been fulfilled: i.e. armed rebellion had been addressed and reconciliation
promoted.
iii).
In-terms of its target, the amnesty was offered by the Government to
benefit its political opponents. There was thus no policy justification for
extending to amnesty state actors who commit crimes in the context of
their duties.
iv).
In terms of process, the procedure was simplified so that amnesty could
be accessed by any person who fulfilled the requirements of renunciation
of rebellion and repentance, with the amnesty certificate serving only as
evidence of entitlement to amnesty.
Amendments to the Amnesty Act in 2002 and 2006
3.7
In 2002, following concerns expressed by the President that the amnesty
might be abused by people to escape from prosecution and return to
rebellion, an amendment (section 5A) was introduced to prevent a person
who after receiving amnesty returned to rebellion from benefiting again
from the amnesty.8
Section 5A introduced in 2002 clarified that those who return to rebellion after receiving the
amnesty would be ineligible for further amnesty – this underscores that the amnesty is not
‗blanket‘, but requires genuine repentance and good faith on the part of the claimant.
7
8
The section makes an exception in cases were the person has been coerced to return to rebellion.
6
3.8
In 2006, the Amnesty Act was amended to introduce two new provisions:
(a) a new section 2A, which allows the Minister to declare, with the
approval of Parliament, an unsuitable person to be ineligible for grant of
amnesty; (b) a new Section 16 which empowers the Minister to extend
the period of operation of the Act and to declare the lapse of the
operation of Part II of the Act through a statutory instrument. It is this
provision that the Minister of Internal Affairs invoked on 23rd May 2012.
Impact of the Amnesty Act
3.9
The impact of the Amnesty Act can be assessed, inter alia, by considering
the response to the offer of the amnesty. By May 2012, when the Part II
of the Act lapsed, a total of 26,288 reporters from 29 different rebel
groups had been issued with amnesty certificates by the Amnesty
Commission, and many had been assisted to return to the community.
This represents a daily average of 7 reporters per day. Of these, 12,971
(under half) are former combatants from the LRA.
3.10 Since Part II was revoked, individuals have continued to return from
rebellion, including from the LRA, however, the Amnesty Commission
has not been able to offer them certificates or appropriate reintegration
support.9 It is impossible to know how many individuals have slipped
back into communities without the option of resettlement by the
Commission.
4.0
Rationale and Effect of Lapsing Part II of the Amnesty Act
9
At the end of March 2013 a batch of 28 women and children were released by the LRA in the Democratic
Republic
of
Congo,
some
returning
to
Uganda:
see
news
report:
http://seattletimes.com/html/nationworld/2020717018_apafugandalra.html.
For
detailed
statistics on continuing LRA activities and escapes from captivity see LRA Crisis Tracker, an initiative of Invisible
Children and The Resolve: http://www.lracrisistracker.com/. It is reported that the majority of the Ugandan
adult returnees had responded to encouragement to defect.
7
4.1
It appears that the decision of the Minister of Internal Affairs was
premised on the assumption that the amnesty had run its course, that
LRA conflict was over, and, consequently, that the lapse of the Amnesty
Act would have little, if any, consequences and, finally, that amnesties
violate
international
and
domestic
law
obligations
perpetrators of gross violation of human rights.
4.2
to
prosecute
10
To recap: the implication of the decision of the Minister to declare the
lapse of Part II of the Amnesty Act is that no one is now able to benefit
from amnesty in Uganda. The Petitioners argue that Uganda is still
bedeviled with armed rebellion. It is a matter of fact that the LRA and the
Allied
Democratic
Forces
(ADF)
remain
active,
albeit
in
other
neighbouring countries. Although the theatre of war is beyond the
borders of Uganda, it is still Ugandans perpetrating this armed violence.
Another relevant feature of the ongoing rebellions is that ranks of
combatants is swelled by those who were forcibly conscripted. The
Committee has analysed these issues in the light of the Petition and the
Prayers of the Petitioners.
5.0
THE PETITIONERS AND THEIR PRAYERS
5.1
This petition of the traditional and religious leaders and civil society
organizations was signed by the following;
i).
Archbishop John Baptist Odama (Acholi Religious Leaders Peace
Initiative);
ii).
Kenneth Oketta (Prime Minister-Ker Kwaro Acholi)
iii).
Mark Avola (Gulu NGO Forum);
This is a reflection of the opinion of the Minister of State for Internal Affairs, Hon. James
Baba during his appearance before the Committee on the 24th January 2013, and reflects other
views, within the Justice Law and Order Sector
10
8
iv).
Francis Odongyoo (Executive Director, Human Rights Focus, Gulu);
v).
Lucy Akello (Justice and Peace Commission, Gulu);
vi).
Retired Bishop Macleod Baker Ochola (Kitgum Archdiocese);
vii).
Sheik Musa Khelil (Chief Khadi of Acholi);
viii).
Retired Bishop Onono Onweng (Diocese of Northern Uganda);
ix).
Source Opak (Iteso Cultural Union);
x).
Ojok Boniface (Justice and Reconciliation Project);
xi).
Anthony Kerwegi (Concerned Parents Association);
xii).
Ojera James Latigo (Uganda Historical Memory and Reconciliation
Project);
xiii).
Patrick Loum (Acholi Religious Leaders‘ Peace Initiative);
xiv).
Mzee Yusuf Adek (Elder/Rwot)
xv).
Santo Okema (Ker Kwaro Acholi)
5.2
The Prayers: This petition contained the following prayers;
1. To revise the decision of the Honourable Minister for Internal Affairs in
lapsing the provisions of Part II of the Amnesty Act and restore in its
entirety the expunged provisions;
2. To resolve that Statutory Instrument No.34 of 2012 issued by the Minister
for Internal Affairs on May 23 2012, be revoked;
3. To direct the Minister for Internal Affairs to immediately develop and table
before this House appropriate regulations and clear criteria for the
exclusion of certain individuals from benefiting from amnesties as provided
for under section 2A of the Amnesty Act (as amended); and
9
4. To direct the Minister for Internal Affairs and the Amnesty Commission to
develop and table before the house clear procedures and plans for the
promotion of reconciliation as required by section 8 of the Amnesty Act (as
amended).
5.3
The effect of the above prayers is twofold: (a) to secure, through
Parliament, the reinstatement of Part II which would reinstate amnesty
in Uganda, and (b) to secure the full implementation of the amnesty Act,
including provisions promoting accountability.
6.0
METHODOLOGY
6.1
In the consideration of the petition, the Committee;
i).
Held meetings with the following;
1. The Petitioners;
2. Amnesty Commission;
3. Mr. Barney Afako - an internationally acclaimed Ugandan lawyer and
expert on transitional justice;
4. The Minister of Defence;
5. The Minister of Internal Affairs;
6. Representatives of the Justice Law and Order Sector (JLOS);
7. The Director of Public Prosecutions (DPP);
8. The Refugee Law Project
ii).
Reviewed the following documents;
1. The Rome Statute, 1998
2. The International Criminal Court Act, 2010
3. The Final Peace Agreement and annexes of the Juba Agreements.
4. The Geneva Conventions of 1949
5. The Geneva Conventions Act
10
6. The Amnesty Act 2000 (as amended)
7. The Petition
8. Several Journals and Publications (As per the attached references)
iii).
Field visits to the Northern and West Nile regions of Uganda
iv).
Analysis of available data such as budgets, previous committee reports
and performance reports
v).
Consulted
resource
persons-lawyers,
academia
and
Civil
Society
Organizations
6.2
Composition of Committee Members
i.
Hon. Milton Muwuma
–
Chairperson
ii.
Hon. Simon Mulongo
–
Deputy Chairperson
iii.
Hon. Phinehas Katirima
–
Member
iv.
Hon. Patrick Mulindwa
–
Member
v.
Hon. Saleh Kamba
–
Member
vi.
Hon. Kipoi Tony Nsubuga
–
Member
vii.
Hon. Margret Makokha
–
Member
viii.
Hon. Fredrick Mbagadhi Nkayi –
Member
ix.
Hon. George-Michael Mukula –
Member
x.
Hon. Benny Namugwanya Bugembe –
Member
xi.
Hon. Peter Okeyoh
Member
xii.
Hon. Theodore Ssekikuubo
–
Member
xiii.
Hon. Rose-Lily Akello
–
Member
xiv.
Hon. Hussein Kyanjo
–
Member
xv.
Hon. Kezekiah Mbogo
–
Member
xvi.
Hon. Cyrus Amodoi Imalingat –
Member
xvii.
Hon. Emmanuel Peter Eriaku –
Member
xviii. Hon. Kaps Hassan Fungaroo –
Member
–
11
SECTION II:
OBSERVATIONS AND FINDINGS
7.0
AMNESTY
IN
UGANDA:
THE
RATIONALE
AND
COUNTER-
ARGUMENTS
7.1
There is an ongoing debate in Uganda over whether or not to maintain
the amnesty as a tool for conflict resolution in Uganda. Two main views
emerge: the first, as represented by the Petitioners, is in support of the
Amnesty Act, and the second is in support of the lapse of the Act. In fact,
on closer examination, there is a third strand, with arguments on both
sides calling for improving, through implementation or legislation, the
amnesty process. The Committee now considers the issues raised in the
debate.
8.0
ARGUMENTS IN FAVOUR OF THE AMNESTY
8.1
The proponents of continued amnesty, such as the Petitioners and the
other stakeholders with whom the Committee has met, argue that the
removal of amnesty will grossly undermine the task of conflict resolution
by discouraging groups from engaging in peaceful settlement of their
differences with the Government.
8.2
It is argued that the revocation of amnesty without an end to the
prevalence of Ugandan rebel forces is unrealistic. The LRA and the ADF
remain operational and largely unpredictable rebel forces, operating
beyond the borders of Uganda in parts of South Sudan, the Central
African Republic and the Democratic Republic of Congo. There is no
authoritative indication of their numerical strength and military
capability, but current estimates put the number of armed LRA fighters
12
around 300, accompanied by another 800 to 1200 people, consisting of
women, recent abductees, and children, including those who were born
in the bush.11
8.3
According to the supporters of the amnesty, it cannot therefore be said
that the business of the Amnesty Act has been accomplished. Whilst
there might be an absence of gun-fire in Uganda, for as long as
Ugandans remain under arms outside the country all cannot be said to
be well. With the bulk of the armed insurgents comprising abducted
children and young adults, many of whom are Ugandans forcefully
conscripted into rebellion, the uncertainty surrounding their fate in the
absence of amnesty poses a threat to the future stability of Uganda and
the region at large.
8.4
The supporters of the amnesty are concerned that with the lapsing of
Part II of the Amnesty Act there is now no legal protection for returnees
from prosecution (whether by private or public prosecutors)12. The
supporters of the amnesty argue that the risk of prosecution presents a
disincentive to those who may wish to defect or escape from such groups
as the LRA, ADF and others. This argument also featured in the
representations of the Ministry of Defence to the Committee. The key
concern underlying this objection to the lapsing of the amnesty is not so
much that prosecutions would in fact be carried out, but that the
possibility of prosecution is a disincentive for any person seeking to
abandon insurgency.
8.5
Thus even if in practice the DPP would not institute proceedings against
individuals, the theoretical possibility of prosecution either by the DPP or
Kasper Agger; The End of Amnesty in Uganda: Implications for LRA Defections, The Enough
Project ; August 2012
12 A prosecution can be brought by private persons as well as public bodies, other than the
DPP, although the DPP may take over a prosecution but cannot discontinue a third party‘s
prosecution except, with the leave of Court, (article 120 (3) (c) & (d), Constitution of Uganda).
11
13
other parties would still deter combatants from surrendering. The
prospect of prosecution is of course associated with long periods of pretrial detention and imprisonment, often in difficult conditions and this
adds to the disincentive for abandoning insurgency, especially for higher
ranked rebels. The removal of the amnesty also hands to the enemies of
Uganda a propaganda tool for keeping combatants under arms. The net
effect of all this would be to perpetuate war and armed conflict, with its
well-known adverse impacts.
8.6
A further argument, which also runs through the Petition, acknowledges
that indeed horrendous crimes may have been committed by insurgents,
but notes that the vast majority of the rebels were forcibly abducted,
many at a very tender age. They have been coerced into committing the
atrocities which now repulse society. This presents society with a moral
and legal dilemma because on the one hand the perpetrators are
themselves victims but at the same time they have inflicted grievous
harm upon communities.
8.7
Supporters of the amnesty contend that the Government which bears a
constitutional responsibility to protect its citizens, was unable to prevent
their abduction.
Thus, a strict moral distinction between victim and
perpetrator, which would justify the application of retributive justice, is
not appropriate in these circumstances, which are perhaps most sharply
manifested in relation to the composition of the LRA.
8.8
During a meeting of the Committee with CSOs in Northern Uganda in
February 2013, it emerged that the majority of civil society, local
communities, victims, and former LRA combatants in northern Uganda
would like the amnesty to continue and to be extended to LRA rebels.
The extensive support for amnesty among local communities, especially
in northern Uganda, is thus premised mainly on the necessity for a
14
national mechanism that promotes the interests of peace, reconciliation
and healing, and on the conviction that the retributive criminal justice
alone is an inappropriate response to the insurgencies that have plagued
Uganda.
8.9
The Committee has also had regard to research indicating extensive
support for the Amnesty Act especially in LRA-affected areas. The Gulubased Justice and Reconciliation Project found in their 2011 research
that an overwhelming 98% of respondents across northern Uganda
―thought that the amnesty law was still relevant and that it should not be
abolished.‖13 A similar research conducted by the same Justice and
Reconciliation Project in March 2012 also found general support among
northerners for the renewal of the Amnesty Act14. These findings are in
general mirrored by other research findings, although some also refer to
the need to promote reparations for victims alongside the amnesty.
8.10 The Committee should note here, that those opposed to the amnesty also
cite other research findings suggesting opposition to amnesty within
affected communities.
8.11 In the view of the Committee, it is important to approach these issues of
peace and reconciliation policy on the basis of a range of political, social
and moral considerations, which are often not properly canvassed in
surveys. The Committee must therefore reflect on the full range of
considerations raised by the amnesty, focusing on the national interest,
Justice & Reconciliation Project, ―To pardon or to Punish? Current perceptions and opinions
on Ugandan‘s amnesty in Acholi land,‖ 2011. Available at, http://justiceandreconciliation.com/wp-content/uploads/2011/12/JRP_Brief_Amnesty-Dec-20111.pdf
14 Justice and Reconciliation Project, ―Who Forgives Whom? Northern Uganda‘s Grassroots
Views on the Amnesty Act,‖ June 2012. Available at, http://justiceandreconciliation.com/wpcontent/uploads/2012/06/JRP-Amnesty-Policy-Brief-FINAL1.pdf
13
15
and the needs of affected communities, for peace, reconciliation and
recovery.
8.12 The advocates of amnesty further argue that rather than revoke the
amnesty, it would be more appropriate to shore-up the effectiveness of
the Amnesty Act and of the Amnesty Commission inter-alia through
allocation of more resources-financial, logistical and technical and
bolstering its staff capacity to enable the Commission efficiently and
effectively to implement its mandate. This would mean investment in
truth-telling and community dialogue as a part of the process of reintegration and resettlement of ex-combatants into communities. The gist
of this argument is that accountability, for crimes committed during the
conflict cannot be a matter only for the criminal justice system, but the
state must promote reconciliation alongside appropriate forms of
accountability such as truth-telling and other mechanisms that operate
within communities.
9.0
ARGUMENTS AGAINST THE AMNESTY
9.1
Although the Minister of Internal Affairs has not come out openly on the
rationale and circumstances for the revocation of the amnesty, the
Committee has had the benefit of information from the public domain
and from the submissions it received from the Minister, the DPP and the
Justice Law and Order Sector (JLOS) representatives, and from other
interactions with civil society actors. As earlier noted, two key reasons
can be gleaned for justifying the lapse of the amnesty: (i) that the
Amnesty Act has outlived its purpose, as the conflicts it was intended to
address have come to an end; (ii) the Act violates Uganda‘s legal
obligations under national and international laws.
9.2
The first objection to the amnesty, essentially asserts that the conditions
are met for a natural lapse of the amnesty. It is said that the Amnesty
16
Act was not intended to be a permanent fixture, and that conflict in
Uganda has now come to an end, or nearly died out completely. The time
has now come, according to proponents of the lapse of amnesty, to
address the past using other means.
9.3
The second objection to amnesty is one of principle: it advances legal
grounds for abandoning the amnesty. In fact, this ground would
supersede the first objection, since it maintains that the amnesty is
essentially illegal. The opponents of the amnesty maintain that there is a
conflict between the Amnesty Act and Uganda‘s other national and
international legal obligations, and that the Amnesty Act must yield to
those other obligations. Because of the fundamental nature of this
objection, we shall treat it separately under the heading of Legality of the
Amnesty.
9.4
The committee notes the context in which the objections to the amnesty
arose: it observes that the Executive faced internal pressure to remove
the amnesty, largely through the Justice Law and Order Sector (JLOS)
which includes by high profile judges, lawyers within the Ministry of
Justice and the DPP, with participation from the Uganda Coalition on the
International Criminal Court, or UCICC, which was founded in 2004 by
Human Rights Network-Uganda and other actors. The Joint Leadership
and Steering Committee of the JLOS played a key role and on 18 May
2012, it met to consider options of what to do with the Amnesty Act, and
settled on the lapse of Part II and prevailed upon the Minister to make a
declaration accordingly.
9.5
Tensions had arisen between the Amnesty Act and the intention of the
DPP to bring a case before the International Crimes Division (ICD) of the
17
High Court15, which is established to deal with international crimes
reflected in Uganda‘s laws, and includes cases arising from the LRA
conflict. The first case before the ICD was against former mid-level LRA
commander, Thomas Kwoyelo, who was charged for in September 2010
with offences under the Geneva Conventions Act.16 Kwoyelo had sought
amnesty but this had been denied, and he successfully challenged the
constitutionality of that decision before the Constitutional Court, but the
Attorney General has appealed the decision, and a hearing pending
before the Supreme Court, in which is currently non-functional for lack
of the requisite number of judges.17
9.6
There has also been diverse external pressure from some of Uganda‘s
development partners as well as agencies of the United Nations and other
international commentators who have policy objections to the amnesty.
All of this has impinged directly on the response of the Executive.
The ICD began life as the War Crimes Division, established by the High Court in anticipation
of the implementation of the Juba Peace Agreements.
16 Chapter 363, Laws of Uganda.
17 Thomas Kwoyelo v Uganda, Constitutional Petition No. 36/11 (Reference) (22 September
2011). Additional information on the Kwoyelo case can be accessed from
http://www.ucicc.org/index.php/icd/about-kwoyelo
15
18
The legality of amnesty and international law
9.7
During their interface with the Committee, the Minister of Internal Affairs
and the DPP articulated the argument that amnesty was withdrawn
because it was thought to be in contradiction with international law. In
particular, there was pressure from Uganda‘s international development
partners, including agencies of the United Nations, who prevailed upon
the Executive, arguing that the Act represented impunity for perpetrators
of international crimes.
9.8
It is argued that Uganda as a party to several international instruments
dealing with serious international crimes has thereby assumed an
obligation to prosecute such crimes. The DPP and the Minister of State
for Internal Affairs argued that the grant of amnesty as provided for by
Part II of the Amnesty Act was inconsistent with the Rome Statute of the
International Criminal Court (1998) (domesticated in Uganda in 2010) as
well as the Geneva Conventions of 1949, (domesticated in Uganda in
1964) which prohibit various international crimes, including genocide,
crimes against humanity and war crimes. Their drift was that Uganda
being a signatory to these international statutes has assumed an
obligation to fight genocide, war crimes and sexual and gender-based
crimes, amongst others. Uganda cannot therefore maintain an amnesty
law which prevents it from fulfilling these claimed international
obligations.
9.9
The Committee has now examined the legal merits of the objections
based on international law in the light of the following: (i) the
constitutional place of international law within the national system of
Uganda; (ii) the actual content of international law as it relates to
19
amnesties and obligations to prosecute any specified crimes; (iii) the
scope and nature of Uganda‘s amnesty.
International Law and the Constitution of Uganda
9.10 In their orientation towards international law, national legal systems
have traditionally been characterized as called ‗monist‘ and ‗dualist‘ legal
systems. In its purest form, a monist legal system makes no distinction
between national and international sources of law: international law is
directly applicable in such systems. In a dualist state, on the other hand,
international law is a separate system which does not apply in the
national legal order except by express incorporation, normally through
primary legislation. In modern practice, states, especially through their
courts, have developed a range of means of giving recognition to
international legal obligations of the State. Often, national courts will
interpret national law in the light of treaty provisions or other sources of
international law, even without their express incorporation into national
law.
9.11 In
Uganda,
several
provisions
of
the
Constitution
suggest
that
international law is not directly applicable in Uganda: under article 2, the
Constitution is supreme and any other inconsistent law or custom must
yield to it; pursuant to article 79 (2) of the Constitution of Uganda, ‗no
person or body other than Parliament shall have power to make provisions
having the force of law in Uganda except under authority conferred by an
Act of Parliament‘. Nevertheless, Ugandan courts have increasingly drawn
upon international human rights instruments in particular to interpret
constitutional provisions, and particularly to fill gaps. In those
circumstances, rather than directly applying international law, the
20
courts are in fact interpreting and giving effect to Constitutional
provisions.18
9.12 However, when the arguments about the constitutionality of the Amnesty
Act were canvassed in the Kwoyelo case, the Court of Appeal was
unanimous, and emphatic, that the amnesty, properly construed did not
contravene the constitution. It noted that there was no consensus in
international law about the status of amnesties. The Committee was
therefore
surprised
that
the
same
arguments
rejected
by
the
Constitutional Court surfaced in the justifications for revoking the
amnesty even though that decision still stands.19
Sources of International law
9.13 The sources of international law are classically contained in Article 38 of
the Statute of the International Court of Justice, 1945 (―the ICJ Statute‖).
They include treaties; international custom; general principles of law;
and judicial decisions and teachings of publicists (as a subsidiary means
for determination of rules of law).
9.14 In general, treaties are considered as the clearest source of international
law for the states parties. To qualify as international custom, a rule
requires two elements: practical recognition (state practice) accompanied
by an acceptance that the practice is required by law. Treaty and
international custom are generally regarded as the two primary sources
of international law, with treaties representing the clearest articulation of
For a discussion of the treatment of international law in Ugandan courts see: Henry Onoria,
Uganda, Chapter 25, in Dinah Shelton, International Law and Domestic Legal Systems:
Incorporation, Transformation and Persuasion, Oxford: Oxford University Press, 2011; also,
Henry Onoria, Application of International Law in Domestic Courts: Perspectives from Practice,
July 2010, (conference paper) http://www1.chr.up.ac.za/index.php/ildc-news.html;
19 Until reversed by the Supreme Court, the Constitutional Courts decision stands as good law,
and is binding.
18
21
international legal commitments.20 On the question of the status of
amnesties in international law, the debate is generally confined to the
content of treaty and custom obligations.
Treaties and Amnesties
9.15 Beginning the analysis treaties, the Committee found that there was no
multi-lateral treaty text that explicitly prohibits amnesties. The two
references in such treaties to amnesties are both in favour amnesties.
The 1977 Protocol Additional to the 1949 Geneva Conventions and
Relating to The Protection of Victims of Non-International Armed
Conflicts (―Additional Protocol II‖), whose article 6(5) ‗[a]t the end of
hostilities, the authorities in power shall endeavour to grant the broadest
possible amnesty to persons who have participated in armed conflict, or
those deprived of their liberty for reasons related to the armed conflict,
whether they are interned or detained’.21
9.16 The rationale behind article 6(5) was a recognition of the imperative to
promote reconciliation in the aftermath of internal armed conflict, the
very rationale that has been cited in the case of the Ugandan amnesty.
9.17 The other treaty reference to amnesty is to be found in article 6(4) of the
International Covenant on Civil and Political Rights, which permits
amnesty for all cases where capital punishment has been imposed.
Amnesty and the Rome Statute of the ICC
9.18 With regard to the Rome Statute, it should be noted that there is in fact
no provision of that treaty which outlaws amnesties, neither does the
For a discussion of the sources of international law and their relationship to each
other see: James Crawford, Brownlie’s Principles of Public International Law, 8th
Edition, Oxford: Oxford University Press, 2012, Ch 1; and, Malcolm N. Shaw,
International Law, 6th Edition, Cambridge: Cambridge University Press, 2008, Ch 3.
21 Uganda acceded to this treaty on 13 March 1991.
22
20
Statute impose any express obligation upon states to prosecute relevant
crimes.22 A prohibition against amnesties does not feature in the Statute
because during its negotiation the question of whether or not a provision
accepting the possibility of amnesties should be included in the Statute
was debated, but it failed to garner the relevant consensus. Instead,
States fell back on ‗creative ambiguity‘ by which the matter (of whether or
not the Court should respect a particular amnesty) was left to the
(future) prosecutor and judges to determine especially when applying the
principle and provisions relating to complementarity.23
9.19 Rather than barring national amnesties, the Rome Statute makes
national amnesties irrelevant to the exercise of the jurisdiction of the
ICC. Thus, under article 27 of the Statute, official capacity, including of a
Head of State or Government does not prevent the Court from exercising
jurisdiction over an individual. However, the fact that a head of state
does not enjoy immunity before the ICC does not mean that their
immunity under national law is cannot be recognized before national
courts. One cannot superimpose an international law rule on the
national system.
9.20 It is for this reason that when it came to the domestication of the Rome
Statute, section 19 of the ICC Act, omits any reference to article 27 of the
Rome Statute, and accordingly, does not permit national proceedings to
The sixth paragraph of the preamble to the Rome Statute recalls a ‗duty of every state to
exercise its criminal jurisdiction over those responsible for international crimes‘, but it is
significant—and undermines a claim of a general duty to prosecute deriving from the Rome
Statute—that this statement does not appear within the body of the Statute itself, and
moreover it makes no reference to prosecution.
23 See discussion in Mark Freeman, Necessary Evils: Amnesties and the Search for Justice, New
York, Cambridge University Press, 2009, pp. 75-84. The debate on amnesty took place against
the background of the Truth and Reconciliation Commission in South Africa, and it was
generally felt that the Rome Statute should not obstruct future processes of the kind adopted
in South Africa to aid the transition from apartheid, but states differed as to the how to achieve
this outcome and in the end left the language of the Statute sufficiently vague to enable judges
and the prosecutor to deal with the matter, particularly by reference to articles 17 and 53 of
the Rome Statute.
22
23
be instituted against the president. This is not surprising, given the
provisions of article 98 (4) of the Constitution, according to which, ―while
holding office, the President shall not be liable to proceedings in any
court‖.
9.21 Another misconception the Committee encountered was that the Rome
Statute imposes upon states parties a general obligation to establish
international crimes courts24 and to introduce criminal legislation in
order to prosecute ICC crimes nationally.
9.22 In fact, the only obligation under the Rome Statute to legislate is found
in article 88 of the Statute, which requires states to ‗ensure that there
are procedures available under their national laws for all of the forms of
cooperation which are specified under this Part‘. The forms of
cooperation referred to under Part 9 of that Statute relate to the
proceedings of the ICC, primarily arrest and surrender of persons subject
to arrest warrants of the Court as well as other forms of cooperation. No
express obligation is imposed upon states to establish special courts or
prosecute all persons who are not charged by the ICC. Of course states
parties wish to ensure that they can contribute to the objective of dealing
with international crimes and will legislate accordingly, but that is not
the same thing as asserting a legal obligation derived from the Statute.
9.23 In these circumstances, it is difficult to sustain the argument that the
Rome Statute requires national authorities to prosecute all offences that
might fall within the jurisdiction of the ICC.
24
Such as the International Criminal Division of the High Court of Uganda, supra, note 14.
24
Amnesty and the Geneva Conventions 1949
9.24 The
four
Geneva
Conventions25
principally
regulate
the
conduct
international armed conflict, with the exception of Common article 3
which relates to conflicts which are not of an international character.26
Each of the Conventions has a common article which imposes an
obligation to legislate to criminalise grave breaches of the Conventions.27
Accordingly, in October 1964, Uganda domesticated the Geneva
Conventions through the Geneva Conventions Act, Cap 363 (GCA) which
makes it a criminal offence in Uganda to commit a ―grave breach‖28 of
any of the four Geneva Conventions (see section 1 of the GCA). There has
been no similar domestication of the Additional Protocols I and II.
9.25 The first point to make is that the obligation to legislate is not the same
thing as an obligation to prosecute. There is no express prohibition of an
amnesty even in relation to grave breaches.
The Geneva Conventions of August 1949 are: the Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field; the Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea; the Geneva Convention relative to the Treatment of Prisoners of War; the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, 1949. They have been
amended by three protocols: Protocol I (1977) relating to the Protection of Victims of
International Armed Conflicts; Protocol II (1977) relates to the Protection of Victims of NonInternational Armed Conflicts; Protocol III (2005) relating to the Adoption of an Additional
Distinctive Emblem. Although Uganda has acceded to all of the Conventions and Protocols, but
only the Conventions have been domesticated through the Geneva Conventions Act, Cap 363.
26 Article 2 which is common to all the four Conventions applies the Conventions to a state of
declared or undeclared war between two or more of the Contracting Parties. There is therefore
an argument that the ―grave breaches‖ provisions – which are the criminal elements adopted by
the GCA, apply only to wars between states and not to internal armed conflicts.
27 Article 49 of the first Convention, 50 of the second Convention, 129 of the third Convention,
and 146 of the fourth Convention provide in identical terms that: ―The High Contracting Parties
undertake to enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches ...‖
25
25
9.26 The second flaw with a reliance on the Geneva Conventions is that
common article 2 limits the application of the Convention to conflicts of
an international character. In particular, the ‗grave breaches‘ relate only
to international conflicts and do not extend to breaches associated with
common article 3 (which imposes obligations in relation to noninternational conflicts). In this regard, it is significant that unlike
Additional Protocol I, Additional Protocol II of the Geneva Conventions
(which, like common article 3 relates to non-international armed
conflicts) does not include any ‗grave breaches‘ provisions.29 Instead, as
already noted article 6(5) of Protocol II encourages the broadest
amnesties to be extended to those involved in civil conflicts, in order to
foster post-conflict reconciliation.30
9.27 Further support for this position is gleaned from provisions of the
Geneva
Conventions
Act:
if
there
are
any
doubts
about
the
charaterisation of a conflict as being international, section 1(4) of the
GCA requires the matter to be clarified by the Minister (of Justice) before
any trial under the Geneva Conventions Act can proceed. This procedural
feature confirms that the Geneva Conventions offences relate strictly to
conduct during conflicts of an international character.
9.28 By contrast, the scope of the Amnesty Act, as reflected in section 2 of the
Act, is broader: it declares an amnesty with respect to Ugandans involved
in acts of ‗war or armed rebellion‘, which is primarily a focus on internal
conflicts. Even if the ambit of the amnesty extends to any Ugandan
involved in a conflict of an international character, the expectation was
Additional Protocol I introduces further ‗grave breaches‘, see articles 11 and 85.
These issues were discussed in illustrious detail by the South African Supreme Court in
Azania Peoples Organisation (Azapo) v President of South Africa (CCT 17/96) [1996] ZACC 16
(see paragraphs 28-32), where a challenge to the post-apartheid South African amnesty was
dismissed, with the Court citing the imperatives of national reconciliation. The Supreme Court
also doubted that the Geneva Conventions imposed any obligations relevant to the internal
conflicts of South Africa.
29
30
26
always that the vast majority of cases would relate to armed rebellion.
Accordingly, any alleged obligation to prosecute grave breaches of the
Geneva Conventions could not affect the Amnesty Act, whose focus is on
cases falling outside of those Conventions.
Torture and Genocide Conventions
9.29 Other arguments have been advanced to the effect that there is an
obligation to proscribe and punish the crimes of torture as well as the
crime of genocide.
9.30 It should be noted that under the definition of torture in article 1.1 of the
UN Convention Against Torture, 1984, only pain or suffering that is
inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity is recognised
as torture. Moreover, Uganda acceded to the Torture Convention in
November 1986, but has not yet domesticated the treaty and in
particular, Uganda has not introduced, as required by the treaty, the
crime of torture. In the absence of domestication of the Torture
Convention, its provisions cannot be used to declare unlawful the
provisions of an Act of Parliament. In any event, torture as defined in the
Convention is not relevant to the Amnesty Act of Uganda, since the Act
does not cover officially sanctioned or condoned acts.31
9.31 In the case of the Convention on the Prevention and Punishment of the
Crime of Genocide, 1948, here too, although Uganda acceded to the
Convention on 14 November 1995, it has not yet domesticated that
treaty.32
Section 2 of the Act, declares an amnesty only with respect to acts of insurgency, and thus
does not cover official but unlawful acts, including the actions of the security forces in the
course of their duties.
32 Although the crime of genocide is now punishable in Uganda under section 7 of the
International Criminal Court Act, 2010, that offence derives from the Rome Statute, and not
31
27
Amnesty and Customary International Law
9.32 As provided in Article 38 of the ICJ Statute, customary international law
can only be derived from the conduct of states when certain conditions
have been met. These are: (i) the conduct must be widespread, (ii) the
practices are followed by states over a significant period of time, and (iii)
the states view their conduct as warranted by law. There are primarily
two elements: state practice, and the belief that the practice is required
by law.33
9.33 Using the above yardstick, the Committee notes that certain regional and
national courts have made pronouncements against amnesties, based,
inter alia, on a duty to uphold entrenched rights of victims to justice,34 or
a general obligation towards the international community.35 Although
there is evidence that the use of amnesties is considered as controversial
and there are concerted efforts to prohibit amnesties in relation to
international crimes, it cannot be said that there has been the breadth
and consistency of state practice, accompanied by a legal conviction
(opinion juris), which would lead to a conclusion that a legal rule of
customary law has now crystallised which prohibits amnesties for
international crimes.36
the Genocide Convention, and therefore even if it could be shown that the Genocide Convention
imposes on states parties any obligation to prosecute, that obligation has not yet been
imported into the laws of Uganda.
33 The psychological element is encapsulated in the maxim opinio juris sive necessitatis often
simply rendered as ‗opinio juris’. In the Libya/Malta case, the International Court of Justice
reiterated that the substance of customary law must be ‗looked for primarily in the actual
practice and opinio juris of states‘ (ICJ Reports, 1985 pp. 13, 29).
34 See in particular decisions of the Inter-American Court of Human Rights in AlmonacidArellano et al. v Chile, No 45 (2006), Barrios Altos v Peru, 14 March 2001.
35 See decision of the Appeals Chamber of the Special Court for Sierra Leone in Kallon (SCSL04-15AR72(E)), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004,
para 73.
36 See a recent academic discussion of the status of amnesty international law, including
custom, in: William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War
Crimes Tribunals, Oxford: Oxford University Press, 2012, pp. 173-198; Also, Antonio Cassese,
International Criminal Law, Oxford: Oxford University Press, 2008, p. 314.
28
9.34 The reality is that States have never stopped adopting amnesties and
have been content to grant amnesties for serious crimes (for example,
South Africa, Mozambique, Tajikistan, Spain have all extended amnesties
in the context of ending internal conflict). An academic study of
amnesties derived from a database of over 500 situations, reveals that
the practice of amnesty has actually increased in recent years though the
amnesties vary in scope and purpose.37 Moreover, whenever the
opportunity has presented itself for states to formally disavow amnesties
in clear language in a treaty, they have not done so (this was notably the
case in relation to the Rome Statute). Against this background, it cannot
therefore be asserted that a customary law rule hostile to amnesties has
evolved.
Conclusions on international law-based objections to amnesty
9.35 The Committee has dwelt on the legal arguments at some length because
of the manner in which those who opposed the Amnesty Act have
invoked international law in particular.
9.36 The Committee agrees with the Constitutional Court in Kwoyelo that
despite certain assertions to the contrary, there is no treaty obligation
applicable to Uganda, neither is there any established rule of customary
international law, which prevents a state from adopting an amnesty in
relation to international crimes. In any event, as further discussed below
the Amnesty Act does not in fact rule out the possibility of prosecutions
or the promotion of other forms of accountability and reparations for
victims.
Lousie Mallinder, Amnesty, Human Rights and Political Transitions, Bridging the Peace and
Justice Divide, Oxford and Portland: Hart Publishing, 2008. The author has also publishes
subsequent illuminating articles on the amnesty debate:
http://www.academia.edu/177046/The_Role_of_Amnesties_in_Conflict_Transformation.
37
29
9.37 The Committee must report that in the course of its work, it became
concerned by a failure of due diligence on the part of the Executive in
appraising claims about status of international law. In particular there
was a notable failure on the part of officials to distinguish between
generally recognized international law obligations and aspirational
positions promoted by norm entrepreneurs.
9.38 Unlike national legislation, the development of international law is a
contested field of claim and counter claim, where assertions do not
always reflect reality, and in which it behoves state actors to have a clear
grasp of the politics of international law. The Committee notes that the
situation in Uganda is complicated by the fact that external actors,
including some development partners funding the JLOS, appear to have
exerted a disproportionate influence on the Executive‘s approach to the
amnesty issue, by promoting their own policy preferences.
Africa and the Development of International Law
9.39 There is, however, a broader political issue at stake here, which relates
not only to Uganda, but generally to the African continent: it concerns
the extent to which African values and priorities inform the content of
international law. There is a greater need for African states to be more
assertive in ensuring that their values are reflected in the development of
international law. In the area of conflict, Africa has faced several
challenges which many countries have overcome by giving priority to the
imperative to foster peace and reconciliation as opposed to retribution.
These are not unprincipled choices, but prioritizations based on the need
to secure the future of the nation. In Mozambique, South Africa, and
South Sudan, among others, African peoples have opted for alternatives
to ensure recovery from conflict, and to promote national cohesion and
30
reconciliation. These understandings must inform the development of
international law principles.
9.40 In sum, Ugandan Amnesty Act was an effort to draw upon community
values of reconciliation in the service of conflict resolution. Rather than
abandoning these African values African states need collectively and
individually to assert them at the international plane, so that they can
attain greater recognition as part of the body of principles that should
inform the development and understanding of international law.
Other Grounds for opposing the Amnesty
9.41 The Committee also encountered the argument that the amnesty as it
exists today does not cater for the interests of victims. This argument
relies on emerging principles on the international plane which privilege
victim reparation including through prosecutions. It also assumes that
victims are a homogenous group, all demanding retribution.
9.42 In fact in the Committee‘s experience, victims of the Ugandan conflicts
well understand the complexities involved, including the fact that in
some cases the perpetrators themselves are often victims. In reality the
advent of peace and stability, which is the goal of the amnesty, would be
a greater assurance to all victims the war is a thing of the past. And if
amnesty contributes to the attainment of such peace, communities have
demonstrated that they are willing to forego retribution for reconciliation.
9.43 Whilst it is a valid demand that the state should address the legitimate
needs of victims, that obligation of the State does not necessitate the
scrapping of the Amnesty Act.
10.0 THE TRUE SCOPE OF THE AMNESTY ACT
31
10.1 Section 2A: As already noted, in 2006, the Government introduced a
new section 2A of the Amnesty Act. It states as follows: “Notwithstanding
the provisions of section 2 of this Act a person shall not be eligible for grant
of amnesty if he or she is declared not eligible by the Minister by statutory
instrument made with the approval of Parliament.”
10.2 Although the above provision empowers the Minister, with the approval
of Parliament, to exclude unsuitable persons from the amnesty, the
Committee notes that previous attempts38 by the Minister to exclude
individuals have been unsuccessful, primarily because the Minister on
each occasion failed to make clear the criteria employed for seeking to
exclude the individuals. In both instances, the Minister tabled the
proposals directly on the floor of the House without any interaction with
the Committee. The Committee considers that a combination of clear
criteria and a rational procedure involving engagement with the
Committee would stand a better chance of realizing the potential of
section 2A. The Committee also acknowledges that it will be necessary
for Parliament to develop its own criteria and procedures for evaluating
requests from the Minister under section 2A.
10.3 In the Committee‘s view, it cannot be said that the potential of section 2A
has been exhausted. More effective use could be made of this provision to
ensure that those deemed unsuitable for the amnesty and deserving of
prosecutions are excluded. The Committee notes that the Constitutional
Court has made the same point in the Kwoyelo decision, emphasizing
that Cap 294 does not grant a blanket amnesty.
10.4 The Committee has carefully examined other provisions of the Amnesty
Act, and notes that there is a thread running through the Act which
The Committee is aware of failure by the Minister to exclude individuals in 2006, and
another on 13 April 2010.
38
32
requires that those who seek to benefit from the Amnesty must come in
good faith. Under section 3(1) of the Act, a person must genuinely
‗renounce and abandon‘ involvement in war and armed rebellion and
surrender any weapons in his or her possession. It seems to the
Committee that the Amnesty Commission is therefore entitled to test a
person‘s bona fides, and if he or she is found not be truly repentant (for
example, by holding onto a weapon), it is clear that they cannot benefit
from the Amnesty.
10.5 In the light of the above, the assertion that the Amnesty Act provides for
a ‗blanket amnesty‘, and is thus an obstacle to prosecutions, though
often repeated, is difficult to sustain in the light of the above provisions.
There is therefore considerable force in the Petitioners argument that
rather than do away with Part II, it was necessary for the Minister,
working with Parliament, to adopt the procedures for making use of
section 2A.
Promotion of reconciliation and accountability
10.6 Another area in which the Amnesty Act has been underutilized is in
relation to the broad powers under section 8, which requires the
Amnesty Commission, among other things to: promote reintegration of
reporters;
consider
and
promote
appropriate
mechanisms
of
reconciliation in the affected areas; promote dialogue and reconciliation;
and, generally, to perform any other functions that is associated or
concerned with the execution of the stipulated functions.
10.7 In the view of the Committee, it is clear from the breadth of section 8 that
the Commission should promote reconciliation between reporters and
those whom they might have harmed in the course of rebellion. This
33
process would in some cases require reporters to engage with their
victims in processes that might include truth-telling and the opportunity
to express remorse and receive forgiveness, as appropriate. Such
mechanisms would constitute alternative forms of accountability, and
would go a long way to address the demands of some communities to see
genuine repentance on the part of perpetrators. The Committee is not
aware that the Commission has systematically and consistently pursued
such a course.
10.8 Even on the question of reparations to victims, about which the
Committee heard several concerns, it seems to the Committee that the
promotion of reparations for victims, is a matter that can properly fall
within the ambit of the Commission‘s functions. This is a matter that is
clearly ‗associated or connected with‘ the functions of the Amnesty Act39
whose goal is to address the manifestations and adverse impacts of the
conflict.
10.9 The Committee is aware that in relation to all of the above matters, the
Commission might have felt constrained by the absence of clear
instructions from the Executive. In the view of the Committee, the
Commission would have been well within its rights to pursue these
objectives, including the matter of reparations for victims, but it would
be preferable if the Minister had exercised the powers under section 17 of
the Act to clarify the ambit of the Amnesty Act through make regulations
“…for the better carrying out of the provisions and principles of this Act”.
10.10 The point that the Committee wishes to emphasise here is that the
Amnesty Act, properly understood, and applied answers most of the
objections that have been advanced for its lapse. In the light of the above
conditions attached to the amnesty and the powers of the Commission, it
39
See section 8 (e) of the Amnesty Act.
34
seems to the Committee that the decision to lapse the Act was based on a
partial understanding of the full force of the Amnesty Act.
Transitional justice and the amnesty
10.11 The Committee further established that the Executive is developing a
Transitional Justice40 Policy under the oversight of the JLOS. At the time
of lapsing Part II of the Amnesty Act in May 2012, the Amnesty Act had
apparently been under review for 12 months by the JLOS. It is now said
that the transitional justice policy is due to be finalized within the first
half of 2013, and will contain proposals for replacing the Amnesty Act
with new legislation. In fact at the time that Part II was lapsed in May
2012, it was envisaged that alternative laws would have been introduced
by the end of 2012.
10.12 The genesis of the Transitional Justice programme of the JLOS was as an
initiative to implement the Juba Agreements on Reconciliation and
Accountability.41 The Committee established that the JLOS is accordingly
emphasizing the themes articulated in Juba Agreements, including the
need for
both formal and alternative justice and accountability
mechanisms such as traditional justice, truth-telling and reparations.
10.13 One of the supplementary justifications advanced for the lapsing of the
amnesty provisions what that alternative arrangements would be put in
place swiftly. There were problems with this assumption:
firstly,
legislation is a matter for Parliament and it is inappropriate for the
Executive to second-guess what might be approved by Parliament.
Secondly, the estimated timeframes provided by JLOS for alternative
Transitional justice is an emerging and evolving field which is concerned with the range of
measures employed by states to address past abuses or repression with the goal of ensuring
accountability, redress and non-repetition of past harm. Transitional justice measures include
trials, truth telling mechanisms, reparations for victims and other measures.
41 For a discussion of the relevance of the Juba Agreements to the amnesty see paragraphs
below.
40
35
proposals appear unrealistic, taking into account the Parliamentary
timetable and the involved process of adopting of legislation. Thirdly, the
political and other costs of disrupting the amnesty process, and
introducing a state of limbo, are very high if the intention is simply to
pave way for new arrangements.
10.14 Whilst the Committee recognizes the need for careful preparation of a
transitional justice policy for Uganda, it does not accept that it is
necessary or appropriate as a part of that exercise to lapse the Amnesty
Act, prior to the completion and legislative adoption of the alternative
transitional justice policy. In fact the Committee considers that the
Amnesty Act as it stands has been underutilized and misunderstood,
and is capable of delivering significant transitional justice goals.
11.0 RELATIONSHIP BETWEEN JUBA PEACE AGREEMENTS AND THE
AMNESTY ACT
11.1 The House will recall that during the negotiations between the
Government of Uganda and the Lord‘s Resistance Army/Movement in
Juba between 2006 and 2008, the parties negotiated (under Agenda Item
III) and adopted two key Agreements: (i) The Agreement on Accountability
and Reconciliation signed on the 29th June 2007 (―the Principal
Agreement‖) which was followed by (ii) the Annexure to Agreement on
Accountability and Reconciliation on 19 February 2008, (collectively, ―the
Agenda Item III Agreements‖).
11.2 Although the Final Peace Agreement was never signed by the Parties,
(because Joseph Kony, leader of the LRA leader did not turn up for the
ceremony), the Government of Uganda nevertheless undertook to
implement the Agreement unilaterally, and indeed the JLOS justified its
36
involvement in the development of a transitional justice policy on the
basis of the Government‘s commitment to implement the Juba
Agreements.
11.3 The Agenda Item III Agreements committed the Government of Uganda to
adopt appropriate alternative justice and reconciliation mechanisms to
address crimes committed during the conflict and to promote redress for
the victims through a combination of formal justice processes, truth
telling, traditional justice mechanisms and reconciliation measures, as
well as measures for making community and individual reparations to
victims.
11.4 In relation to prosecutions, the Annexure, in particular, provided for the
establishment of a special division of the High Court for the trial of
individuals who were are alleged to bear particular responsibility for the
most serious crimes especially crimes amounting to international crimes
during the course of the conflict.
11.5 It has been suggested that the Juba Agreements required the
abandonment of the Amnesty. In fact this could not be further from the
truth, both in terms of the understanding of the parties to the
negotiations, and also the content of the Agreements. The adoption of the
option of criminal trials was never regarded as being incompatible with
the continuation of an amnesty.
11.6 To the contrary, the Parties confirmed that the amnesty would continue
to be relevant by among others: affirming that the Amnesty Commission
was capable of implementing relevant aspects of the agreement;42
declaring that children would not be subjected to criminal proceedings,
but
42
43
could
participate
in
reconciliation
Clause 5.5, of the Principal Agreement.
Clause 12 (e), Principal Agreement.
37
process;43
requiring
the
Government, where necessary, to introduce amendments to the Amnesty
Act to bring it into conformity with the Principal Agreement.44 It is also
significant that the Principal Agreement limits prosecutions to those who
appear to bear particular responsibility for the most serious crimes,
especially crimes amounting to international crimes45 and thus leaves
the amnesty available to the other persons who fall outside of this class,
with such conditions as might be appropriate for each individual.
11.7 Thus, the Amnesty Act was envisaged as a necessary element of the
transitional justice architecture under the Juba Agreements, and
therefore the Juba Agreements could not be used as a justification for
lapsing Part II of the Act.
11.8 The Juba Agreements are a critical reference point because they were a
landmark achievement not only for Uganda, but also set a global
precedent, illustrating how a state can address past human rights
violations, using a whole range of mechanisms with an equal focus on
accountability and reconciliation. The Agreements, in general, were
guided by the National Objective and Directive Principles of State Policy
of the Constitution, especially those relating to the establishment and
nurturing of institutions and procedures for the resolution of conflicts
fairly and peacefully.46 The provisions in the Juba Agreements relating to
formal justice processes also recalled the constitutional duty of the
courts to promote reconciliation.47
12.0 QUESTIONS
ABOUT
THE
EFFECTIVENESS
COMMISSION
44
45
46
47
Clause 14.4.
Clause 6.1.
See Objective III, National unity and stability, paragraph (iv)
Article 126 (2) (d), Constitution of Uganda.
38
OF
THE
AMNESTY
12.1 In addition to its earlier observations about the underutilization of the
Amnesty Act, the Committee notes that there has been some criticism of
the performance of the Amnesty Commission. Some sources have
justified the revocation of the amnesty, and the winding up of the
Commission, on the basis that it has not managed to deliver adequate
reintegration support to individuals or to support victims of the conflict
with reparations.
12.2 Since its inception, the Amnesty Commission has suffered acute shortage
of the requisite funds to enable attainment of its targets. In the Financial
Year 2011/12, for instance, the Commission was underfunded to the
tune of UGX. 3.12bn while in the FY 2010/11 and 2009/10, the annual
funding gap averaged UGX. 3bn. Such funding shortfalls inevitably
compromise output and have affected negatively the implementation of
programmes of resettlement and re-integration, which are some of the
core functions of the Commission.
12.3 Despite the above, as noted earlier, prior to the lapse of Part II of the Act,
the Commission issued amnesty certificates to over 26,380 reporters,
although slightly over 5,000 have been resettled and re-integrated.
12.4 The Committee strongly recommends that instead of criticizing the
Amnesty Commission, the inadequate funding and staffing should be
addressed. The Commission should also be encouraged to solicit external
support so as to ameliorate the limitations of the narrow national
resource purse. This will be a more sustainable solution that the current
attempts to disband the Amnesty Commission all together.
39
SECTION III
CONCLUSIONS AND RECOMMENDATIONS ON THE FUTURE OF THE
AMNESTY
13.0 Summary of Conclusions
13.1 Beginning with the rationale for the amnesty, there is no question that
the conflicts which the Amnesty Act was designed to address still
continue although the rebellions have relocated to outside the country.
Rebels and captives continue to seek to return to Uganda. It is selfevident that there is still need for the amnesty as a response to the
ongoing insurgencies. The Committee also found strong support for the
amnesty in the affected areas. Its lapsing of Part II of the Act was
therefore premature and out of step with the sentiments of affected
communities.
13.2 The lapse of Part II has started to have negative effects within the
affected communities. The Committee has learnt that since May 2012,
former LRA combatants, in particular, including those who have already
received amnesty, now live in the fear that in the absence of amnesty,
they might be prosecuted, notwithstanding that they are in possession of
amnesty certificates. Recent statements from the DPP, during his
appearance before the Committee, indicate that this is indeed a likely
scenario, especially for higher ranking LRA commanders.
13.3 The Committee is alarmed by these developments, as such a move is
bound to precipitate fear, and discourage the return of rebels still at
large. Many people the Committee spoke to, including former LRA
fighters, believed that the removal of amnesty would discourage some of
40
the LRA combatants from leaving the group. The lapsing of the amnesty
therefore risks undermining social reintegration of individuals, and
community harmony and can create political disenchantment with the
Government.
13.4 The Committee has concluded on examination of the Act that the lapsing
of Part II was unnecessary since the Act already had sufficient provisions
to ensure the exclusion of individuals deemed unsuitable for the
amnesty, and thus to pave way for their prosecution. The Act also has
adequate
provisions
for
promoting
alternative
reconciliation
and
accountability measures including addressing the needs of victims, but is
only hampered by inadequate resources and diffident implementation.
13.5 Regarding
the
alleged
incompatibility
of
the
Amnesty
Act
with
international or national laws, the Committee, upon examination of the
arguments and the law, it does not share this view. The assertions that
amnesties for international crimes in general is inconsistent with treaty
or customary international law does not stand up to scrutiny, and
cannot be the basis for revoking the amnesty.
13.6 Although the Committee acknowledges the need to develop further
transitional justice mechanisms, it does not consider the Amnesty Act to
be inconsistent with transitional justice measures. The Committee has
noted the support for the amnesty within the Juba Peace Agreements.
13.7 Because there are sufficient powers under the Amnesty Act and other
laws to enable prosecutions to take place and to promote reconciliation
and alternative accountability measures with respect to reporters, the
Committee does not consider that it is necessary to enact fresh primary
legislation in order to reinstate the Amnesty and to give full application
to its provisions.
41
Need to extend the period of the whole Act
13.8 The Committee notes that on 23rd May 2012, by Statutory Instrument
No.35/2012, the Minister of Internal Affairs extended the operation of the
Amnesty Act for a period of 12 months, with effect from 25th May 2012,
and it is therefore due to lapse at the end of the 24th May 2013. The Act
as a whole is therefore due to lapse within a short period. The
Committee‘s conclusion that the lapsing of Part II of the Act was
premature extends to the whole Act. It will therefore be necessary, in the
view of the Committee, and for the reasons articulated above to extend
the Act for a sufficient period, to allow for its objects and purposes to
continue to be fulfilled.
14.0 RECOMMENDATIONS
14.1 The Committee will now consider the Petitioner‘s prayers, and, as noted
at the beginning of this report, it is important to approach the prayers
purposively, aiming to address the underly
14.2 ing objections to the lapse of Part II of the Amnesty Act. Another
consideration is that Parliament has no power to compel the Executive to
take certain steps.
14.3 However, Parliament can make resolutions aimed at bringing a situation
that requires redress to the attention of the Executive and indicating the
most appropriate steps for addressing the issue. The Committee, if
mandated by the House, stands ready to interact with the Minister and
relevant authorities to take forward the recommendations it has made.
42
1. To revise the decision of the Honourable Minister for Internal Affairs
in lapsing the provisions of Part II of the Amnesty Act and restore in
its entirety the expunged provisions;
This is, in effect, a call to revoke the Statutory Instrument by which Part II
of the Act was lapsed. Such an instrument can only be revoked either by
another instrument, or by superior legislation. Parliament does not possess
the power to revise a Statutory Instrument through a resolution, and
cannot therefore accede to this particular Prayer.
2. To resolve that Statutory Instrument No.34 of 2012 issued by the
Minister for Internal Affairs on May 23 2012, be revoked;
Parliament should accede to this prayer and the committee recommends
that the Minister revokes Statutory Instrument No. 34 of 2012. The effect of
the revocation be to restore Part II to the rest of the Act, and to allow the
grant of amnesty to individuals who have not been excluded.
3. To direct the Minister for Internal Affairs to immediately develop
and table before this House appropriate regulations and clear
criteria for the exclusion of certain individuals from benefiting from
amnesties as provided for under section 2A of the Amnesty Act (as
amended);
Although the Committee appreciates the reason that the Petitioners seek
the introduction of regulations, the Committee observes that the enactment
of regulations is not a legal pre-requisite for exercising the power in section
2A.
43
In the view of the Committee, upon the reinstatement of Part II of the
Amnesty Act, the Minister be at liberty to seek to exclude an individual on
an ad hoc basis as long as he or she discloses the criteria Parliament.
For its part, upon the reinstatement of Part II of the Act, the House tasks
the Committee to propose to the House the criteria and procedure by which
Parliament should engage with the Minister with respect to the application
of section 2A.
4. To direct the Minister for Internal Affairs and the Amnesty
Commission to develop and table before the house clear procedures
and plans for the promotion of reconciliation as required by section
8 of the Amnesty Act (as amended).
The Committee recommends that the upon reinstatement of Part II of the
Act, the Minister of Internal Affairs and the Amnesty Commission should
develop and adopt plans for promoting appropriate mechanisms of
reconciliation and the interests of victims generally along the lines that are
discussed in this report.
Other Consequential Resolutions
14.4 Extension of the whole Act
14.5 The Committee recommends that the Amnesty Act be extended for a
further period of two years upon its expiry on 24th May 2013.
14.6 Options in the Event the Executive Fails to Implement Resolutions
14.7 The Committee is alive to the possibility that the Minister might fail to
respond appropriately to the resolutions of the House. Given the
importance of the amnesty as discussed above, it is necessary for the
44
House the review the position and to take its own steps to advance the
recommendations in this report.
14.8 The Committee recommends that if within 10 days of the making of the
above resolutions the Minister does not revoke Statutory Instrument 34 of
2012, the Chairperson of the Committee shall be at liberty to introduce
before the House a Bill to give effect to the above resolutions of the House.
45