Global Policy Forum

By Kathambi Kinoti

Efforts to end the civil conflict in northern Uganda have brought to the fore the challenge of reconciling traditional and modern internationally agreed-upon concepts of criminal justice. In December 2003, Ugandan President Yoweri Museveni invited the International Criminal Court (ICC) to conduct investigations into the atrocities committed by the rebel Lord's Resistance Army (LRA), which is notorious among other things, for abducting girls and boys and forcing them to be soldiers, workers and sex slaves.

The Court has issued arrest warrants against the LRA leader Joseph Kony and five of his lieutenants. The attempts to apply international justice procedures, however, have not received unanimous support. There are some who would prefer to have justice applied according to traditional laws, and Museveni himself is reported to have indicated that if Kony asks for forgiveness, then the Ugandan government would not pursue justice through the ICC.

The most significant difference between the two systems of law is that international law as administered by the ICC, which is based on a Western model of justice, is primarily retributive, while customary Ugandan laws are primarily restorative and based on reconciliation. Should Kony be apprehended and found guilty of war crimes, he is likely to be imprisoned. In traditional Ugandan society the family or clan of a person found guilty of a crime would have to pay compensation to the victim and there would be a reconciliation process to restore the damaged relationship. To many inhabitants of the strife-torn region, it would not be justice to have Kony sitting in 'comfort' in the Hague. They would rather he face his victims and acknowledge the devastation they say he has caused. As 'justice is in the eye of the beholder,' a balance needs to be sought between international standards of justice to which most countries subscribe, and traditional concepts which are deeply rooted in the psyche of many people.

Uganda is not the only country in a conflict or post-conflict situation that has found itself dealing with the interface between different models of justice. Rwanda's reconstruction process used the traditional gacaca courts, and the African Union has recommended the use of traditional forms of reconciliation in resolving the Darfur crisis.

There are potential pitfalls in applying the traditional model of justice to a modern conflict.

· Traditional African laws are for the most part unwritten. This means that it is not always clear what the laws are as their interpretation can be ad hoc and modified to suit the occasion. Women are particularly adversely affected by the absence of written laws and it is believed that their rights and status has actually been eroded over time.

· Women play a pivotal role in bringing an end to conflict and in post-conflict reconstruction. UNIFEM's regional director for East and Horn of Africa Nyaradzai Gumbondzvanda at a recent press conference in New York said 'Women's roles are often undervalued or ignored, despite the fact that it is their right to participate on equal terms with men in all governance and decision-making processes. Formal peace negotiations that leave out half the population have limited hope of popular support.' As they are rarely involved in decision-making within the traditional justice structures there is the danger that they would be excluded from making a meaningful contribution towards justice and reconciliation.

· International human rights and criminal justice standards have provided substantial gains for women rights, such as bringing rape during war within the ambit of war crimes and crimes against humanity. To be just, application of traditional mechanisms would have to incorporate modern international human rights standards.

· Paul Omach, political scientist and senior lecturer at Uganda's Makerere University is reported as calling proposals to apply traditional justice 'a very dangerous proposition because it neglects that this is a war that is national in nature and has international dimensions.' [4] Kony is believed to be hiding in Sudan where his army is also carrying out atrocities against local communities.

The debate about the best way to resolve Uganda's civil war is likely to continue and whichever method is used is likely to have great implications for women.