I read with interest the remarks of his Lordship Justice Moses Mukiibi in the media. The learned judge in an address to the Parliamentarians For Global Action Conference held at Parliament to commemorate International Justice Day, is reported to have slammed the Amnesty Law for frustrating the International Crimes Division (ICD) Court, which he heads, in its effort to try ex- combatants (rebels) who may have committed war crimes and crimes against humanity.
His argument was that such rebels should not be allowed to seek amnesty but should instead be tried in his court. The learned judge also argued that Uganda has failed in its duty which it owes to the international community and that the Amnesty Law has made the ICD “walk naked without work”. This was echoed by the Director of Public Prosecution (DPP).
I wish to remind Ugandans that since January 21, 2000 when the Amnesty Act became law, it has come to represent for many ordinary Ugandans the hope that conflicts in this country can be ended peacefully.
The Act owes its origin to the determination of the people of Uganda to seek reconciliation with those who have inflicted so much pain and suffering through conflict. The preamble of the Amnesty Act expresses the wish of Ugandans to end suffering and to reconcile with insurgents who may have committed atrocities. In exchange, Ugandans ask that the insurgents stop inflicting needless suffering on others.
It should be noted that more than 26,000 potential killers have been persuaded to abandon rebellion and embrace peace in return for grant of amnesty.
The Amnesty Commission’s work is, therefore, to receive and re-integrate these “ born again” insurgents back into their communities and to make sure that ex-combatants understand their duty to renounce and abandon violence.
The reporters (ex- combatants) then surrender their weapons in their possession. Amnesty, according to the Act, is given once. Recidivism (or going back into rebellion) is not tolerated. This is to guard against impunity as a rebel who re-offends cannot be granted amnesty again, to guard against impunity. This also allows the DPP to play a part as the Amnesty Commission has to consult him before any accused person can be considered for Amnesty.
It is, therefore, not correct that the DPP has no role to play in the matter. The Principle of complimentarily is also respected and the Amnesty Commission also respects the ICD and the International Criminal Court (ICC), as currently, the Amnesty Commission will not grant amnesty to the following categories of ex- combatants.
a) Those who re-offend (go back into rebellion willingly after grant of amnesty.
b) Children- mainly under the age of criminal liability for example, 12 years and below.
c) Convicted persons (those already convicted by the courts for the same crime).
d) Those indicted by the ICC who include Joseph Kony and four others.
e) Non- Ugandans
f) Those excluded by the Minister of Internal Affairs through Parliament (S. 2A Amnesty Act) (Amendment).
This, therefore, means that the amnesty given is not exactly blanket.
Amnesty is a necessary evil. Evil in that you are setting free people who may have committed atrocities. Necessary in that you are looking at the prize of peace and security. There are fewer issues of law and policy as complex and divisive as a question of when and whether to grant amnesty for atrocities. Circumstances leading to the invocation of amnesties still abound and I dare say will continue to do so as long as there are rebels out there negotiating the laying down of arms, stop killing innocent people or even repressive dictators negotiating the terms of their departure as was the case with Argentina and other South American countries.
Amnesty in its original sense was a tool to wipe the slate clean or bury the memory of certain past events so as to stop the carnage and senseless killings (as was the case with the LRA, the ADF and other brutal rebel movements) so as to focus on the future. Such amnesties are about mercy as well as pragmatism. The idea was to make a fresh start with former enemies. Amnesty is, therefore , a tool of social rebuilding and of imposing a rapture with the past so as to amend broken relationships that would need to continue into the future especially when there is neither a clear winner nor a clear loser.
Take the case of LRA for instance. Kony’s method was terrible as he would abduct young people and force them into rebellion. Even if the government of Uganda chose the method of annihilating these unfortunate children who could have been your or my sons or daughters no one would celebrate as Uganda will have lost its children forcibly recruited into war!
Amnesty is, therefore, a necessary evil in such a complicated situation. As one writer put it, amnesty is a concept wrought with contradictions and paradoxes but cannot be wished away very easily. On the one hand it conjures feelings of benevolence and virtue that are extolled by the religious and cultural traditions of most societies and on the other it contradicts the rule of law and seems to violate basic notions of justice like the good judge seems to point out.
Amnesty seems to say “Though you have harmed us terribly, for the sake of the future we will leave you alone”.
Mr Twinomugisha is the chief legal adviser, Uganda Amnesty Commission.