The unfinished business of the Lord’s Resistance Army: Reinvigorating the abandoned Juba peace...

1

The unfinished business of the LRA_Full Paper_April 2014

The unfinished business of the Lord’s Resistance Army: Reinvigorating the abandoned

Juba peace process

David-Ngendo Tshimba

[email protected]

Social Research Fellow and Assistant Lecturer

Uganda Martyrs University

Abstract

In the flaring public debate on transitional justice in the aftermath of the collapse of the mediated

Juba peace talks between the Government of Uganda (GoU) and the Lord’s Resistance Army

(LRA), numerous political and military leaders, members of civil society organisations, and

academics—at both local and international levels—remained divided on various points about

what the final peace deal should entail. By far, the most divisive question, in Juba, consisted of

how to balance the demands of justice in terms of punishment for past wrongdoing against those

of peace in terms of post-violence reconciliation and restoration. Today, more than half a decade

following the abandonment of the Juba peace process, on the one hand, and the continuation of

the Lord’s Resistance Army (LRA) rebel activity beyond Uganda, on the other hand, this

paper—basing on both secondary data analysis and extended covert observation in the LRA-

affected region of east and central Africa—makes a deliberate preference for a context-specific

restorative type of justice in righting the wrongs committed during this protracted armed conflict.

Only then, the paper ultimately argues, can the much resource-straining hunt for LRA’s Joseph

Kony—so far elusive—be averted and so can the much-needed durable peace for post-war

northern Uganda and beyond be secured.

Key words: transitional justice, retributive justice, restorative justice, durable peace.

1. Introduction

Following the collapse of the JPP [Juba Peace Process], there was need to pick up

the good pieces and move the process to restoring total and lasting peace in

Northern Uganda forward (like the owner of the house which gets burnt, but not a

crime scene detective who rummages crime scenes looking for pieces of evidence

to pursue a criminal prosecution of possible suspects).

Excerpt from The Road Map to Peace in East and Central Africa, (Opak, 2010, p. 78)

The need for crafting peaceful coexistence and harmonious living in the aftermath of violent

conflict cannot be overemphasised. As a fragile society emerging from a bloody conflict,

northern Uganda in particular and the country (Uganda) in general still grapple with questions

about how best to deal with the bitter legacy of evil deeds. Yet, addressing such questions in a

timely fashion remains paramount to the survival and sustainability of such fragile post-war

mailto:[email protected]

2


society as today’s northern Uganda. Should priority be given to bringing the perpetrators of past

human rights violations to justice, thereby combating the culture of impunity that has come to

characterise many civil conflicts? Or is it more important to start by focusing on measures

designed to ensure that peace and stability, and with them the prospects for a society’s longer-

term recovery, are bolstered?

This paper modestly delves into the controversial transitional justice debate, which continues to

set the parties hitherto directly involved in the conflict (the GoU and the LRA) as well as

concerned stakeholders (affected communities of northern Uganda, north-eastern Democratic

Republic of Congo, south-eastern Central Africa Republic and south-western South Sudan; non-

governmental organisations working in the LRA-affected region; the international community in

general, and in particular the government of United States of America, the African Union and the

United Nations) poles apart. The paper, in the end, makes a deliberate preference for a context-

specific restorative type of justice in order to avert the much resource-straining hunt for LRA’s

Joseph Kony so far unsuccessful, and so secure the much-needed durable peace for post-war

northern Uganda and beyond.

2. Setting the debate

Huyse (2008) already echoed that a recent move from a retributive type of justice to restorative

justice and reconciliation has seriously sparked off an ongoing debate in most post-armed

violence societies such as today’s northern Uganda. In this ongoing public debate on transitional

justice, political and military leaders, members of civil society organisations, and academics—at

both local and international levels—are divided on numerous points; by far the most divisive

question is how to balance the demands of justice against the many political, economic, social

and cultural contingencies.

On the one hand, those who emphasise the beneficial effects of prosecution bring forward two

categories of arguments: the first argument is victim-oriented; it is argued that a post-conflict

society has a moral obligation to prosecute and punish the perpetrators, because retribution is

exactly what most victims want. It serves to heal their wounds and so restore their self-

confidence due to the fact that it publicly acknowledges who was right and who was wrong and,

hence, clears the victims of any labels of ‘criminal’ that were placed on them by the authorities

3


of the past or, indeed, by the rebel groups or the new elites. The second set of argument has to do

with establishing and upholding peace and political stability. It is thus argued that prosecutions

(trials) will avoid unbridled private revenge. Otherwise, victims may be tempted to take justice

into their own hands. Therefore, the survival of a newly established regime depends on swift and

firm judicial action against those who are responsible for the gravest violations of human rights.

This is seen as a necessary protection against sabotage ‘from within’ and as a way of achieving

some minimal physical security. Additionally, criminal courts establish individual criminal

accountability, for the idea of collective guilt is often the source of negative stereotypes, which

in turn may provoke more violence.

On the other hand, some advocates of restorative justice such as Latigo (2008) question whether

outright punishment is the appropriate response in any and every context. The end of a civil war

or of a period of violent repression creates an intricate agenda—rebuilding the political

machinery and the civil service; guaranteeing a minimum of physical security; demobilising,

disarming and reintegrating rebel movements; reorganising the army and police; rebuilding

physical infrastructure; stabilising the economy; establishing a non-partisan judiciary; organising

elections; healing the victims and repairing the damage inflicted on them among other concerns

on the post-conflict to-do list. It is argued that dealing with the perpetrators, possibly by means

of criminal prosecutions, is only one of many challenges. More often than not it will be

impossible to tackle all tasks simultaneously. Choices therefore have to be made. It is argued that

the place of justice in general, and or prosecution (trials) in particular, on the post-conflict

agenda depends on the particular conjunction of political, cultural and historical forces. Other

problems and needs may be more important and/or more urgent than seeking justice through

trials. In addition, prosecutions are ambivalent in certain transitional contexts. They can have

highly destabilising effects on a peace settlement or a fragile shift to stability. Furthermore,

prosecutions do have some intrinsic limitations, in that, they are perpetrator-oriented and so do

not give victims the full attention they are entitled to in order to be healed of the injustices they

suffered.

Against this backdrop, this paper underpins an argument for the ethics of peaceful coexistence

between the offended and their offenders in the ongoing heated debate, which ostensibly

polarises the demands for justice (criminal liability) against the search for lasting peace (amnesty

4


and reconciliation) in the large LRA-affected region. But before delving further into the literature

about this transitional justice debate and taking a position, the following section of the paper

presents an intricate extent at which the hunt down for LRA leader, Joseph Kony, in order to

eradicate definitively this insurgent movement, has so far remained elusive.

3. A costly yet elusive hunt for Kony’s LRA

The roots of the LRA armed struggle had been intertwined with other conflicts in Uganda and

beyond, and more so with the coming to power of the National Resistance Army/Movement

(NRA/M) of Yoweri Museveni in 1986. Referring to Finnström’s work (2008), Atkinson (2009)

reiterated that the capture of Kampala by the NRA in January 1986 marked the starting point of

several new armed conflicts in Uganda; in effect, the battle zone simply shifted location from

central Uganda towards the north and the country’s other peripheries. Of the twenty-seven rebel

movements following Museveni’s NRA/M takeover, the most protracted, vicious and debilitating

has been Joseph Kony’s LRA rebel insurgency in greater northern (north and east parts) Uganda.

Ginyera-Pinycwha (1992) pointed out that this bloody conflict has been attributed to a number of

factors, including poverty and general underdevelopment, the loss of economic opportunities and

jobs by former army officers, and political repression as well as a struggle for political power.

Adler (1997) had already pointed out that, like any other social institution, war is socially

constructed and partly depends—for its persistence—on collective ideas about the inevitability

of war and its desirability for achieving political gain, riches and glory.

As Museveni’s NRA captured Kampala in 1986, soldiers and supporters of the previous

governments left Kampala and fled northwards, towards Acholiland (then Gulu, Kitgum, and

Pader districts) bordering the then Sudan. Museveni’s army followed hard on the heels of the

soldiers, crossing the symbolically significant border of the Nile-Karuma bridge at the middle of

the country’s South-North divide. Finnström (2005) wrote that killings, rape and other forms of

physical abuse aimed at non-combatant population became the order of the day when

Museveni’s former guerrillas reached Acholiland, which was foreign to them. Simultaneously,

from within Sudan, opposition elements regrouped and launched the Uganda People’s

Democratic Movement/Army (UPDM/A), predominantly comprising former Acholi foot soldiers

and officers of the Uganda National Liberation Army (UNLA). Other insurgency movements

5


were also formed, of which Alice Lakwena’s Holy Spirit Movement (HSM) is well-known. As

war evolved, people in the war-torn region came to differentiate between two dimensions of

armed resistance, the first called “the army of the earth” (mony me ngom) and the second “the

army of the heaven” (mony me polo) (Finnström, 2005, p.101).

At the initial stage, the uprisings led by Lakwena’s HSM which later on metamorphosed into

Joseph Kony’s LRA had considerable support among the grassroots who found their homes,

belongings and cattle herds destroyed and looted en masse by the intruding soldiers (the NRA

which later on metamorphosed into the Uganda Peoples’ Defence Forces, UPDF). In the

former’s view, Acholiland was under occupation by the latter, something they resisted in the

name of social justice. The evolving war between government forces (UPDF) and the renewed

insurgency (LRA) has however caused an enormous humanitarian catastrophe essentially in the

Acholi sub-region of northern Uganda, home of the Acholi people; with no proper estimates of

hundreds of thousands of those who periled in the two-decade-long armed violence, some

800,000 or 70 per cent of the Acholi population were forcefully displaced to large camps

cynically called “protected villages” (Finnström, 2005; Latigo, 2008; Komakech, 2008).

The LRA led by Joseph Kony, who is alleged to have taken over his cousin Alice Lakwena’s

Holy Spirit, has abducted tens of thousands of minors into their fighting ranks, which eventually

alienated them from the local population (Angucia, 2010). Originally composed largely of ethnic

Acholi from northern Uganda, the composition of the lower ranks of the LRA has changed as

they have replenished their numbers through abduction of civilians across the region including

northern Uganda, north-eastern DRC, south-western CAR, and southern South Sudan.

Since the 1990s there has been a national as well as international-level consensus that the LRA

can only be stopped by military intervention. Supported by the United States’ Africa Command

(AFRICOM), to date, the Uganda’s armed forces (UPDF) have led offensives across the region

and claimed that LRA numbers are low such that the rebel movement (LRA) is near defeat

(Conciliation Resources, 2011). In fact, in 1992, the first military offensive by Uganda’s armed

forces codenamed “Operation North” resulted in large numbers of Internally Displaced Persons

(IDPs) housed in squalid, disease-ridden camps in northern Uganda. The second military

offensive, codenamed “Operation Iron Fist” was launched against the LRA ten years later (2002

6


through 2005), aiming at attacking LRA rebels from the rear in the then southern Sudan.

Operation Iron Fist, Atkinson (2009) wrote, was intended to deliver a final blow to the rebels by

pursuing them with more than 100,000 troops, to their bases in the then southern Sudan. Again,

the operation’s failure had severe humanitarian consequences: increased abductions by the LRA

and IDPs in northern and eastern Uganda—almost the same number as in the much more widely

publicized case of Darfur (Atkinson, 2009). While this military offensive undoubtedly inflicted

huge damage on the LRA, it nevertheless did not deliver a final blow to the LRA’s rebel activity

and violence against civilians in the LRA-affected region.

At the heart of the contestation over hunt for and prosecution of LRA’s commanders lies not the

realisation of the fact that ‘some justice’ is or can be better than ‘no justice,’ but rather a more

worthwhile concern about whether the interests of “justice” can remain complementary to and

compatible with the pursuit of “peace” in the aftermath of ruthless violence. What has been,

nonetheless, the less conspicuous but more pernicious issue resulting from this two-decade long

armed conflict remained the manifestation of structural violence—a dehumanising living

condition emanating from forced life encampment. Yet, the dominant narrative repeatedly voiced

by the one party to the conflict (GoU)—more often than not, in unison with some influential

stakeholders from the international community, including global media and international

humanitarian organisations—simply made this structural violence easy to ignore.

What had become and still continues to be most highlighted themes of this armed insurgency

consists, on the one hand, of the cruelty as well as mass abduction of minors by the LRA,

coupled with the notion that LRA’s leader, Joseph Kony, is steered by an unfathomable and

essentially primeval worldview which leaves no room for any meaningful political engagement,

on the other hand. Consequently, and as a matter of political expediency of the Kampala regime,

President Museveni has domestically “used this dominant narrative/official discourse of the war

to sow fear and cultivate political support from areas outside northern Uganda; internationally,

the GoU used the war, and the official discourse of it, to help obtain diplomatic and budgetary

support from the international donor community and more especially the United States of

America (USA), which included the LRA on its list of international terrorist organisations. What

is even more affecting in terms of GoU’s use of this official discourse of the insurgency—

7


especially concerning LRA abductions and brutality—is that it speedily facilitated the indictment

of Kony and his top five commanders by the International Criminal Court (ICC) in 2005

(Atkinson, 2009).

The sudden 2005 ICC arrest warrants for the LRA’s top leadership eventually underpinned the

failed attempts to end the conflict by means of dialogue in the Juba peace talks from July 2006 to

April 2008. The third military offensive, which came to be known as “Operation Lightning

Thunder” under the military intervention by the UPDF—in unison with DRC armed forces,

FARDC, South Sudan armed forces, SPLA, and CAR armed forces, FACA, in the very end—

was successively launched from the end of 2008 up till March 2009. Atkinson (2009) however

argued that although the GoU and more particularly the UPDF referred to this operation as a

joint military offensive with armies of the DRC and the Government of South Sudan (GoSS),

this had been an overwhelmingly UPDF affair, with the two other forces playing a minimal

support role at most. Until the end of 2011, however, evidence on the ground showed that the

LRA was operating in new areas, notably in a corridor along the South Sudan–DRC and South

Sudan–CAR borders and as far north as South Darfur (Conciliation Resources, 2011).

Undoubtedly, the launch of this military offensive against the LRA elicited mixed reactions: To

some, this military operation created an avenue through which the LRA regrouped into smaller

formations to attack the local populations and abduct children to join their cause. To others, the

operation was successful in scattering the LRA, though not in ending the war. Still other analysts

described it as a complete military failure—strikingly akin to Operation Iron Fist—because it

turned out to be an ill-thought-out and poorly executed incursion that resulted in more suffering

and upheaval for thousands of Congolese citizens (Ahere and Maina, 2013). The UPDF,

Atkinson (2009) wrote, disclaimed responsibility for protecting civilians from LRA reprisals,

and instead blamed its faux partners, the FARDC in DRC and the SPLA in South Sudan, as well

as UN peacekeeping forces in the DRC, for failing to do so. As such, Atkinson (2009) further

argued, widespread criticism on this issue stands in stark contrast to the equally, if not more,

widespread support for the operation in its early stages. Finally, citing reliable sources from both

former abductees from South Sudan and the LRA itself, Atkinson (2009) underscored that nearly

two years prior to the launch of Operation Lighting Thunder, the LRA was training virtually no

8


new abductees from north-eastern DRC or Western Equatoria in South Sudan as fighters. Hence,

arguments by the GoU, the ICC, and others concerned stakeholders that the LRA was using the

Juba peace talks to buy time to build up its fighting force are almost surely inaccurate.

Incidentally, in response to the region-wide threat by recent LRA rebel activism in CAR, DRC

and South Sudan, the GoU with support from the African Union (AU), the International

Conference on the Great Lakes Region (ICGLR) and the USA government, once more decided

to address, by use of military force, the growing threat that the LRA poses to regional security.

Referring to a USA congressional research service report of November 2011, Ahere and Maina

(2013) further problematised the concern whether the response by this alliance against the rebel

group is commensurate with the threat posed. Additionally, for Ahere and Maina (2013), perhaps

the most unique characteristic of the LRA is its regional focus and geographical fluidity—two

traits which have arguably made a series of military offensives for the elimination of the LRA so

far elusive.

Strikingly since 2012, the LRA once more came under increasing scrutiny from the international

community from the United Nations (UN) Security Council, the African Union (AU) Peace and

governments of Uganda and USA in a bid to improve coordination of efforts aimed at

dismantling the rebel group definitively. A major outcome of these efforts was the AU-led

Regional Cooperation Initiative for the Elimination of the Lord’s Resistance Army (RCI-LRA),

which launched its operations in March 2012 according to a report by the Global Centre for the

Responsibility to Protect, published in the same year. By its design, this initiative was to

comprise of the Joint Coordination Mechanism chaired by the AU Commissioner for Peace and

Security and composed of the Defence Ministers of the affected countries (CAR, DRC, South

Sudan and Uganda) as well as the Regional Task Force (RTF), comprising 5,000 soldiers and of

national contingents from the affected countries. In the same vein, the USA government

supported the RTF through the provision of 100 armed advisers to help in the hunt for Kony and

his current top-notch commanders.

Nonetheless, the provisions of the AU Peace and Security Council communiqué of 22 November

2011 that authorised the contribution of a total of 5,000 troops for the RTF by the concerned

countries are still largely unmet, due in large part to human and financial challenges; by early

9


September 2012, CAR had only contributed 350 soldiers, South Sudan 500 and Uganda 2,000

while discussions with the DRC government on its contribution to the RTF were still ongoing

(Ahere and Maina, 2013). Yet, whereas the LRA has substantially grown weaker in the past two

years as the Ugandan-led and USA-supported counter-LRA African Union Regional Task Force

(AU-RTF) has pursued its mission to eliminate this rebel group, Agger (2013) argued that the

RTF still lacks both logistical capacity and access to key areas where LRA rebels operate in

remote parts of three countries: the thick forests of DRC and CAR, and the Kafia Kingi enclave

in South Darfur, Sudan. What is even more, the current power vacuum in CAR following the

compelled resignation of hitherto Seleka leader, Michel Djotodia, coupled with the ongoing

politico-military crisis in South Sudan can only avail to LRA ungovernable spaces where its

renewed rebel activity would surely flourish.

Needless to note is the fact that the rebel movement’s ability to adapt has been evidenced by its

26-year history to survive in a shrunken state and then expand rapidly when circumstances and

external support allow. Therefore, just as the LRA increased its rebel activity for so long as the

war that pitted the Sudanese People Liberation Army/Movement (SPLA/M) against the

Khartoum government lasted, it is most likely to remain a potent and destabilising force in the

region for so long as the current crises in CAR and South Sudan stay unresolved. Against such

deterioration of the security situation region-wide, a Ugandan military solution to end the

conflict by defeating the LRA is made even more problematic than before (notwithstanding

UPDF’s spectacular record of repeated failures of a military solution for more than twenty years)

and it is most likely to remain so in the foreseeable future. What else ought to be pursued in a bid

to end this conflict, in light of the realisation of failed attempts to end this conflict militarily? At

the heart of the transitional justice debate rests the need to fight against impunity for wrongdoing

on the one hand, and the concern for recreating an all-inclusive post-violence society from a

shattering experience of past evil, on the other hand.

4. Retributive versus Restorative Justice: some theoretical implications

In a complex narrative about the pursuit of justice after violence, Noll (2011) pointed out, on the

one hand, that the international community wants to hold war criminals accountable through an

international retributive justice system; yet, on the other hand, the cooperation with those

10


criminals is often necessary to secure lasting peace. How can these two seemingly inconsistent

goals be managed in a broader peace process? As Noll (2011) noted, this paper too underscores

that what is required for peace and accountability is a deeper understanding of justice, for the

controversial debate about restoration (reconciliatory peace) and criminal accountability

(retributive justice) is really a conflict around the different meanings and understandings of

justice.

Article 3, paragraph one of the Preliminary Pact on Accountability and Reconciliation of the

Juba peace process, signed in late June 2007 by the GoU and the LRA stated: “Traditional justice

mechanisms, such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc and Tonu ci Koka and others as

practiced in the communities affected by the conflict, shall be promoted, with necessary

modifications, as a central part of the framework for accountability and reconciliation.” To date,

more than half a decade since relative peace returned to the North of Uganda, there still is

nationwide concern for post-war recovery throughout the country’s LRA-affected areas.

Indisputably, a considerable amount of studies have been carried by academics (Allen, 2006;

Angucia, 2010), policy research institutions (such as Refugee Law Project of Makerere’s Law

School, RLP and the African Centre for the Constructive Resolution of Disputes, ACCORD) as

well as international non-governmental organisations (such as Human Rights Watch and

International Alert) in a bid to inform policy-makers as well as many other stakeholders about

what could be the pathway to post-war reconstruction and durable in today’s LRA-affected areas

in northern Uganda as well as in the neighbouring countries of South Sudan, DRC and CAR.

However, controversies around the type of justice to be pursued in the search for durable peace

in the aftermath of such violent conflict still abound. Different actors (state, civil society and

international non-state) as well as local communities are split apart on the question of what and

whose justice to be followed in such precarious scenarios.

On retributive justice

As Galligan (1981) expressed the core idea of retributive justice is “the moral notion that the

wrongdoer ought to be punished” (Galligan 1981, p.152). The major argument for retribution

maintains that it is the wrongness of the criminal act that justifies the imposition of punishment

on the offender. In the same vein, Galligan (1981) underscored that guilt deserves punishment

11


for the sake of justice. In this logic, perpetrators of violence inflicted upon civilian populations as

a result of the LRA insurgency (elements of both the offensive and the counter-offensive) are to

be subjected to criminal prosecution as in a way to account for their wrongdoing. Vinjamuri and

Snyder (2004) maintained that the idea of retributive justice through prosecutions has existed for

a very long time and has been considered as the most appropriate tool for addressing war crimes

and past human rights abuses.

In the aftermath of massive human rights abuses, victims have well established rights to see the

perpetrators punished first and foremost, to know the truth, and to receive reparations. A history

of unaddressed massive abuses is most likely to be socially divisive, to generate mistrust

between groups and in the institutions of the State, and to hamper or slow down the achievement

of security and development goals. As is seen in most post-conflict societies where massive

human rights violations have taken place, the claims of justice refuse to go away. Hence, in

trying to ensure criminal accountability for the past evil deeds retributive justice claims to

establish the rule of law and so guarantee communities’ security in the aftermath of conflict.

Since the establishment of the famous two ad hoc criminal tribunals—Nuremberg and Tokyo—

following the end of World War II, prosecutions of war criminals have ensured an end to the

culture of impunity for the greatest violations of human rights. The psychological rationale for

retributive post-conflict justice stems from the need to understand and heal the trauma of victims

and survivors of conflict. Civil wars by definition involve victims, regardless of what the purpose

or mission of the insurgents and the government is. Bass (2005) vehemently argued that victims

of past heinous crimes desperately want to see some kind of punishment for those that have

destroyed their lives or killed their loved ones. Such deep desire makes amnesty a rather

unacceptable solution.

Holding perpetrators responsible for gross human rights violations including genocide, ethnic

cleansing, torture and other types of war crimes, can be important for those affected by these

crimes, “enabling them to attain closure and restore healthy relations toward one another”

(Gloppen 2005, p.22). Gloppen (2005) further noted that for those affected by past atrocities, post-

conflict retribution can serve to demonstrate a break with the immoral order of the past and help

to build trust in the new social order. Failing to deal with past atrocities, in contrast, may reduce

12


the post-conflict government’s legitimacy, preventing it from stabilizing the situation (Elster

2004). This is why Elster (2004) further acknowledged that post-conflict trials ensure perpetrators or

insurgents are put away, at least for a period of time, “so that they cannot launch a new

insurgency once the conditions seem appropriate” (Elster 2004, p.8). If perpetrators are not

arrested and prosecuted, it is argued, they may exploit the post-conflict situation to collect allies

and persuade important actors to sabotage the policy of the post-conflict government. Eventually,

another attack or a sabotage of a newly established government’s policy or set of policies will

lead to a destabilisation of the post-violence regime and increase the risk of another civil war.

On restorative justice

Quite unlike retributive justice, restorative justice focuses on victims as well as on perpetrators,

and seeks to engage the society in a dialogue that includes elements of truth telling, apology, and

forgiveness, and that ultimately leads to reconciliation. Wierzynska (2004) has referred to

restorative justice as societal healing of damages resulting from past crimes; the underlying drive

for restorative justice is geared towards an evolving understanding that any dealings with the past

should focus on impacting the future of the post-conflict society constructively. The goals of

restorative justice therefore include addressing the root causes of the conflict, involving all

stakeholders (more so the antagonist parties to the conflict) in the restoration process,

emphasising the importance of truth telling, apologising and seeking forgiveness, and preventing

future conflicts through measures instituted to rebuild the affected communities.

Such society-embracing model of justice focuses on bringing perpetrators and victims together

and—as with retributive justice—ensuring restitution to the victims as well as restoration of

offenders. Most, if not all African societies have had alternative methods of reintegrating the

wrong-doers into society and letting them assume their societal roles as it might have been prior

to the conflict (whether violent or not). The Gacaca courts in Rwanda, the Magamba spirits in

central Mozambique, the Mato Oput rituals among the Acholi in northern Uganda, the Ngele

Gbaa rite among the Kpaa Mende in Sierra Leone, and the Obushingatahe institution in Burundi

are among traditional reconciliation mechanisms which have been advocated, and to some

degree, embraced by affected communities in the aftermath of violent conflict (Huyse & Salter,

2008).

13


More specific, the Mato Oput ritual—the communal drinking of a concoction of a bitter local

brew by former antagonists—provides a ritualised form of reconciliation. This traditional justice

ritual reflects a cultural understanding of justice that sees social pardon as better addressing the

requirement of reconciliation than punishment meted out within legal structures (Gavron, 2002).

In a way to ritualise remorse caused by the past evil deeds, Mato Oput (the drinking of the

concoction of a special bitter root) as a ritual becomes a way of accepting former offenders back

into the community once they have acknowledged and accepted responsibility for what they have

done. In the same breath, Zehr (1990) identified a set of five main needs of survivors of

victimisation; namely, the need to speak the truth about what happened to them; to receive

‘answers’; to be awarded compensation and/or restitution; to receive guarantee of non-repetition;

and lastly to be actively involved in the judicial or quasi-judicial process. Of all the specificities

above mentioned, Herman (1992) emphatically pointed out that remembering and telling the

truth about terrible events are “prerequisites both for the restoration of the social order and the

healing of individual victim” (Herman, 1992, p.1).

The pursuit of restorative justice therefore provides an alternative process to punitive options,

offering a distinctively different or new model of criminal justice where victims take an active

role in the process, whereas offenders are encouraged to shoulder responsibility for their actions

through communally-accepted reparation of the harm they have done. In this regard, restorative

justice can be seen as criminal justice embedded in its social context, whereby both the offender-

community and the victim-community together with wider society are constructively engaged in

communal problem-solving. Marshall (1997) noted that restorative justice is called so simply

because it is centrally concerned with restoration: restoration of the victim, restoration of the

offender to a law-abiding life, restoration of the damage caused by the crime to the community.

Marshall (1997) further argued that restoration as such is not solely backward-looking; it is

equally, if not more, concerned with the construction of a better society in the present and the

future.

5. Beyond the confines of the Juba peace talks

Considering the differing attitudes and behaviours by the two conflicting parties that took part in

the Juba peace talks, one underlying question requiring further consideration can still be asked in

14


the following terms: Whose peace was being pursued? The two-decade long war in this region

had sometimes identified rebel activities of the LRA as in the pursuit of freedom and justice, and

as such, so much directed towards peace in Acholiland. The GoU too has justified its military

interventions and subsequent politico-humanitarian strategies in the name of security and peace

in the same Acholiland. Whose peace then was being brokered in Juba? Whereas the LRA had

been forcefully pushed out the territory of Uganda, the dividends of a holistic peace—what

Galtung (1996) calls ‘positive peace’—continue to elude this former LRA-disturbed region.

More so, even ‘negative peace’ continues to elude the wide region beyond northern Uganda,

where today’s LRA rebels still operate at large.

It is often suggested that more reliable mechanism to reconstruct society in the aftermath of

violent conflict remains the application of transitional justice. For justice of this sort describes

the conception of justice associated with periods of political transformation, illustrated by legal

actions and responses to tackle the offences of tyrannical predecessor regimes or violent

confrontations between state and non-state armed forces, and acknowledged post-conflict

approaches that focus on reconstructing of the socio-economic fabric through rebuilding

conditions that enable the enhancement of a sustainably peaceful society.

The Juba peace talks that began on 14 July 2006 between the GoU and LRA, and mediated by

the then recently instituted quasi-autonomous GoSS, were initially presaged as the best hope to

end this armed conflict since it began. Particularly, these talks were taken to be very crucial to

both the GoSS (whose own vested interest in successfully helping negotiate an end to this armed

conflict was caused by security concerns of the many sorts, including the presence of 4,000 –

5,000 LRA fighters and at least twice that number of the UPDF in South Sudan) and the LRA

(considering that top LRA commanders feared ICC warrants issued against them in October

2005 and saw these peace talks as a possible way to evade the arrest). However, Atkinson (2009)

argued that although the ICC warrants surfaced as an issue for the LRA during the Juba peace

talks, there is still little evidence that they were a major factor in the LRA’s decision to enter

talks, for it had increasingly become part of accepted wisdom from a range of people in and

outside Uganda to secure the LRA cooperation in order to end the war, at the expense of ICC

prosecution. Hence, both the GoSS and the LRA were unwavering in their commitment to the

15


peace process in the face of often expressed skepticism by the GoU and the international

community; shockingly, “hopes were reinforced when the talks produced relatively quickly a

Cessation of Hostilities (CoH) Agreement on August 26, 2006”—which became the first-ever

formal bilateral accord signed by the representatives of both the LRA and the GoU (Atkinson,

2009, p.11).

Furthermore, on 29 June 2007, the two sides signed what Atkinson (2009) termed as ‘the even

more wide-raging’ agenda on accountability and reconciliation in a bid to identify and/or

establish a combination of local and national justice mechanisms in order to promote

reconciliation and address issues of accountability for wrongs committed by both LRA fighters

and the UPDF, “with hints that this combination of mechanisms might satisfy the ICC”

(Atkinson, 2009, p.12). Nonetheless, following frequent hiatuses resulting from divisions

between the two sides over mediation procedures and more especially from instigated

dissensions within the LRA delegation and fighters, LRA leader Kony—who was scheduled on

10 April 2008 to add his signature upon the Final Pace Agreement (FPA), with President

Museveni to sign four days later—did not sign, ostensibly because he wanted further clarification

about the Disarmament, Demobilisation and Reintegration (DDR) of LRA fighters and the mix

of ‘traditional’ and ‘formal’ legal proceedings that he and his fighters faced, including the role of

the ICC. Given the unresolved contestation over issues of restorative and retributive justice

coupled with a deep-seated conviction by one party to the conflict (GoU together with its

regional and international supporters) to end this conflict militarily, the Juba peace process—

which had yet produced landmarked agreements—was relegated to futility.

To date there is region-wide concern for long term stability in the entire LRA-affected region of

east and central Africa. The notion of justice itself is no doubt a complex and contested concept,

more so in transitional societies (those called to deal with a violent past). Noll (2011)

acknowledged that justice per se has a lot of different meanings: retributive, restorative,

distributive, or social justice as different interpretations of the notion of justice. Webber (2012)

argued that there are at least two substantially different forms of justice at issue, namely,

“retrospective” (backward-looking) and “prospective” (forward-looking) justice. Referring to

Volf’s Exclusion and Embrace, McAdams (2006) too underscored the complexity which lies in

16


achieving a balance of sorts between these twin objectives of justice after violent conflict.

Oftentimes, a recovery discourse in this region has echoed the need for contextualised justice

mechanisms to be sought in a bid to secure lasting peace in the aftermath of numerous atrocities

caused by this armed conflict. Broadly, these justice mechanisms are perceived by both on-the-

ground opinion leaders and the grassroots themselves as restorative in nature, for they are hoped

to gear towards community reconciliation and durable peace following mass atrocities of war.

How, Atkinson (2009) asked, on the scales of justice, does insisting on the prosecution of Kony

and his top commanders, however guilty, weigh against the chance to end a conflict that has

denied for more than twenty years the most fundamental justice of peace and security to millions

of people? There is no doubt that Kony’s LRA has committed gross and horrendous human

rights violations and that from both from moral and legalistic perspectives, formal prosecution

makes sense. Nonetheless, this armed conflict, as many academics and practitioners have

acknowledged, has unfolded in a series of bloodletting attacks, encompassing four countries

(Uganda, South Sudan, DRC and CAR) and having involved hundreds of others who have also

committed human rights violations—often gross and horrendous—from presidents

(commanders-in-chief) and generals to foot soldiers in government forces and in myriad militias.

Beyond the legitimate germaneness of prosecution for criminal liability, what is even more

pertinent in such aftermath of wrongdoing is an inclusionary type of justice (embrace), which

brings both offenders (and their sympathisers) and victims (and their supporters) but even by-

standers (both from within and outside of the conflict setting) into the public fold so as to restore

harmonious relations among all of society’s diverse parts. Reiterating this understanding of

justice as embrace and reconciliation, retired Anglican bishop of Kitgum (one of the most LRA-

affected areas of Acholiland) and then vice president of the Acholi Religious Leaders Peace

Initiative (ARLPI), Rt. Rev. Macleord Ochola II once reported:

Mato oput is one of the best justice systems in the world because it forgives and

restores broken relationship, and creates the process of healing in the hearts of

those who have been wounded by violence and death

(Bartlet, 2009, p.51)

In the same breath, Acholi cultural leader Rwot David Onen Acana II, who assumes the character

of Paramount Chief of Acholiland, too reported:

17


The ICC needed to learn about forgiveness and reconciliation from the people in

Acholiland and that the ‘eye for an eye’ form of justice that the ICC was

attempting was not suited for Acholiland, where it is widely perceived here that

this is primitive

(Bartlet, 2009, p. 52)

It can hence be inferred that many of Africa’s community practices meant to right a wrong

committed, such as the Mato Oput tradition among the Acholi, are not in agreement with the lex

talionis principle of retributive justice, even though they may require that perpetrators offer some

form of compensation to their victims. As a rule, these community practices of transitional

justice are restorative in nature. Unlike retributive justice mechanisms, restorative justice rituals

take account of the psychological healing of victims through involving them in the process as

well as the cooperation of offenders in order for them to fully enjoy the dividends of restoration

after evil deeds.

6. Conclusion

Impediments to peace differ in different contexts, but it is no exaggeration to state that peaceful

communities have many things in common. By and large, avoiding the dangers of othering

would be one of the most promising ways to secure durable peace in the aftermath of violent

conflict. The rationale for avoidance of othering—search for bits of characterisation in terms of

some “us” as against some “other”—is that the latter tends to bestow, in a more oversimplified

manner, a socially acceptable call for retribution or punishment to members of the ‘out-group’

(considered as offenders) as opposed to those of the ‘in-group’ (considered as victims) following

a convoluted manifestation of violence. In fact, throughout this two-decade long plus armed

conflict, hegemonic discursive structures by one party to the conflict (GoU) have either caused

compliance or inhibited dissent to perceptions, attitudes and behaviours which eventually

rendered and still continue to render military offensive against the other party to the conflict

(LRA) a legitimate form of action in the search for peace.

Undoubtedly, both as individuals and collectivities, the almost naturalised expectation whenever

a wrong is committed is that justice ‘has to be done or at least must be seen to be done.’ The

prevailing normative expectation that has however shaped the so-called appropriate response to a

18


wrong has been largely influenced by the notion of lex talionis—more often used to refer to a set

of legal categories of punishments proportionate to a crime committed. Vis-à-vis this approach

towards righting a past wrong, described as ‘retributive justice,’ Pillay (2010) posed a series of

questions of Kantian order, asking whether retributive justice is a categorical imperative. Put

differently, Pillay (2010) interrogated whether justice-as-punishment is something that must

always be carried out when a wrong has been committed. Is the principle of justice-as-

punishment absolute? Are there conditions or circumstances that may arise whereby a post-

violence society is compelled to set aside the legal imperative to exercise justice as punishment?

What this protracted armed conflict conspicuously indicates is the fact that any judicial pursuit

meant to solely bring the LRA’s top leadership to account would simply underscore the chase for

a victor’s (GoU) justice and would therefore systematically remove all available potential for

ensuring lasting peace. More specific, in an open letter addressed to President Museveni the

noted Ugandan scholar, Mahmood Mamdani, wrote:

[…]The ICC was created to hold governments accountable, especially concerning

large-scale atrocities against civilians, defined in law as ‘crimes against

humanity’. This is why the internment of a million plus civilians in armed camps

in the north, without adequate provision of security or food or medicine, should

have been a prime concern for the ICC. But the ICC has chosen to focus its

apparatus of justice on just one side of the conflict, the LRA. By providing

impunity for the government while seeking to bring the rebels to justice, the ICC

is contributing to the continuation of the northern war, rather than its resolution.

(Pillay, 2010, p. 351 quoted from J. Namutebi, New Vision, 05 December 2005)

Besides, while staunch international human rights law scholars argue that effective investigations

and prosecutions are central to the realisation of the ICC’s mandate to bring fair, credible, and

meaningful justice, they also admit that constraints in cooperation, security of staff and

witnesses, and resources do pose real difficulties for the Court, affecting the prosecution and

defense teams. Should retributive justice therefore have to be tempered for the sake of

reconciling enemies who have to live together and create a single socio-economic and political

community? More than anything else, the case of this protracted armed conflict which has so far

pitted the LRA against the UPDF in collaboration with other government armed forces stresses

one key concern, namely, the notion that the question of justice (in terms of righting past wrongs

19


through criminal accountability) is also the question of peace (in terms of harmonious co-living

through reconciliation). In this context, the pursuit of justice in a restorative manner remains

central to the efforts of those who prioritise the need to end this conflict because it allows for

instruments that simultaneously take note of the wrongs committed and are amenable to

“principled compromises” for the sake of reconciliation and peace (Pillay, 2010, p. 350 quoted

from J. Allen, 1999).

Borrowing from Zehr’s viewpoints Menkel-Meadow (2007) described the essence of the pursuit

of restorative justice in the following terms:

Restorative justice usually involves direct communication, often with a facilitator,

of victims and offenders, often with some or full representation of the relevant

affected community, to provide a setting for the acknowledgement of the fault by

the offender, restitution of some sort to the victim, including both affective

apologies and material exchange or payment and often new mutual

understandings, forgiveness and agreed-to new undertaking for improved

behaviors. In its most idealized form there are four Rs of restorative justice:

repair, restore, reconcile, and re-integrate the offenders and victims to each other

and to their shared community.

(Menkel-Meadow, 2007, p.102)

Above all contestation, contemporary scholars of transitional justice do agree that local

ownership in any such justice mechanisms is of paramount importance in order to create a

peaceful post-war society. Subjecting LRA’s top leadership to prosecution, whether by an

exogenous (the ICC) or endogenous (a Special Criminal Division at the High Court) judicial

structure—in the quest for criminal accountability—eliminates the much needed option on the

side of the government to make the political choice of granting genuine amnesty to the former in

the search for durable peace. More specific, such push for criminal prosecution for the one party

to the conflict (LRA) jeopardises the restoration of the psycho-socio-cultural as well as politico-

economic fabric of affected societies, whether in the aftermath of violence (for the case of

Uganda) or continued violence (for the case of other affected countries). Since peace itself is not

simply the absence of direct violence, ending this armed conflict through a military win by one

party to the conflict (and allies)—although this too has so far proven to be elusive—may only

create a short-term relief (fragile peace) unless deep-seated animosities, mistrust and bitterness

that produced—and continue to sustain—the conflict in the first place are duly addressed. After

20


all, lasting peace in the aftermath of violence is derivative of lasting interventions in the

livelihood of all who form the post-violence society—victims, offenders as well as bystanders.

Perhaps, Oresteia, the celebrated classical trilogy of plays by ancient Greek writer Aeschylus in

which the author narrated three tales that focus on the events that followed the Trojan War,

subtly reiterates the need to reconsider the notion of lex talionis in the quest for righting past

wrongs. Movingly, Pillay (2010) recapitulated Aeschylus’ lesson in the following words:

The first story commences with the Greek King Agamemnon’s victorious return

from the battle for Troy along with his prize, the Princesse Cassandra, and the

unfortunate chain of events that this sets off. It is a compelling tale that sets out in

staged dramatic form the generational intrigues that destroy the House of Atreus.

In this famous story successive acts of injustice beget new acts of injustice and

unleash a cycle of turmoil unforeseen by the central protagonists when they began

their original quest for justice. The central lesson for Aeschylus is that the manner

in which we right wrongs may impact on the future in ways that we might not

have intended or desired.

(Pillay, 2010, p. 348)

Against all odds so far registered in bringing this protracted armed conflict to a definitive end,

dialogue in lieu of further confrontation ought to be reconsidered as key option in order to

address deep-seated drives that continue to fuel this armed conflict beyond the confines of

Uganda. By accepting to dialogue with diverse histories and circumstances, memories and

experiences, views and beliefs, the horizons of those who have been party to the conflict—

whether directly involved (LRA and GoU) or indirectly implicated (South Sudan, Sudan, CAR

and DRC) could widen to see beyond protractedness. Even more insightfully, Freire’s notion of

dialogical relations underpinned this possibility in the following words:

Dialogue is the encounter between men, mediated by the world, in order to name

the world…dialogue is thus an existential necessity. And since dialogue is the

encounter in which the united reflection and action of the daloguers are addressed

to the world which is to be transformed and humanized, this dialogue cannot be

reduced to the act of one person’s ‘depositing’ ideas in another, nor can it become

a simple exchange of ideas to be ‘consumed’ by the discussants…Because

dialogue is an encounter among women and men who name the world, it must not

be a situation where some name on behalf of others.

(Freire, 1970, pp. 69-70)

21


Pillay (2010) finally underscored that if justice and reconciliation are in tension, then the balance

between the two is best judged according to the criteria of what most effectively creates lasting

peace and stability in a divided political community. By and large, the demands of justice in

today’s LRA-affected region go far beyond what any retributive endeavour—whether under the

auspices of the ICC or otherwise—can deliver. Assuredly, the less conspicuous but more

pertinent concern for the majority of vulnerable members from the LRA-affected region consists

of a fuller restoration of their psycho-social as well as economic tissues torn apart by this armed

conflict. Away from the need for a military victory and/or internationalised criminal prosecution

against the LRA (now in armed rebel activism beyond Uganda), a context-specific restorative

justice has a huge potential for the building of lasting peace by addressing both the material

discrepancies and psychological legacies of conflict. The main objective of such pursuit of

justice should consist of creating a fresh political community from a fractured historical

experience. Only then can a more nuanced understanding as well as a much more appropriate

application of justice with peace be achieved.

22


References

Adler, E. “Seizing the Middle Ground: Constructivism in World Politics.” in European

Journal of International Relations, Vol. 3(3), 1997, pp. 319-363.

Agger, K. “Blind Spots: Gaining Access to Areas Where LRA Operates” [Online]

Enough Project publications, November 2013. Retrieved from

http://www.enoughproject.org/files/BlindSpots-GainingAccesstoWhereLRAOperates.pdf

[Accessed on 29 November 2013]

Ahere, J. & Maina, G. “The never-ending pursuit of the Lord’s Resistance Army: An

analysis of the Regional Cooperative Initiative for the Elimination of the LRA” in ACCORD’s

Policy & Practice Brief, Issue No. 24, March 2013. Durban: ACCORD. Available online at

www.accord.org.za

Allen, T. (2006) Trial Justice: The International Criminal Court and the Lord’s

Resistance Army. Michigan: Zed Books.

Angucia, M. (2010) Broken Citizenship: formerly abducted children and their social

reintegration in northern Uganda. Amsterdam: Rozenberg Publishers.

Atkinson, R. R. “From Uganda to the Congo and Beyond: Pursuing the Lord’s Resistance

Army” International Peace Institute (IPI) Publications, December 2009. New York: IPI.

Available online at www.ipinst.org

Bartlet, M. “Forgiveness, Reconciliation and Judicial Process in Northern Uganda: The

Lord’s Resistance Army and the International Criminal Court” in Africa Peace and Conflict

Journal, Vol. 2, No. 2, December 2009, pp. 42-57.

Bass, G. J. “Managing Amnesty” A paper presented at the Transitional Justice and Civil

War Settlements’ workshop in Bogotá, Colombia 18-19 October 2005.

Conciliation Resources “‘When will this end and what will it take?’ People’s perspectives

on addressing the Lord’s Resistance Army conflict” [Report] November 2011. London: CR

Publications. Also available online at www.c-r.org/

Elster, J, 2004. Closing the Books: Transitional Justice in Historical Perspective.

Cambridge: Cambridge University Press.

Finnström, S. “‘For God and My Life’ War & Cosmology in Northern Uganda” in

Richards, P. (ed.) (2005) No Peace, No War: An Anthropology of Contemporary Armed

Conflicts. Oxford & Athens: James Currey Ltd. & Ohio University Press, pp. 98-116.

Freire, P. (1970) Pedagogy of the Oppressed. [Translated by Myra Bergman Ramos]

London: Penguin Books.

http://www.enoughproject.org/files/BlindSpots-GainingAccesstoWhereLRAOperates.pdf

http://www.accord.org.za/

http://www.ipinst.org/

http://www.c-r.org/

23


Galligan, D. J. “The Return of Retribution in Penal Theory” in C. F. H. Tapper (ed.)

(1981) Crime, Proof and Punishment. Oxford, UK: Butterworth & Co.

Galtung, J. (1996) Peace by Peaceful Means: peace and conflict, development and

civilization. London: Sage Publications.

Gavron, J. “Amnesties in the light of developments in the international law and the

establishment of the International Criminal Court” in International Comparative Law Quarterly,

Vol.51, 2002, pp. 91–117.

Ginyera-Pinycwha, A. (1992) Northern Uganda in National Politics. Kampala: Fountain

Publishers.

Gloppen, S. “Roads to Reconciliation—a Conceptual Framework” in E. Skaar, S.

Gloppen & A. Suhrke (eds.) (2005) Roads to Reconciliation. Lanham, MD: Lexington Books.

Herman, J. L. (1992) Trauma and Recovery. London: Pandora.

Huyse, L. “Introduction: tradition-based approaches in peacemaking, transitional justice

and reconciliation policies” in L. Huyse & M. Salter (eds.) (2008) Traditional Justice and

Reconciliation after Violent Conflict: Learning from African Experiences. Stockholm:

International Institute for Democracy and Electoral Assistance, pp. 1-21.

Komakech, L. “Exploring the place of traditional justice in post-conflict Uganda” A

seminar paper presented at Radboud University Nijmegen in October 2008]. Radboud, the

Netherlands: The Nijmegen Institute for Mission Studies.

Latigo, O. J. “Northern Uganda: tradition-based practices in the Acholi region” in L.

Huyse & M. Salter (eds.) (2008) Traditional Justice and Reconciliation after Violent Conflict:

Learning from African Experiences. Stockholm: International Institute for Democracy and

Electoral Assistance, pp. 85-120.

Marshall, F. T. “Seeking the whole justice” in S. Hayman (ed.) (1997) Repairing the

Damage: restorative justice in action. London: ISTD.

McAdams, A. J. “The Double Demands of Reconciliation” in D. Philpott (ed.)(2006) The

Politics of Past Evil: Religion, Reconciliation, and the Dilemmas of Transitional Justice. Notre

Dame, Indiana: University of Notre Dame Press.

Menkel-Meadow, C. (2007) Restorative Justice: What Is It and Does It Work?

Washington: Georgetown University Law Centre.

Noll, E. D. (2011) Elusive Peace: How Modern Diplomatic Strategies Could Better

Resolve World Conflicts. New York: Prometheus Books.

Opak, S. (2010) The Road Map to Peace in East and Central Africa. Soroti: Source Opak

Publications.

24


Pillay, S. “Conclusion” in C. Sriram & S. Pillay (eds.) (2010) Peace vs Justice? The

Dilemma of Transitional Justice in Africa. Durban: University of Kwa-Zulu Natal Press.

Vinjamuri, L. & Snyder, J. “Advocacy and scholarship in the study of international war

crime tribunals and transitional justice” [Online] in Annual Review of Political Science, Vol. 7

No.1,2004, pp. 345-362. Retrieved from

http://dx.doi.org/10.1146/annurev.polisci.7.012003.104755 [Accessed on 17 March 2012]

Wierzynska, A. “Consolidating democracy through transitional justice: Rwanda’s gacaca

courts” in The New York University Law Review, Vol. 79, 2004.

Zehr, H. (1990) Changing Lenses: A New Focus for Crime and Justice. New York:

Herald Press.

http://dx.doi.org/10.1146/annurev.polisci.7.012003.104755

The unfinished business of the Lord’s Resistance Army: Reinvigorating the abandoned Juba peace...

Documents

Transcript of The unfinished business of the Lord’s Resistance Army: Reinvigorating the abandoned Juba peace...