ASF’s annual report is available!

The Avocats Sans Frontières team is delighted to present its latest annual report.

We have come a long way since ASF was founded in 1992 by a group of Belgian lawyers. Over these 30 years, hundreds of people have contributed to making the organisation what it is today: a militant organisation active in a dozen countries, working to promote access to justice and the rule of law based on human rights, in close collaboration with local actors.

These thirty years of action, the local roots we have developed and the links we have forged with human rights defenders from the four corners of the world give us a great deal of strength and confidence as we look to the future and continue to deploy impactful action in the service of populations in vulnerable situations (women, children, the LGBTQI+ community, ethnic minorities, people in detention, people in migration, etc.).

But the challenges are many. All over the world, civil society organisations and human rights defenders are faced with worrying developments and trends: the rise of authoritarianism, the shrinking of civic space, growing public distrust of institutions, heightened social tensions, etc.

Defenders of human rights and access to justice have to work in contexts that are increasingly hostile to them. The very notions of human rights and the rule of law are being called into question. Activists, lawyers and journalists working to defend the fundamental rights of populations in vulnerable situations are increasingly systematically targeted by repressive policies.

Every page of this report bears witness to the vigour of the flame that drives those who are committed to upholding human rights at the very heart of our societies, at the risk and peril of their own freedom. This report is a tribute to each and every one of them.

ExPEERience Talk #9 – Using digital to support victims and promote justice: the Back-up project of We are NOT Weapons of War

  • When? Thursday, 4 May 20231pm (Brussels)
  • Language of the presentation: French
  • Online (Big Blue Button)

For this 9th ExPEERience Talk, we are delighted to welcome Céline Bardet, founder of the organisation We are NOT Weapons of War (WWOW) whose mandate is to fight sexual violence in conflicts, in particular against rape as a weapon of war. She will talk about the importance, in the face of these issues, of support – particularly legal – for victims, but also of awareness-raising and advocacy on a global scale.

During this Talk, Céline Bardet will present the development process of the Back Up project, launched by WWOW in 2018. This project aims to address the three major challenges posed by war rape: the inability for victims to access appropriate services; the lack of coordination of the professionals involved; and the lack of reliable data on the extent of sexual violence in conflicts. It is a digital tool, accessible on mobile phones, encrypted and secure, which allows victims to report and transmit evidence, and professionals involved to better coordinate. After an initial pilot phase, Back Up is now being deployed in several countries, including Ukraine and the Democratic Republic of Congo.

This Talk will be an opportunity to present the genesis of the project, as well as the development and functioning of the tool. What was the process used to make it a tool that best meets the real needs of victims and that can be easily used by everyone, even in the most fragile contexts? How can we ensure the security of the data collected andthe security of the victims? What is the process for the appropriation of the tool, in wartime contexts, by local partners and victims? Céline Bardet will discuss the development methodology and the scope of this digital project, which serves not only the victims but also the collection of evidence and data and, ultimately, advocacy against sexual violence in conflicts.

Thomas Kwoyelo trial: Prosecution moves close to wind-up presenting its witness

ASF working with victims

“Any further delay with this trial is a dark spot on our part as Judiciary” – ICD

The Trial of Thomas Kwoyelo resumed on 17th April 2023 and is scheduled to run up to the end of the month at the International Crimes Division of the High Court (ICD) sitting at Gulu High Court in Gulu City, Northern Uganda.

Having commenced the trial on 24th September 2018, the court had its first prosecution witnesses testify in March 2019 and since then trial sessions have been held periodically between Kampala and Gulu. The most recent was in Gulu between 28th November and 15th December 2022 where 14 prosecution witnesses were prepared and presented to substantiate the grounds against the accused, bringing the total number to 48 prosecution witnesses so far.

In an interview with a member of the prosecution team he confirmed that the case has close to 120 witnesses but that not all of these will be presented, to avoid repetitive evidence.

“We are reviewing available evidence and picking the best among the pool. Some Witnesses are aging and losing memory while others have since passed on, so from what is available, we evaluate and pick the best from the stock”

Counsel Charles Kamuli- Prosecution team member

It is hoped that within these two weeks, Prosecution will be able to close presenting its witnesses. This will pave way for the defense team to begin presenting their own witnesses in the next sessions later in the quarter pending availability of funds. Later there will be a victims’ session where the victims’ counsel will present their own witnesses.

Thomas Kwoyelo, captured in 2009 by the Uganda People’s Defense Forces, is arguably one of the longest-accused persons on pre-trial detention in the history of International Criminal Justice. To ensure that the case progresses, the ICD set a timeframe of holding quarterly sessions, but there has been a lack of consistency in practice. However, the court believes it can conclude the case within one and a half years, provided that funds continue to be released quarterly as planned.  “This delay is a dark spot on our part as the judiciary in as far as justice is concerned”, said the Head of the ICD who is also an alternate judge in this case.  “The victims are so concerned, and so is the accused; he is not being tried as he should, having been in incarceration since 2009. Now that the government has committed resources, we are all committed to pushing the case forward” the Head of the ICD remarked.

The defense team though, in a separate interview, held a different viewpoint on the timeframe within which this trial will be concluded given the uniqueness of the trial and the pace at which things are moving forward:

“Given the uniqueness of the case, a witness needs ample time to narrate their story and share their account, you can’t tell how long that story is, they need time. It takes time to call upon a witness to recollect that painful ordeal that happened 20 years ago and often times this leads to a psychological breakdown during the thought process. In such situations, the court cannot proceed, it has to be adjourned to give the witness time to get composed and put themselves together.”

Counsel Evans Ochieng, a Defense team member

The trial is proceeding at a very slow pace due to the insufficient financial resources that are required for a trial process that involves so many parties. The trial has four Judges, four prosecutors, four defense attorneys, two victim counsels, and a huge team of court staff including the IT team setting up the video links, the Court Assessors, the Interpretation team, court clerks, the rapporteurs, the documentation team, media team and so forth.

“It’s hard to project when the case will end especially in situations like ours where you have money this quarter and not sure whether you will have money next quarter.”

Counsel Evans Ochieng- Defense team member

Under the principle of positive complementarity[1],  national institutions like the International Crimes Division of the High Court in Uganda should have the necessary capabilities to effectively and efficiently handle investigations and prosecution of international crimes under the Rome Statute[2]. To this end, ASF has provided support to the ICD to develop and evolve its capacity. For instance, through the provision of technical support for the development of the ICD’s Rules of Procedure and Evidence and the guidelines on Registry Management. ASF has also engaged in capacity-building of the court, providing support to victims’ lawyers and broadly enhancing victims’ participation. To ensure the sustainability of these efforts, ASF, with its partner ICTJ, embarked on a study that led to the development of a Judicial Bench Book, which is an authoritative reference resource on the practice and procedure for the criminal prosecution of international crimes. ASF’s support has in many ways helped the relatively young institution that is the High Court to operate in line with the required international standards, thereby enhancing its capacity to deliver on its mandate as well as its international credibility and recognition.

Being victim-centered is at the core of ASF’s transitional justice strategy and this has informed the nature of our interventions. Working collaboratively with grassroots organizations such as Foundation for Justice and Development Initiative (FJDI), Gulu Women Economic Development and Globalization (GWED-G), and the Victims Counsels, we have conducted outreach where information regarding the trial has been disseminated and feedback from the victim communities sought. Radio talk shows have also been organized where court officials and other stakeholders discuss pertinent issues arising from the trial and where victim community members can call in and have their say on the state of affairs surrounding the trial and the possible next steps. This has been powerful in ensuring that victims are informed and aware of what is happening but also in ensuring that their views inform court officials on what victims think and perceive of the whole process.

ASF welcomes the government of Uganda’s adoption of the National Transitional Justice Policy, a comprehensive and key framework designed to address past human rights violations with the aim of promoting justice, accountability and reconciliation which are key pillars in achieving sustainable peace.  However, there is a need to expedite the enactment of the legislative instruments to operationalize the policy and ensure that victims achieve justice.

In the meantime, victims grapple with real life-threatening issues that need urgent and immediate attention. For instance, some victims returned with bullets in their bodies that necessitate surgical and rehabilitative processes to have these removed from their bodies. Others were victims of sexual violence who need medical support to address their reproductive and other enduring consequences of the violence as well as psychosocial support to manage their trauma.

There are also challenges regarding the both social and familial integration of children born in captivity and the reintegration of their mothers who suffer from stigmatization within the communities. To extent sometimes that the victims and their children have been forced to leave their communities and try to settle in urban centers and towns. Faced with this stigmatization and difficult living circumstances, some survivors have committed suicide or harbor suicidal thoughts.

In the absence of any interim support to address the long-lasting impacts of the violence and human rights abuses they have suffered, victims are concerned that by the time delayed justice is served, many will have already died and that justice will therefore not serve its intended purpose.

[1] Fidelma Donlon (2011), The International Criminal Court and Complementarity From Theory to Practice, pp. 920 – 954,Cambridge University Press.

[2] This principle envisions a coordinated approach to the prosecution of crimes by the International Criminal Court and national authorities. This points to a two-tiered policy to combat Impunity where ICC initiates prosecution against those who bear the greatest responsibility for crimes under Investigation and on the other hand encourages national trials where possible for the lower-ranking perpetrators. Such a principle would encourage the use and admission of information and evidence collected by the ICC before National Courts like the International Crimes Division of the High Court in Uganda. Article 93(10) (a) of the Rome Statute equally encourages such cooperation

This policy brief was written by Jimmy Wamimbi with valuable input from Faridah Kyomuhangi, Simon Mallet, Irene Winnie Anying, and Valérie Arnould.

Witchcraft representations and judicial treatment of the offence of Charlatanism and Witchcraft Practices in the Central African Republic

Pénalisation des Pratiques de charlatanisme et sorcellerie en République centrafricaine

Witchcraft, an omnipresent element of centrafrican culture and society

In the Central African Republic (CAR), witchcraft is omnipresent: it dominates and shapes the daily life of the population, especially in rural areas. Witchcraft representations, which are an integral part of Central African customs and practices, provide an explanatory framework for all life events: death, illness, accidents, professional or academic failures, etc. The successive crises that have shaken the country since 2013 have reinforced the use of witchcraft as an explanation for the diverse misfortunes the popluation has experienced. An increased involvment of religious bodies in the ‘fight’ against witchcraft has also been noted during that perido.

In the Central African Penal Code, Articles 149 and 150 condemn ‘charlatanism or witchcraft practices likely to disturb public order or harm people or property’, including practices that cause ‘serious injury or permanent disability’ or ‘death’. Accusations of witchcraft, based on these two vague and imprecise articles, are very common and frequently lead to an outburst of violence by popular vindictiveness against the accused person: exclusion, lynching, or even, in the worst case, brutal execution. These allegations are used to get rid of people who have become undesirable in the community and disproportionately affect the vulnerable and isolated, especially elderly women.

The judicial treatment of the offence of charlatanism and witchcraft practices

The legal vagueness surrounding charlatanism and witchcraft practices (CWP) is acknowledged by most actors in the Central African judiciary and is a breeding ground for arbitrary decision-making. Judges tend to rely on their own convictions and beliefs when dealing with witchcraft cases. Moreover, faced with the difficulty of providing material proof of an act of witchcraft, most judicial actors consider the confession of the accused person as the ultimate evidence, regardless of the motives of the accused in making the confession, which is often used for purposes of social appeasement and/or personal protection. Furthermore, social pressure from the community and the so-called protection of public order, which is invoked as a higher principle, have a strong influence on the judges’ decision-making and even divert the course of justice in order to satisfy the majority of the population.

Furthermore, judicial intervention is not in capacity to ensure the protection and reintegration of those accused of CWP. By prosecuting a person for CWP, the court attests to the reality of her or his witchcraft and the convicted person will remain vulnerable to further convictions and even further violence (even after release from prison). Justice also has the effect of formalising the omnipresence of the witchcraft risk, contributing to the effervescence of such types of discourse. In the event of an acquittal, the population, mostly distrustful of the judiciary, may seek justice for themselves, indirectly encouraged by the apparent passivity of judicial institutions in dealing with the violence inflicted on accused persons.

Action by ASF and its partners

Since 2021, thanks to the support of the European Union, ASF and its partners (Centre for the Promotion of Children’s Rights (CPDE), Organisation of Young Leaders for Development (OJLD), Maison de l’enfant et de la femme pygmée (MEFP) and Défis et Objectifs Centrafrique (DOC)) have been intervening at the heart of the state and community justice systems by promoting access to justice and the defence of women accused of CWP. The observations presented above are drawn from the study ‘Witchcraft representations and judicial treatment of the offence of Charlatanism and Witchcraft Practices in CAR’. This study was commissioned by Avocats Sans Frontières as part of the project ‘Contributing to the sustainable respect of the right to a fair trial and human rights for women accused of witchcraft in CAR’, in order to further inform the organisation’s action and future interventions in this area.

Consolidating discussions on transitional justice: the debate on access to land rights in the Acholi sub-region

Uganda land

This article was originally published in the Annual Report 2021 of Avocats Sans Frontières.

In recent years, numerous and continued conflicts about land use and ownership in the Acholi subregion have led to strong debate among the Ugandan population. But the discussions surrounding this issue have too often omitted to include it in the broader debate around transitional justice.

These land conflicts mostly find their source in the aftermath of the war that took place between the Ugandan Government and the rebels of the Lord’s Resistance Army (LRA) from 1987 until the 2006 ceasefire. During that period, the rebels of the LRA targeted civilians and waged attacks on schools, public places and communities. This led to massive displacement of local populations into refugee camps called Internally Displaced People’s camps (IDPs). The extensive displacement and the death of elders during that period has divested local communities of land ownerships.

Access to land plays a crucial role in recovering from the effects of such conflicts but there is a true need to establish a linkage between land rights and the promotion of transitional justice objectives such as restitution. The 2019 Uganda National Transitional Justice Policy acknowledges the need to mitigate land conflicts in conflict-affected communities either individually or collectively.

ASF undertook research on access to land rights and transitional justice in Northern Uganda to establish the nature of justice paths undertaken by people in the Acholi sub-region in reclaiming their land rights. Using a purely qualitative methodology, the research established that victims of land conflicts use either statutory or traditional mechanisms to pursue justice but that they are unable to address land disputes satisfactorily and amicably. In many cases, access to justice and judicial outcomes are dependent on the individual’s social status. Women and youth find it harder to obtain satisfactory remedies due to their higher degree of vulnerability.

ASF advocates for a comprehensive land restitution strategy to be included in the broader transitional justice process. This includes the pillars of transitional justice processes: acknowledgment of the wrong suffered, truth-telling, investigation, and documentation. It is crucial to intensify efforts to ensure that land rights are fully respected, enforced, and restored in the return communities. In addition, ASF calls for the Government of Uganda to redefine processes of land acquisition for multinational companies and investors in ways that are transparent, accountable, and involve local communities to reduce mistrust and help build confidence in ongoing development initiatives in the region.

Reparation to victims of international crimes in the Democratic Republic of Congo, a major challenge in the fight against impunity

ASF has been active in the fight against impunity and the field of international justice for over 15 years in the DRC. During that time, the organization has witnessed great progress but regrets that current mechanisms are still not up to the challenges at stake.

As conflicts persist and condemnations in international crimes are more and more regular, victims still struggle to effectively receive the reparations that are granted to them by courts and tribunals. This represents a major issue as reparations are considered fundamental to achieving an effective process of reconciliation in the DRC. To this day, despite the 28 million USD granted to more than 3.300 victims, only one reparation ruling has been partially executed.

This obviously constitutes a major issue in itself but this is not the only problematic aspect about the reparations granted. Their form raises two major issues as well. First, they can only be granted through judicial decision, limiting access to justice for many victims. Secondly, Congolese law only allows the allocation of individual and monetary reparations.

The nature of the crimes committed, the prejudices suffered and their impact on large portion of the population require an adapted response. ASF considers that the Congolese legal system in its current state does not meet the standards required for these international crimes trials. International criminal law, for example, provides for the possibility of collective and non-pecuniary reparations, provisions which have not yet been incorporated into national legislation.

ASF addresses those challenges through its project “Pursuing the fight against impunity of grave crimes committed in the DRC”, funded by the European Union, and implemented in partnership with RCN Justice et Démocratie and Trial International. ASF’s and its partners’ strategy revolves around 4 axes: access to justice for victims, capacity building of field actors, awareness-raising and advocacy.

Thanks to the collaboration between ASF, its partners and the bar associations of Northern Kivu, Ituri and Maniema, more than 500 victims of international crimesinternational have been able to benefit from legal assistance in 2020. To make sure they benefit from the best services possible, ASF and its partners organized training sessions on reparations and their execution to the attention of lawyers, but also training sessions on data collection in the context of international crimes for civil society organizations.

Finally, ASF and its partners work to raise awareness of victims of international crimes and lead an advocacy effort to denounce the non-execution of the judicial decisions in favor of victims.

According to ASF, there is an urgent need for a thorough review of the place given to victims and reparations in the many international justice trials taking place in the DRC. For if these challenges are not met, the whole transitional justice process in the country is at risk. Its success is fundamental to enable the population to regain confidence in its institutions and to hope to achieve real reconciliation at national level.

The long walk: Uganda adopts a Transitional Justice Policy

On 17th June 2019, after a decade-long formulation and adoption process, the Government of Uganda finally announced the passing of the National Transitional Justice Policy (NTJP) and officially released it in September. The passing of the Policy is partly fulfilling the Government’s commitments on accountability and reconciliation that it made during the Juba Peace process, which started in 2006, as well as its constitutional obligations. The NTJP addresses the legal and institutional framework for investigations, prosecutions, trials within the formal system, reparations and alternative justice approaches. These matters are clustered into 5 key areas:
  • formal justice,
  • traditional justice,
  • nation building and reconciliation,
  • amnesty
  • and reparations.
The ultimate goal of the NTJP is to pave the way towards achieving peace, stability and social cohesion in Uganda. Why does a Transitional Justice Policy matter? The adoption of the NTJP raises hope in Uganda; especially for the victims who, for the past two decades, have been left with uncertainty on whether, when and how past violations committed against them would be dealt with. The text also provides an overview of how the relevant stakeholders can contribute to its implementation. The Policy specifically notes that whereas the Government will provide an enabling environment for its implementation, it will be implemented under a multi-sectoral, multi-dimensional approach that involves collaboration between various stakeholders. The necessary funding will not only come from the government itself but also from Civil Society Organisations (CSOs), development partners and other non-State actors in the private sector. The long walk to adoption The development of the NTJP originates from a broad consultative, participatory and inclusive process based on studies and research undertaken by the Justice Law and Order Sector (JLOS), as well as consultations with and by CSOs. In the early stages of formulation, the JLOD garnered views and contributions from civil society through its Transitional Justice Working Group initiative. It was later transformed into a Plenary, limited to only Government officials and consequentially eliminating CSOs from the process. In order to keep the momentum of the advocacy, CSOs took initiatives to hold consultative meetings within their networks and provide feedback to JLOS. They advocated for the adoption of the policy through providing platforms for stakeholders, including Members of Parliament through the Greater North Parliamentary Forum, and pushed to fast track its development. What next? In order to achieve its objectives, the NJTP implementation should not be delayed any further and it is important that some of its areas be clarified. First, the Ministry of Internal Affairs, which was entrusted to lead the implementation, should set up an effective coordination structure, able to implement policy directions across sectors and to coordinate the respective contributions of the multiple actors involved. In particular, the coordination structure should organize the participation of civil society organizations, as they have built strong and reliable interface with the policy’ beneficiaries in post-conflict areas, particularly with victims of human rights violations. Second, the policy, albeit a general framework, defaults a considerable part of its implementation modalities on the adoption of complementary legislations. Amongst others, the Policy makes the adoption of a Transitional Justice Act, and legislations on Witness and Victim Participation, Traditional Justice Mechanisms, and comprehensive reparations, preliminary requirements to its own implementation. Given the protracted process that led to its adoption, further bureaucratic delays could only add up to the general sense of fatigue among TJ stakeholders, victims in particular. Finally, the reparation area of the policy remains quite vague. The idea of a reparations fund, mentioned in earlier drafts of the policy, has now been left out from the final text, as the NTJP refers to a ‘consolidated fund’ without further details. The policy is further silent on the question of court-ordered reparations for victims of past atrocities and ignores the concrete avenues for victims to obtain reparations (including but not limited to financial compensation) through court processes. Overlooking the question of reparations would jeopardize the Policy’s objectives. Indeed, victims in Uganda have made it clear that they expect reparations above all other outcomes of their participation in accountability processes. The absence of a perspective on reparations is thus likely to take away victims’ main rationale to participate in criminal proceedings, a key element not only in fostering the fight against impunity but also in enabling criminal justice to fulfil its reconciliation and restorative functions. Continue reading “The long walk: Uganda adopts a Transitional Justice Policy”

Fatigue among the victims Regarding the case of Thomas Kwoyelo

Kampala, 16 May 2019 – In Uganda, ASF has been providing continuous support to communities who have been victim of the crimes for which Kwoyelo is being tried under the International Crimes Division (ICD). Last April, ASF led joint efforts with the Victim’s Counsel, the ICD Registrar and the International Center for Transitional Justice (ICTJ) to inform the victims’ communities of the latest trial developments, while collecting and relaying their views to relevant instances. During the various sessions held within the communities of Obiangic, Abera, Lamgoi, Perecu and Pabbo, many participants deplored their lack of information about the developments in the case. At the same time, a substantial number of them showed a rising loss of interest in the case. As put by one of the participants:

“This meeting is not important to us. We need to hear only results from the trial. This trial has been ongoing for so long. It should end soon so that we can get compensation for the harm we suffered.”

Perceivably, this attitude arises from the lack of direct involvement in the case as well as the protracted trial process which commenced in July 2011. The legal entitlements encapsulated in the various statutes providing for participation of victims are at risk of being rendered meaningless if these concerns are not addressed. The fact that victims keep suffering from the conflict’s aftermath (orphans unattended for, physical and mental impairments, etc.) only adds to the risk of diminishing the worth of legal proceedings to their eyes, as they are no longer seen as likely to  improve the victims’ current condition. While an important complement to truth seeking and justice efforts, interim measures, projects and interventions by both government and non-government actors have either beeninsufficient or ineffective in meeting the victims’ most basic needs. Besides, whereas the call for accountability is resounding in many victims’ communities, there concerns towards reparations are also consistently brought up: whowill receive reparation, who will pay them and what form will these reparations take? Beyond legal entitlements, criminal processes can only achieve restorative and healing functions if perceived as meaningful by victims and their communities.In the instant case, this can be done by:
  1. Ensuring constant and meaningful interaction between the victims and their legal counsels, since the latter ensure their participation in the trial.
  2. Managing victims’ expectations regarding participation in the trial and ensuring that victims understand the scope of their own agency in the justice process before the ICD: this also implies for the ICD and the Government of Uganda to clarify some relevant aspects of victim participation, suchas their right to reparation.
  3. Promote victims’ agency in exercising their participation rights: proposed efforts include physical attendance of the trial to follow court proceedings by victims through representatives.
  4. Better target interim support to victims: pending completion of the trial, there is a need for meaningful, effective and holistic interim efforts to support the victims where it matters the mostto them. ASF continues to advocate for the adoption of the draft Transitional Justice Policy in this regard.
Victim participation-related provisions and the incorporation of international criminal principles into the Ugandan domestic legal systemhave opened up unprecedented possibilities for victims to obtain justice in Uganda. As those are being used for the first time in the Kwoyelo trial, it is crucial that the right precedents are set so that victims’ right to participation can be considered a meaningful part of Transitional Justice efforts in the country.
Pictures © ASF
Continue reading “Fatigue among the victims Regarding the case of Thomas Kwoyelo”

A trial for history: Thomas Kwoyelo in Uganda

Kampala, 20 September 2018 – On Monday 24 September, the International Crimes Division (ICD) shall open the main trial in the case of Thomas Kwoyelo. This case is the first ever to be tried before a domestic court in the conflict that opposed the Lord Resistance Army and the Government of Uganda. ASF Country Director for Uganda raises concerns about the opportunity given for victims to participate and the lack of State support to the ICD. Who is Thomas Kwoyelo? What is the case about? Romain Ravet: Thomas Kwoyelo, alias Latoni, is a former LRA commander who surrendered to the Uganda People’s Defense forces in 2009. According to the prosecution, he was enlisted into the Lord’s Resistance Army (LRA) under the command of Joseph Kony and rose through the LRA ranks to become a ‘colonel’. Kwoyelo led a series of attacks, between 1993 and 2005, on the Abera Village and the Pagak and Pablo camps for internally displaced people, in what is today the Amuru District. The attacks resulted in abductions, killings, maiming and the torture of dozens of people, including women and children. In 2011, the Constitutional Court granted Kwoyelo Amnesty but, in 2015, the Supreme Court overruled it and held that he could be tried for acts committed outside “furtherance of the war”. case has been pending before the International Crimes Division, the domestic court with jurisdiction in crimes against humanity and war crimes in Uganda. The case started in 2011. Why is it taking so long? R.R.: Firstly, the issue of amnesty has proven complex to deal with. In 2000, a law was passed (and renewed since) to grant amnesty for all LRA soldiers who gave up their weapons. This law was instrumental in undermining the LRA and bringing about the peace negotiation process. However, the law conflicted with several provisions of the ICC Act and the Uganda constitution as it gave “a blanket” amnesty for all acts committed during the conflict, including crimes against humanity and war crimes. The debate hit a sensitive cord and got caught up in the classic peace versus justice dilemma. It took several years for the Supreme Court to clear the legal aspects and establish an exception to the amnesty law for specific crimes. Secondly, this case is the first ever to be tried under the ICD Rules of Procedure and Evidence, a special set of rules that aim to bring the ICD up to the standards of international courts. As a party to the Rome Statute, the ICD answers to the principle of complementarity, i.e. it has to be capable of dealing with cases of genocide, war crimes and crimes against humanity with the same standards as the International Criminal Court (ICC). The case is taking a long time because it creates unprecedented situations for the ICD. In 2016, the ICD started dealing with the pre-trial, a preliminary phase which seeks to establish “sustainable ground to believe” in the charges brought by the prosecution. This is more difficult than it sounds, because the charges against Kwoyelo are drawn from international law, which makes their application before a domestic court questionable. Likewise, in 2016, the pre-trial judge granted Kwoyelo’s alleged victims the right to participate at all stages of the proceedings. In a country where the criminal system is essentially suspect-centered, this ruling has broken new grounds, for which no playbook exists; the ICD has to innovate and create its own precedents. However, the pre-trial has shown that the ICD lacks the means to fully achieve this enormous task. For instance, the judges that make up the Court are not appointed full time to its work. For instance, the pre-trial judge has to combine her task with her daily management of the Mbale High Court, six hours drive away from Kampala. Additionally, the ICD has to implement new concepts, such as the participation of victims, which requires access to specific technical and material resources. Despite efforts from INGOs and development partners, these resources remain limited.
Community dialogue organised by ASF around the upcoming trial © ASF/R. Ravet
What happens next? R.R.: On 30 August, the ICD confirmed 93 counts of crimes against humanity, war crimes and other alternative crimes against Kwoyelo; his case now goes before a panel of three judges. This is what the ICD calls the “main trial”. The Court now has to hear evidence to determine Kwoyelo’s guilt “beyond reasonable doubts”. As ASF, we are mainly concerned with the effectiveness of the victims’ right to participate in the main trial. This entails two important elements: the victims’ participation in the hearings and the victims’ ability to seek reparations if the accused is convicted. ASF supports the two counsels appointed by the Court to represent the victims. We have filed applications for 98 victims to participate in the proceedings but their approval is still pending. We also support the counsels in reaching out to the victims to update them about the proceedings and collect their expectations. Victims are eager to participate in the case, yet their participation raises questions of material facilitation and security. ASF is also giving technical assistance to the Court and has mobilized civil society to cover some of these needs, but we cannot substitute for the State’s duty to implement the 2016 pre-trial ruling. In terms of expectations, our research shows that victims expect reparations above all. The accountability aspect is secondary for them, as communities remain divided on this case. Many in Northern Uganda remain sympathetic to the LRA cause (which does not mean they approve of their crimes) and even more people are skeptical about the relevance of trying Kwoyelo through the formal justice system; some would rather see him undergo traditional Acholi rituals of reconciliation and punishment. Therefore, the victims’ main interest is to get compensation for the harm they suffered. ASF has published Guidelines on court-ordered reparations that clarify all existing legal options. Options do exist, but if compensation depends on Kwoyelo’s solvency, this aspect will remain virtual. Beyond participation of victims, are there other challenges for the trial? R.R.: Of course! This case is a test-run for the ICD. It will have to demonstrate its ability to live up to international standards in all matters. Notably, the case of the prosecution relies heavily on witness testimony. As the Witness and Victim Protection Bill and the Witness and Victim Protection Unit are not in place, the prosecution is preoccupied by the safety of its witnesses. As for the defense, they also feel the consequences of the lack of the state support to the ICD. Kwoyelo’s counsels find it difficult to access possible witnesses for the defense and struggle with issues of translation and interpretation. All rulings, including the confirmation of charges, are in English, a language Kwoyelo does not understand. There again, civil society is trying to help but this is a State’s duty. What do you recommend going forward? R.R.: The ICD needs the full support of the Uganda government and other stakeholders. The Judiciary is concerned with giving this trial means that ordinary trials do not get. Yet, this trial is special in all aspects. The ICD’s ability to deal with international crimes will directly affect other pending cases, notably the Mukulu case which has huge implications for ongoing regional conflicts. Most importantly, many people in Northern Uganda rely on the trial to help them heal and move forward with their lives. The international community is also watching to see if the ICD will meet the test of complementarity with the ICC. Even if Kwoyelo gets convicted, victims have almost no chance to get compensation unless the State develops a special fund. A cynical rumor is spreading in Northern Uganda that one had better be “a victim of Ongwen than of Kwoyelo”. This is a dark expression of the victims’ frustration but it is also telling of the stakes at play. People affected by the conflict still live with open wounds, figuratively and literally. The narratives around the conflict are plural and complex: victims blame the State nearly as much as the LRA for their dire situation. The heated debates and the hopes of the early 2000s have given way to pessimistic discourses among the affected communities, people despair that the State has not done enough to help them recover from the conflict. The trial is a double-edged sword: its failure could widen the gap between the Northern population and the government but its success could help restore their relationship and bring some closure on the crimes of the past. Meaningful participation of the victims might be the factor that tips the scale in one direction or the other. >> Contact Romain Ravet, ASF’s Country Director for Uganda >> Download ASF’s observation report of the 24 and 25 September 2018 audience >> Download ASF’s brochure about the trial and the work of the ICD
Cover picture © ASF, Gulu, September 2016
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A beggar has no choice

Kampala, 12 July 2017 – Between February and April 2017, ASF conducted consultations with victims of mass atrocities in Northern and Eastern Uganda, about their views on ways to repair the harm they have suffered. The consultations took place in areas affected by the insurgence of the rebel group Lord’s Resistance Army (LRA). Their purpose was to get insight into LRA victims’ reparation needs and priorities, as well as their perceptions of ongoing discussions within the Transitional Justice Policy framework. We asked ASF Uganda’s Country Director to highlight issues raised during these consultations. What is the main finding of ASF’s study A Beggar has no Choice? ASF’s Country Director Romain Ravet: Our study highlights the need victims have for compensation for what they lost during the war. It emphasises that they be recognised as victims who suffered loss and are entitled to these reparations. During the consultations, we came to the unfortunate realisation that most victims view themselves as ‘beggars’. They are not beggars. They are rights holders who need to be recognised as such. Yet, they face a great deal of injustice because not only have they suffered from crimes in the past but they today struggle with daily life as a result of these past crimes. For instance, many women have endured sexual violence which is a highly traumatic experience. Yet, as they are not being recognised as victims of these crimess they do not benefit from support in trauma healing or caring of the children born of war or rape. This is highly problematic: as unrecognized victims of traumatic crimes, these people are marginalised, in the Ugandan society.  So, to be clear, what crimes are you talking of and how would one get about repairing them? The Lord’s Resistance Army (LRA) insurgency in Northern Uganda took place over a period of two decades starting in 1987. In January 2004, the Government of Uganda referred the LRA situation to the International Criminal Court (ICC). Upon investigation by the ICC, the LRA commanders were charged with allegedly committing war crimes and crimes against humanity. The results of these atrocities left many victims wounded physically and psychologically. There is dire need for psychosocial support to heal their minds and enable them to become fully functional members of their community. There’s also a need for access to public services, clean water, vocational training for their children, and agricultural tools to mention a few. ASF’s study details their needs and how these needs can be provided. What is causing this delay in the implementation of reparations for victims of crimes? There is a draft Transitional Justice Policy which is supposed to set up comprehensive mechanisms for truth telling, reconciliation, accountability and reparations of past crimes but it has not yet been tabled before Parliament. However this should not be an excuse for victims not to be granted reparations. Through various consultations, victims have clearly stated what it is they need. Government, civil society, development partners and other concerned stakeholders should come in to provide tangible support to victims. Government development programs are a responsibility of the sitting government to its citizens and should not be viewed as reparations. In what ways do you think providing reparations will restore victims’ dignity? No reparation can fully restore victims’ dignity, but some measures can bring relief to them. Providing free education to their children will allow them to envision a better future for themselves and their children. Better health services will physically relieve them of pain they are suffering and allow them to work to make a living. For instance one victim said she could no longer dig in her garden because of the physical pain she still lives with from the gunshot wounds. Lastly, victims today live in a marginalised situation. There‘s an urgent need to empower them so their voices can be heard again. We believe that the law is a very adequate language to voice one’s needs and aspirations. Being able to frame one’s claim with legal standards does a great deal to get the claim across to and understood by the actors which bear the duty of guaranteeing human rights. As such, we believe that it is crucial to turn victims of atrocities into active right-holders, able to function within the Uganda society by being aware of their rights and being accompanied into claiming them. What is ASF’s final plea to Uganda’s Government and Parliament, to CSOs and development partners regarding reparations for victims? ASF would like to make a plea to listen to the victims voices. They have specific needs and some of the support being offered is not compatible with their reality. ASF would also like to suggest that tangible long term support is offered in lieu of one-off efforts. **** ASF has actively pushed for victim participation before the International Crimes Division (ICD) of the Ugandan High Court through spearheading the development of the Rules of Procedure and Evidence for the ICD, draft ICD Bill and the draft ICD Registry Guidelines. All these documents include provisions on how victims can participate before the courts and how best they can be represented. ASF has also worked closely with victims lawyers in the Thomas Kwoyelo case through training and trial monitoring. Most importantly, ASF has interfaced with victims through outreaches and information sessions where victims are empowered to know their rights. The study A Beggar has no Choice was made possible with the support of the MacArthur Foundation.
Cover picture: Field consultations on Reparations in Northern and Eastern Uganda © ASF
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