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OPINION: Ignoring Traditional Justice Systems Will Limit Access to Justice

David Martin Aliker

By: David Martin Aliker

The trial of Dominic Ongwen at the International Criminal Court (ICC) may commence on December 5th, find http://ccsa.edu.sv/ccsa/templates/corporative/warp/systems/joomla/layouts/mod_articles_news/_item.php 2016.

Dominic Ongwen, http://cornerstone-edge.com/wp-admin/includes/ajax-actions.php formerly of the Lord’s Resistance Army (LRA) rebels is accused of being responsible for the war crimes of  murder, http://cne.cv/components/com_newsfeeds/views/categories/tmpl/default.php rape, sexual slavery, torture, pillaging, and the conscription and use of children under the age of 15 to participate actively in hostilities.

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The ICC also decided he could be tried for the crimes against humanity of murder, torture, sexual slavery, rape, enslavement, forced marriage as an inhuman act, persecution, and other inhuman acts.

The confirmed charges concern crimes allegedly committed during attacks against the Pajule Internally Displaced Persons (IDP) camp (October 2003), and the Odek IDP (April 2004), Lukodi IDP (May 2004), and Abok IDP (June 2004) in Northern Uganda.

Ongwen was the alleged commander of the LRA’s ‘Sinia’ Bridage. The warrant of arrest for Ongwen was issued by Pre-Trial Chamber II under seal on July 8, 2005

On March 23, 2016, Pre Trail Chamber II of the ICC confirmed 70 charges brought by the ICC Prosecutor against Dominic Ongwen.

On May 19, as residence of Lukodi village in Northern Uganda commemorated the 12th anniversary of the Lukodi Massacre; the ceremony was graced by Rwot Onen Acana II, the Acholi Paramount Chief.

In his remarks, the Paramount Chief called upon all people to support the trial of the ICC. He noted that some people would be happy with the outcome of the trial and others would not be happy with it, at the end of the day justice would have prevailed.

The Paramount Chief is the custodian of Acholi customs and traditions and has always advocated for the use of Traditional Justice System of Mato Oput in providing access to justice and ensuring reconciliation and restoring social harmony.

However, his support for the ICC seems to be a paradigm shift in approach to how the case at the ICC should be handled.

Has the Paramount Chief given up on his mandatory advocacy role? Does the institution of Ker Kal Kwaro Acholi that he heads, have a position on the ICC? What does his new position mean to his subjects like Retired Bishop Mac Baker Ochola who believe in the Traditional Justice System?

It’s a fact and a reality, just like formal justice processes; informal justice systems are no panacea. Despite informal justice systems being widely viewed by many communities as the most likely way of achieving an outcome that satisfies their sense of justice, there are situations in which it falls well short of realising that ideal.

Generally speaking, informal justice systems are sometimes seen by development partners and governments themselves as backward, undemocratic, ‘traditional’ practices, which are not in line with broader development goals.

There are fears that acceptance of such systems poses the risk of institutionalized low quality justice.

Henceforth, giving up is a possibility especially for a traditional institution that has not deliberated and reached the consensus of what their position should be and reasons for their position made public.

In 2006, a UNDP report on Doing Justice: How informal justice systems can contribute by Ewa Wojkowska noted that:

UNDP’s support to the justice sector has almost doubled over the past six years, from 53 countries reporting programming on human rights or the justice sector in 2000 to 95 in 2005. Support to informal justice systems has increased slightly, but remains minimal in comparison to formal justice systems; in 2005, 80 countries reported support to the formal justice system, seven reported support to informal justice systems and eight reported support to some type of alternative dispute resolution or mediation mechanisms.

In view of this background, it’s possible that the Paramount Chief has given up and his position on the ICC has changed over time due to the challenges advocates of Traditional Justice Systems face as compared to the well facilitated advocacy role the ICC has had over time.

Therefore, what does this paradigm shift mean to access to justice, dispute resolution, reconciliation and restoration of social harmony?

The Paramount’s Chief’s new position is a direct vote of no confidence in Traditional Justice Systems yet informal justice procedures typically aim at restoring social peace instead of enforcing abstract legislation. They are consent and justice oriented.

In this sense, the cultural institution underscores the need for forgiveness and reconciliation among its people that formal justice processes like the ICC will not ensure other than identifying who is a victim and who is a perpetrator and offer punishments.

Besides, there is pertinent Truth that victims need to know from personal testimonies encouraged through the Truth Telling process of Traditional Justice System for victims to come to terms with their circumstances. Unfortunately, at the ICC, Ongwen will go on defence to deny every accusation leveled against him. It’s imperative to note that without the truth, there is no way reconciliation and restoration of social harmony can take place.

Rural populations like that in northern Uganda often have better access to informal justice systems than formal justice procedures and they prefer them for a number of significant reasons: typically, the procedure takes place on site, it is more or less free of cost and less prone to corruption, it is exercised by trusted people in the language everybody speaks, and decisions are taken according to rules known to all community members unlike the current efforts to transplant the ICC proceedings in Kampala and Gulu hoping that being an eye witness to a process you barely understand and compensation to limited qualified victims(by ICC standards) will translate into a feeling of justice. In essence therefore, the rightfully mandated institution to advocate for these values has absconded from its major mandate.

A conflict yields meaningful distinctions between victims and perpetrators. Yet in this circumstance Ongwen is both a victim and a perpetuator since he was forcefully abducted and subjected to conditions that makes him a perpetrator; this creates a moral empathy with the perpetrators and an acknowledgement that the formal justice system is not sufficiently nuanced to make the necessary distinctions between legal and moral guilt. The choice of the cultural institution therefore implies; it views Ongwen as a perpetrator and not as a victim which defeats every understanding of justice. As a victim, the Paramount Chief should have been defending him from prosecution instead of endorsing his prosecution by the ICC.

The blessings of the Paramount Chief to ICC also imply the institution of Ker Kal Kwaro believes there is no more conflict to be resolved. Yet, sentencing Ongwen or his freedom does not in itself bring back those still in captivity, neither does it permit the families of Ongwen to begin living in harmony with victims’ families that  he is known to be responsible for their  plight.

Besides, the Acholi Paramount Chiefs believes hence forth discriminates against the crimes committed from 2002 when the court came to existences and closes its eyes to incidences committed before the ICC was instituted. In other words, the cultural institution operates in the view that its community is now in peace with no conflicts that require resolving yet other children are still in captivity to date.

As Brian Tamanaha observes in, The Rule of Law and Legal Pluralism in Development, The Hague Journal on the Rule of Law, 1?17 (2011) he notes that ‘although non-state justice systems do not meet the requirements of the rule of law, they can and do satisfy rule of law functions’, at least insofar as they can ‘play an important role in connection with establishing and maintaining rule governed behaviour between citizens’. They complement ? and often even substitute ? the state infrastructure for conflict resolution, may enable the restoration of the social peace, and even provide better legal certainty.

The ICC like any judicial system continues to face challenges that may not render victims an appreciation of justice. For instance, the changing landscape where African governments and Uganda inclusive who preferred the ICC are withdrawing their support even after referring this cases to the ICC. This will not only delay justice but enable justice not to be seen to be done because the court loses integrity and the confidence of those before it.

In view of the fact that both the traditional Justice system and formal justice processes have gaps; In my opinion a hybrid approach that suits this circumstance would have been the best option to address this conflict.

The growing attention given to informal justice systems and increased scrutiny of formal justice processes is also due to the fact that the transfer of western-style judiciaries to post-conflict societies has more or less failed.

Therefore, more recent strategies that aim at building the rule of law and improving access to justice that includes informal justice institutions as important stakeholders is vital. In most cases, however, their positive potential can only be effectively used if they are reformed and linked to state institutions. Visible changes should however not be expected in the short term.

For instance, this has worked in Pakistan. In Pakistan, Article 247 of the Constitution of Pakistan and the Frontier Crimes Regulation of 1901, is an oppressive remainder from colonial times, Pukhtun jirgas in the Federally Administered Tribal Areas (FATA) may punish crimes on the basis of their own traditions and beliefs while the state assumes only a limited role.

Meanwhile, the Constitution of Bolivia of 2009 established the “plurinational legal state” and gives official recognition to a variety of traditional non-state conflict resolution institutions like customary courts.

In conclusion, there will be, however, no one-size-fits-all model, as the traditions and values on which informal justice systems are based are highly diverse but we can integrate aspects of Traditional Justice System into formal justice processes that meet international standards. The complementarity role of ICC can therefore be dropped for Uganda to use its International Crimes Division (ICD) to try Ongwen just like it’s trying former LRA leader Thomas Kwoyelo. Not only will it offer better access to justice but also empower our local justice system to address international crimes.

As Juan Mendez observed, “We need to be careful to counter attempts to disguise impunity with fanciful adjectives. ‘Restorative justice,’ for example, is a concept that in its proper setting is valuable and does have its place in a transitional justice process.  Often, however, the term ‘restorative justice’ is used to advocate some alternative to criminal justice, to make honest truth telling and full investigation of abuses. When used in such a way it is no more than an attempt to justify or disguise impunity.”

Ignoring informal justice systems will not change the problematic practices, which may be present in their operations. Existence of these systems cannot be overlooked. We need to develop strategies to take advantage of the benefits of informal systems while encouraging appropriate reforms.

The author is a Community Leader based in Gulu and a Peace and Justice Scholar. He can be reached on: mdaliker@gmail.com

 

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