This chapter therefore presents a discussion of traditional justice processes as used for criminal offences prior to the armed conflict which has lasted for over 20 years. It also highlights those rituals that have been selectively adopted by these communities in the aftermath of the conflict, and to what extent they have realised justice and reconciliation. The chapter further examines the practicability and effectiveness of adopting traditional justice mechanisms in their entirety to deal with atrocities committed especially by child soldiers during the armed conflict.
Since communities in Uganda at the time of the writing have not yet adopted traditional justice mechanisms in their entirety to establish accountability for the atrocities committed, the next chapter is dedicated to an examination of the unprecedented experiment of the traditional Gacaca court in Rwanda. The traditional Gacaca courts were adopted and modified to establish accountability of all crimes committed during the genocide. This discussion is presented in order to appreciate how traditional justice mechanisms can be modified to establish accountability for international crimes. Besides, Rwanda's experience with the Gacaca courts will be instructive to any future modifications to traditional justice mechanisms in Uganda with the aim establishing accountability for the atrocities committed during the armed conflict.
The term 'traditional justice mechanism' as used in this study refers to customary processes used to resolve civil and criminal disputes. This term encompasses processes as used prior to armed conflicts, and those that have been modified to deal with atrocities committed during such conflict. The words 'mechanisms' and 'processes' have the same meaning and are used interchangeably.
5 1 Introduction
The use of traditional justice mechanisms for dispute or conflict resolution has existed for centuries in Canada, New Zealand, Australia and Africa. These mechanisms survived the influence of retributive justice through formal courts and criminal laws, and are still being used to settle disputes. [1] Although the approaches within these mechanisms vary from one ethnic group to another, the common underlying goals of these mechanisms are healing, justice, and reconciliation. [2]
Traditional justice mechanisms have also been adopted in transitional societies to deal with the atrocities committed during armed conflict. Communities in Angola, Mozambique, Rwanda, Sierra Leone and Uganda have adopted mechanisms ranging from traditional courts, cleansing rituals, religious ceremonies, justice and reconciliation processes. [3] These processes are founded on the principle of togetherness which is the foundation of social and cultural structures. One cannot exist alone but as a part of a community. This principle is commonly known as ubuntu in South Africa, [4] and obuntu in Uganda. [5]
Traditional justice mechanisms in transitional societies were easily embraced compared to other transitional justice processes like prosecution, truth commissions and amnesty. This was attributed to the fact that communities had a better sense of ownership of traditional justice mechanisms since they formed part of their cultures and norms. Moreover, traditional justice mechanisms had far reaching outcomes because they constituted aspects of retribution, rehabilitation, reparation, and reconciliation. [6]
5 2 Traditional mechanisms in Uganda
Traditional justice mechanisms have always been used for dispute resolution in Uganda. These processes are acknowledged in the Cultural Objectives of the Constitution of the Republic of Uganda. Objective XXIV provides for the protection and development of cultural and customary values which are consistent with fundamental rights, freedoms and human dignity. [7] Moreover, Section 5 of the Executive Committees (Judicial Powers) Act recognises the jurisdiction of executive committee courts (village, parish and sub-county) in civil matters governed only by customary law and matters arising out of infringement of by-laws under the Local Governments Act. [8] Orders of reconciliation, compensation, apology, restitution, costs, attachment and sale may be made in such matters. [9]
With regard to children, Section 92 of the Children's Act and Section 6 of the Executive Committees (Judicial Powers) Act give village courts original jurisdiction over civil matters and criminal offences. [10] Such criminal offences include common assault, actual bodily harm, theft, criminal trespass and malicious damage to property. [11] These courts have the discretion to make informal orders of reconciliation, compensation, restitution, apology and caution, notwithstanding the penalties prescribed in the Penal Code Act 1950 (Ch 120) regarding criminal offences. [12]
The adoption of traditional justice process for international crimes is recognised in the Agreement on Accountability and Reconciliation (herein the Agreement) between the government of Uganda and the Lord's Resistance Army/Movement (LRA). Paragraph 3.1 of the Agreement recommends the adoption of traditional justice mechanisms in order to establish accountability and reconciliation for atrocities committed during the armed conflict. Such processes can be modified where necessary. [13] Paragraph 12 (IV) of the Agreement provides that children shall be exempted from criminal justice processes but may participate as appropriate, in reconciliation processes. [14] Some of the traditional justice processes recognised by this Agreement include ailuc (among Itesots), cula kwor (practiced among Acholi and Langi for homicide), kayo cuk (ritual for reconciliation among the Langi), mato oput (reconciliation ritual among the Acholi), and tonu ci koka (rituals by Madi). [15]
Communities in northern and eastern Uganda were predominantly affected by the armed conflict. [16] These communities have primarily adopted traditional processes that embody aspects of purification, reconciliation and reintegration, to deal with atrocities committed both by adult and child soldiers. Traditional processes that embody justice through compensation had not yet been employed at the time of writing this chapter.
Traditional justice mechanisms that were used for ordinary criminal acts prior to the conflict in northern and eastern Uganda are remarkably similar in so many aspects although they may vary in content. For example, all these processes aimed at realising justice, deterrence, truth telling, reparations through compensation, reconciliation, and reintegration. The efficacy of these processes depended on established norms and values coupled with respect for existing structures of authority. [17]
These processes also relied on the principle of obuntu meaning togetherness and the existence of a person through other persons. [18] Consequently, crimes committed automatically affected the entire community since persons could not live autonomously from others. If an individual committed murder, it was believed that the angry spirits of the dead and ancestors would bring suffering to the entire clan of the offender in the quest for justice. The offender's clan worked together to pay compensation to the victim's clan in order to avert or end such suffering. [19] Variations in these mechanisms are evident in their content as discussed below.
5 2 1 Itesot's in eastern Uganda
Prior to the conflict, the Itesot's in eastern region were divided into clans which were independent and sovereign. [20] These divisions were later abandoned and clans were unified under the leadership of a king titled Emorimor Papa Iteso. [21] The council of elders known as Arriget who were subject to the authority of Emorimor maintained order and resolved any disputes that arose within the communities. [22] Itesots' used a traditional justice mechanism known as Ailuc to deal with offences or settle disputes. [23]
If a crime was committed within the clan, both parties together with their witness were given an opportunity to speak before elders and the community. An accused was punished if he or she was found guilty. The common form of punishment was compensation and in some instances flogging or lashes. Lashes were primarily intended to discipline and humiliate the youth rather than cause bodily pain. This was usually done before the payment of compensation. [24] An accused person who expressed remorse and asked for forgiveness was given a lighter punishment. [25]
If an individual killed someone from another clan, he or she was believed to be cursed and had to undergo a cleansing ceremony conducted by the clansmen. [26] These rituals entailed smearing the perpetrator with goat dung and in some instances slight skin cuts with a knife. [27] The elders from the victim's and offender's clan held meetings in a neutral place to determine the compensation to be paid. [28] Compensation was in the form of livestock and a girl, who was given as a wife to the victim's brother to give birth to new life and replace the loss. [29] A feast was then prepared and shared by the victim's and offender's clan to symbolise reconciliation and a new beginning for both parties. [30]
During the armed conflict, LRA and government soldiers reportedly committed atrocities in the districts of Kumi, Katakwi, Amuria and Soroti occupied by the Itesot's in eastern Uganda. Approximately 2500 to 3000 children were abducted during these attacks. [31] When the war declined, roughly 2000 formerly abducted children from Teso districts returned to their families by the year 2008. [32] Individual families adopted spiritual and cleansing rituals instead of the justice process of Ailuc in its entirety. These rituals were used to get rid of all evil spirits that had contaminated these children while they were away from home. The rituals were also used to officially welcome children back home. [33]
There is a dearth of literature describing these rituals as adopted in response to the atrocities committed by child soldiers. There were also no reported incidents at the time of writing, where the justice process of Ailuc was applied to deal with atrocities committed by these children within the clan or to persons from another clan.
5 2 2 Acholi in northern Uganda
Nyono tong gweno (stepping on the egg) was a ceremony used among the Acholi to cleanse individuals from any external influences or evil spirits encountered while they were away from home. The sole use of this ritual did not amount to justice and reconciliation. It was primarily used as a precondition for the commencement of the mato oput justice process. [34]
Before an individual was accepted back home, he or she was required to step on an egg (tongweno) which was placed over a slippery branch (opobo) and a stick with a fork (layebi) designed for opening granaries where food was stored. The egg signified purity since it had no mouth to speak evil of others and its fragile nature represented the restoration of innocence. The slippery branch cleansed the returnee (person returning home) from any external powers encountered, and the layebi symbolised unconditional reception into the home which was evidenced through the sharing of food. [35]
After the nyono tong gweno ceremony, the family encouraged the returnee to confess all his or her actions or omissions while they were away from home. If an individual confessed to murder and identifies the victim, this information was immediately forwarded to the clan elders who then informed the elders and members of the victim's clan. [36] This necessitated a justice and reconciliation process to be held between the two clans.
With this confession, the justice process of cullo kwor (compensation) and mato oput commenced. These processes were commonly used for the crime of murder or homicide whether it was intentional or accidental. The first step in the cullo kwor process was the separation of victim's and offender's clans. Shortly after the victim's clan heard the offender's confession, there was an outburst of anger, tensions, and desire for retaliation. [37] The two clans were immediately separated and reasonable time was given for both clans to calm their tempers before further discussions are held to determine compensation. The period of separation was not restricted and could take weeks or months depending on the clans. This was interpreted as the 'cooling off period', which helped to avert any reprisals motivated by bitterness and revenge. [38]
When tempers had cooled, a trusted mediator was chosen by both clans to help them determine the appropriate time for the two clans to come together. The case was then referred to an elder (rwot), who then invited both parties to a neutral ground to deliberate on the case. This was known as the truth telling stage. Issues such as the circumstances surrounding the murder, intent and remorse of the offender, and negotiation of compensation, were discussed during this stage. Once both parties were heard and compensation was determined, ample time was then given to the perpetrator's clan to obtain the agreed amount. [39]
A date was then set for the lapid kwo (negotiator of the compensation) to receive the compensation as well as the ajwaka (diviners) to raise the spirit of the dead victim which identified the recipient of the compensation within his or her clan. [40] A date was fixed for the reconciliation ceremony of mato oput once the compensation was handed over to the selected individual(s). This ceremony comprised of rituals like beating of the stick, sacrifice and exchange of sheep by both clans, eating of spoilt boo (local greens), drinking of oput (bitter root) mixed with blood and local brew, eating of sheep and goat livers, and sharing of food. [41]
Once this ceremony was concluded, justice was said to be served and relations between the two clans restored. [42] Some elders however emphasised that the mato oput process for the crime of murder was officially completed upon the birth of a child. Compensation paid by the offender's clan was used as bride price to acquire a wife who would give birth to a child to replace the life of the deceased victim. Therefore, the birth of a new life marked the end of the mato oput process. [43]
The Acholi have adopted nyono tong gweno to cleanse former LRA soldiers and other returnees who participated in the armed conflict. This ritual was first used by families to privately cleanse soldiers related to them. In 2003, communal nyono tong gweno for large numbers of returnees and soldiers including LRA commanders was introduced by the Paramount Chief Rwot Onen David Acana II. [44] It is reported that the majority of formerly abducted children did not attend the communal cleansing ceremonies. [45] Considering the large number of participants, the author submits that communal ceremonies made it difficult to attain confessions as opposed to individual ceremonies. Even if some confessions were attained, there are no reports at the time of writing indicating the use of such confessions to initiate mato oput in order to realise justice and reconciliation for the atrocities committed.
While there are no reports at the time of writing indicating the actual use of mato oput in the context of atrocities committed during the conflict, [46] the majority of community members believe that this process should be used for atrocities committed by LRA including prominent commanders. [47] The victims' support for mato oput indicates the need for accountability and reconciliation. [48]
5 2 3 Madi in northern Uganda
The process of Vuna a lejjo jo ka was used by the Madi for resolving disputes involving family members, inter clan or village land issues and offences committed. [49] During the resolution of family disputes, the accused and complainant were summoned by elders and given an opportunity to prove their case. This process was called laki. If the accused was found guilty he or she was ordered to pay a fine in the form of money, and buy local brew ('moyo moyo' 'kwetto', or 'wirri'). Children were normally punished by lashing in public coupled with serious warning. The number of lashes was determined by the age of the child and severity of the crime committed. Parents were also cautioned to teach their children good morals. Cleansing rituals were conducted by the victim's and offender's clan if a crime of murder was committed. The offender's clan had to pay compensation to the victim's clan. [50]
There is a dearth of research at the time of writing specifically indicating the cleansing rituals that have been adopted by the Madi for atrocities committed during the conflict.
5 2 4 Lugbara in west Nile
The Lugbara used the terego system to resolve both criminal and civil disputes such as murder, witchcraft, divorce, theft, bestiality, crop destruction and adultery. These were conducted by elders with occasional help from elderly women who were considered wise. The decisions made by elders were binding and final without appeal.
Unique methods of identifying or confirming the perpetrator were adopted in incidents where a crime was committed and the elders failed to get an admission from the suspect. [51] In the case of murder for instance, soil was dug out of the grave of the deceased during burial, and mixed with porridge made out of millet and sorghum flour. This mixture was consumed by a number of persons including the suspect. It was believed that if the suspect was guilty, then his or her stomach would swell within three months and result in death within one year. If this did not occur, then the suspect was innocent. Another way of identifying the perpetrator was by tying the suspect to a tree in the wilderness. If consumed by wild animals, the suspect was said to be guilty. [52]
The Terego system embraced aspects of justice and reconciliation. The reconciliation process known as ejuke involved slaughtering of a sheep and its blood smeared on the chests of the parties. The sheep was then shared and consumed at the ritual site. This reconciliation process was accompanied by dances, cautions, sharing of items, deliberations, and curses in case of reoccurrence of the offence. Punishments were awarded depending on the nature and severity of the crime. These punishments included compensation, banishment from society, restrictions or banishment from public places and events, felling a big tree, and caning or lashes. [53]
Existing literature provides little or no information as to whether the terego system has been adopted to deal with atrocities committed during the armed conflict.
5 2 5 Langi in Northern Uganda
The Langi used the process of Kayo Cuk to realise justice and reconciliation. [54] This process was used in cases where a member of the clan or someone from another clan was murdered, death while in custody, death during work, death during pregnancy or delivery of a child conceived out of wedlock, and death resulting from neglect of another. If any of the above deaths occurred, the onus was on the perpetrator's father to inform the clan elders about this matter. [55]
