Three former LRA abductees, Democratic Republic of Congo

Barney Afako is a Ugandan lawyer and expert on transitional justice. He was formerly a Trustee of Conciliation Resources.


Societies faced with intractable conflict inevitably seek ways of breaking out of the painful circles of violence. When confronted with unending war, policymakers as well as political and community leaders begin to question their approach to the situation. One of the questions they must address is whether or not a policy of blanket prosecution of combatants will prolong war.

Amnesty: the legal debates

For as long as war has existed, amnesties have been used for encouraging armed groups and combatants to abandon their fight.

However, in recent years, with developments in international criminal law, in particular, strong arguments have been marshaled against amnesties. It is said, for example, that: amnesties for international crimes are against international law; that there can be no peace without justice; that victims’ rights demand the prosecution of perpetrators and so forth.

The reality is that there is no major international treaty, which is the clearest expression of international law, which expressly outlaws amnesties. Moreover, states have continued to extend amnesties to a range of crimes. The classic example is that South Africa extended amnesty for apartheid – that incontestable crime against humanity.

Even those who make the highest claims for the abolition of amnesties will admit that (a) this is limited to certain international crimes, and (b) even then, prosecutions should focus on those who bear the greatest responsibility for the commission of those crimes.

Children, for example, are generally accepted to be excluded from automatic prosecution.

The point here is that there is no universal legal consensus against amnesties, and most formulations of the anti-amnesty position will allow amnesties to lower-level offenders and lesser crimes.

This is of practical significance because these two categories of persons constitute the majority of combatants whose defection is critical for ending conflict. Although the legal debate is an important one, and will continue to rage, policymakers can, and should, focus on what needs to be done about this majority.

Neither should policymakers feel stampeded by the legal discourse into investing in inappropriate and costly prosecutions infrastructure, but should instead explore the range of creative ways of ensuring that the minority is subjected to appropriate accountability mechanisms.

Background to Ugandan Amnesty

During the late 1990s, after years of conflict, the Government of Uganda was confronted with this dilemma. Conflict-affected communities started to make strong demands for the enactment of an amnesty law. They saw in an amnesty the possibility of bringing an end to the numerous rebellions, which were blighting their communities, and the unfolding national history.

For them, an amnesty would create the space for reconciliation, restoring social and political cohesion at the community and national levels.

For a deeply divided country, therefore, an amnesty for conflict-related crimes represented a necessary first step in a journey out of conflict.

Although it initially resisted these calls, the Government of Uganda relented, examined the matter, and eventually responded with proposals for a comprehensive amnesty package, which became the Amnesty Act of 2000. It is a mark of its relevance that since 2000, over 26,000 people have responded to the amnesty, abandoning armed rebellion and returning home under the oversight of an Amnesty Commission.

It is this Act whose amnesty provisions (Part II) were controversially withdrawn by the Government on 23 May 2012, on the grounds that war in Uganda was now over. As a consequence, there is no longer an amnesty in Uganda, even though, outside Uganda, armed rebellion, notably by the Lord’s Resistance Army, continues.

Although some have welcomed Uganda’s decision to revoke its amnesty law, seeing now the promise of justice, this move has provoked strong criticism within and outside the country, especially from conflict-affected communities.

The principal concern is the same as 12 years ago; that by removing the amnesty, Uganda has deprived the fight against the LRA of an important tool for encouraging defections. It's such defections that could hasten the end of the conflict and prevent further violence.

In the long fight against the LRA, the Ugandan amnesty has been an indisputably effective tool for undermining the cohesion of the LRA.

Well into 2012, pamphlets, written in several languages, and radio broadcasts deep inside rebel territory across four states, have encouraged LRA commanders and combatants alike to abandon the bush. And it has been working, as evidenced by a steady trickle of defections.

Addressing the reality of an army of abductees

Beyond the obvious security dividends, a particular justification of an amnesty for the LRA has always been that the alleged perpetrators within its ranks are themselves victims. It is difficult to find anyone within the LRA ranks who has not been forcibly conscripted and subjected to other serious abuses. Over the years, the reintegration of rank-and-file as well as more senior rebel commanders has posed a complex challenge, but one that Ugandan communities continue to address with courage and success.

For conflict-affected communities, the offer of an amnesty is often seen as a minimum act of reparation from a Government which had already failed to protect the amnesty beneficiary in the first place.

The plight of perpetrator-victim poses a moral challenge to the blanket condemnation of amnesties. Even rebel leaders have often been abducted as children; their prolonged captivity leading to a no-less-tragic criminal adulthood.

Africa’s challenge

For as long as Africa faces intractable conflicts, amnesties will remain on the agenda of its policymakers, and, certainly on the priority list of conflict-affected communities. Rather than encouraging an atmosphere where amnesties are a taboo subject, only to be whispered about, Africa should boldly confront the dilemmas that conflict visits upon it. On the horns of a dilemma, there is no space for dogma.

Policymakers do not have a simple choice between comprehensive prosecutions or blanket amnesty. The reality is far away from this extreme.

Amnesty laws and processes, properly applied, can co-exist with necessary prosecutions and other alternative forms of accountability and reconciliation, including African traditional justice mechanisms, which continue to provide the only accountability that most African communities know and value.

In this respect, in design, if not always in the implementation, the Ugandan amnesty law, as enacted in 2000, was an important precedent for Africa. Contrary to widespread belief, Uganda does not have a blanket amnesty: since 2006, this was made explicit by an amendment to the law, allowing the Minister of Internal Affairs, with the approval of Parliament, to exclude individuals from the amnesty. The Minister has never used this provision.

On the other hand, the Amnesty Commission was enjoined to ‘promote appropriate mechanisms of reconciliation in affected areas’: this was intended to encourage the social reintegration of ex-combatants through their engagement with the victims of their crimes and the communities into which they are returning.

Properly implemented, these provisions allowed the prosecution of undeserving individuals, while extending reintegration to the majority who are in reality perpetrator-victims.

Beyond the debating

The legal debates about the scope of permissible amnesty will continue to run, but legitimate as it is, debate should not be allowed to paralyse decision-making and sound responses to conflict. For there is, in fact, considerable common ground between proponents and opponents of amnesties: that the majority of combatants who do not bear particular responsibility for the most serious international crimes can lawfully be amnestied and reintegrated into society.

Occupying this uncontested territory is especially relevant in relation to the LRA conflict, with its moral dilemmas and conflicts. In this regard, the common African Union–United Nations regional strategy for promoting the defection of LRA members, consistently with international standards, strikes the right balance.

Through its selective approach to prosecutions, and emphasis on community involvement, Uganda’s amnesty law, as it stood prior to May 2012, had the necessary ingredients for promoting both accountability and reconciliation. Its contents should be emulated in the region.

Tailored amnesty laws will continue to be a necessary part of any strategy for encouraging political and social reintegration of those involved in armed rebellion in Africa.

To successfully address and recover from the LRA conflict, Uganda needs to retain an official response, going beyond the use of force and prosecutions, which acknowledges complexity, and seeks to meet the needs of victims of all shades.

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