On Sunday May 13, 2012, the Ugandan army (UPDF) announced that it has had in custody, since the previous day, Caesar Achellam, a Lord’s Resistance Army (LRA) commander. Questions abound about what fate awaits this individual allegedly responsible for some of the most egregious abuses against children.
Should he be prosecuted in a court of law or granted amnesty and allowed to rejoin civilian life?
It seems that Uganda’s hands are tied – or more accurately, Uganda has tied its own hands.
Uganda’s Amnesty Act of 2000 is written very broadly. It applies to just about any fighter – captured, surrendered or ‘rescued’ – who “renounces and abandons involvement in the war or armed rebellion”. It provides amnesty for any Ugandan “involved in acts of a war-like nature”, including LRA members who might otherwise be charged with war crimes, crimes against humanity and/or gross violations of human rights.
It is interesting that civil society supported the Amnesty Act so vehemently. Even now, as there are seemingly no immediate security concerns, the Amnesty Act is still regarded as a peaceful means of bringing out of the bush those who are still fighting. However, as one civil society member that I quoted in my book described the situation, it is “like forgiveness motivated by intimidation”. Even now there is some fear that if provoked, the LRA can make a revival and return.
Prosecutions are a powerful tool – for reasons that combine the possibility of deterrence and their communicative value of condemnation and respect for human rights. Domestic prosecutions of members of the LRA leadership not indicted by the International Criminal Court (ICC) would have been appropriate had Uganda not felt the political need to enact the Amnesty Act. Given that the Amnesty Act exists, however, Uganda should not attempt to sidestep its own laws to pursue unevenly the prosecution of some individuals.
Despite its near-blanket qualities, the Amnesty Act does allow for some individuals to possibly be held accountable under domestic jurisdiction. For instance, under the Amnesty Act amnesty is a one-time deal. Achellam would not be eligible for amnesty if he had already been granted amnesty but then returned to fighting – there is no indication that this is the case.
Uganda tied it own hands, but then attempted to loosen the constraints, broadly — and yet in such a way as to not garner much notice.
There is a provision, an amendment to the Amnesty Act added in 2006, that allows Uganda’s Minister of Internal Affairs to prohibit certain individuals from being granted amnesty. Verbatim, it reads, “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.” To date, this provision has not been employed. There is no further guideline as to how, why, or on what timeline, amnesty could be denied. Over 20,000 fighters have received amnesty.
Despite that fact that Achellam seems to warrant prosecution, it seems unreasonable given Uganda’s history of amnesty that he be put on trial. This is true especially since it was ruled in 2011 that another top LRA leader, Thomas Kwoyelo, was eligible to be granted amnesty.
It is for reasons such as these that amnesty acts should be pursued with great caution. Once enacted, they can be very tricky to manage and they make finding the right balance of justice very difficult.