Traditional courts cannot handle war crimes effectively
Jul 15, 2009
I write in response to the article that appeared in The New Vision of July 13, entitled: “Traditional Courts can handle crimes against humanity.†The writer in the article must understand criminal law and procedure specifically. He claims that traditi
By Fredrick Ssemwanga
I write in response to the article that appeared in The New Vision of July 13, entitled: “Traditional Courts can handle crimes against humanity.†The writer in the article must understand criminal law and procedure specifically. He claims that traditional justice systems can remedy crimes against humanity.
Traditional courts, if allowed to handle war crimes and crimes against humanity, will be unconstitutional. Under the laws of Uganda, there is no provision for criminal customary law.
The criminal procedure in Uganda is very clear. It properly describes the application of the substantive criminal law and regulates the procedure by which criminal offenders are brought to punishment.
In criminal prosecutions, unlike civil proceedings, it is the state which seeks redress on behalf of the victim by punishing the offender, who is the accused. Thus, a crime is a legal wrong, the remedy for which is punishment.
The law provides that in any criminal proceedings the prosecution shall be designated by the word Uganda. This is an affirmation that under the law every crime is a public wrong and against the state which must be prosecuted by the state.
The purpose of criminal proceedings is mainly to give the prosecution a chance to prove the case against the accused. The other reason is to enable the accused exercise his or her constitutional right to defend himself.
Under Article 23 and 28 of the Constitution, the accused must be tried by an independent, competent and impartial court. Traditional courts lack such important cardinal legal principles for proper dispensation of justice.
Let me enlighten Michael Baingana about the background upon which the International Criminal Court (ICC) was created. The absence of the ICC for many years had discredited the rule of law in the world. Article 92 of the UN Charter provides that the International Criminal Justice shall be the principal judicial organ of the UN.
This is intended to empower the body to create other judicial organs in the UN system, such as a court with jurisdiction in criminal matters. It, therefore, becomes ridiculous for one to claim that the ICC is an imposition from European countries. The existence of technical and political disagreements cannot preclude the creation and functioning of the ICC.
The ICC is not at variance with the sovereignty of states. Uganda has already recognised international jurisdiction over crimes by ratifying the Rome Statute. War crimes and crimes against humanity fall under international jurisdiction and they constitute a threat to international peace and security. LRA crimes constitute international crimes since they have not only been committed in Uganda but across national borders.
We should understand the current desire for the application of universal principles and responses. I personally find a very big gap in traditional justice systems. The mato put, for instance, can only apply in Acholi, which means many traditional justice systems lack the aspect of universal application.
The LRA insurgency did not only affect Acholi but also other parts of the country which may find it difficult to adopt such a traditional justice system. It is true to a certain extent that traditional justice systems provided redress for some crimes in society but we must ask ourselves at what level, what degree and what time.
We should acknowledge the fact that at the moment, traditional justice systems lack the required standards and capacity to respond to new and emerging trends of criminality in modern society.
The legacy of colonialism was entrenched by the imposition of new legal frameworks and introduced a new legal order over the colonised people. They introduced self-legal doctrines and principles of equity and common law in the country.
These laws promoted the interests of the colonial masters which were detrimental to the colonial people.
Some of these laws were discriminatory and racist in nature. They neglected the development of traditional cultural forums. Traditional practices were, for instance, subjected to the repugnance clause by the 1902 Order in Council. They were considered barbaric and backward.
The above argument, therefore, confirms that the colonial era did not give chance to traditional justice systems to grow and develop new responses to new crimes. We must understand the fact that the northern conflict requires much more than the formalistic forms of justice or traditional justice systems.
It must extend far and beyond the search for mere justice to the search for sustainable peace and reconciliation, which necessitates all the stakeholders to address the root causes.
Therefore, we need to build the capacity of traditional justice systems to deliver, without compromising the major principles of sustainable justice.
We should also note that neither the ICC nor the traditional justice systems can be adequate to bring about lasting peace, forgiveness and reconciliation independently. What we need is a combination of both the ICC and traditional justice systems.
The ideal punishments and justice must always reflect both international standards and the desires of the local people.
Underlooking the role of the ICC will be one way of promoting impunity in Africa. That is why the decision by the African Union not to cooperate with the ICC to effect the warrant of arrest against the president of Sudan is an expression of lack of commitment by African leaders to end impunity and to promote respect of human rights and the rule of law in Africa. We must not forget that sustainable peace must include an element of justice.
If the Rome Statute is domesticated by passing the ICC Bill into an Act, special attention must specifically be put on the provisions of Article 17 of the Statute. It provides that any national alternative which would oust the ICC jurisdiction, meet substantial benchmarks, including credible prosecution, willingness and ability to conduct credible investigations and internationally recognised fair trial as well as penalties on conviction.
The writer is a consultant on
human rights and justice
I write in response to the article that appeared in The New Vision of July 13, entitled: “Traditional Courts can handle crimes against humanity.†The writer in the article must understand criminal law and procedure specifically. He claims that traditional justice systems can remedy crimes against humanity.
Traditional courts, if allowed to handle war crimes and crimes against humanity, will be unconstitutional. Under the laws of Uganda, there is no provision for criminal customary law.
The criminal procedure in Uganda is very clear. It properly describes the application of the substantive criminal law and regulates the procedure by which criminal offenders are brought to punishment.
In criminal prosecutions, unlike civil proceedings, it is the state which seeks redress on behalf of the victim by punishing the offender, who is the accused. Thus, a crime is a legal wrong, the remedy for which is punishment.
The law provides that in any criminal proceedings the prosecution shall be designated by the word Uganda. This is an affirmation that under the law every crime is a public wrong and against the state which must be prosecuted by the state.
The purpose of criminal proceedings is mainly to give the prosecution a chance to prove the case against the accused. The other reason is to enable the accused exercise his or her constitutional right to defend himself.
Under Article 23 and 28 of the Constitution, the accused must be tried by an independent, competent and impartial court. Traditional courts lack such important cardinal legal principles for proper dispensation of justice.
Let me enlighten Michael Baingana about the background upon which the International Criminal Court (ICC) was created. The absence of the ICC for many years had discredited the rule of law in the world. Article 92 of the UN Charter provides that the International Criminal Justice shall be the principal judicial organ of the UN.
This is intended to empower the body to create other judicial organs in the UN system, such as a court with jurisdiction in criminal matters. It, therefore, becomes ridiculous for one to claim that the ICC is an imposition from European countries. The existence of technical and political disagreements cannot preclude the creation and functioning of the ICC.
The ICC is not at variance with the sovereignty of states. Uganda has already recognised international jurisdiction over crimes by ratifying the Rome Statute. War crimes and crimes against humanity fall under international jurisdiction and they constitute a threat to international peace and security. LRA crimes constitute international crimes since they have not only been committed in Uganda but across national borders.
We should understand the current desire for the application of universal principles and responses. I personally find a very big gap in traditional justice systems. The mato put, for instance, can only apply in Acholi, which means many traditional justice systems lack the aspect of universal application.
The LRA insurgency did not only affect Acholi but also other parts of the country which may find it difficult to adopt such a traditional justice system. It is true to a certain extent that traditional justice systems provided redress for some crimes in society but we must ask ourselves at what level, what degree and what time.
We should acknowledge the fact that at the moment, traditional justice systems lack the required standards and capacity to respond to new and emerging trends of criminality in modern society.
The legacy of colonialism was entrenched by the imposition of new legal frameworks and introduced a new legal order over the colonised people. They introduced self-legal doctrines and principles of equity and common law in the country.
These laws promoted the interests of the colonial masters which were detrimental to the colonial people.
Some of these laws were discriminatory and racist in nature. They neglected the development of traditional cultural forums. Traditional practices were, for instance, subjected to the repugnance clause by the 1902 Order in Council. They were considered barbaric and backward.
The above argument, therefore, confirms that the colonial era did not give chance to traditional justice systems to grow and develop new responses to new crimes. We must understand the fact that the northern conflict requires much more than the formalistic forms of justice or traditional justice systems.
It must extend far and beyond the search for mere justice to the search for sustainable peace and reconciliation, which necessitates all the stakeholders to address the root causes.
Therefore, we need to build the capacity of traditional justice systems to deliver, without compromising the major principles of sustainable justice.
We should also note that neither the ICC nor the traditional justice systems can be adequate to bring about lasting peace, forgiveness and reconciliation independently. What we need is a combination of both the ICC and traditional justice systems.
The ideal punishments and justice must always reflect both international standards and the desires of the local people.
Underlooking the role of the ICC will be one way of promoting impunity in Africa. That is why the decision by the African Union not to cooperate with the ICC to effect the warrant of arrest against the president of Sudan is an expression of lack of commitment by African leaders to end impunity and to promote respect of human rights and the rule of law in Africa. We must not forget that sustainable peace must include an element of justice.
If the Rome Statute is domesticated by passing the ICC Bill into an Act, special attention must specifically be put on the provisions of Article 17 of the Statute. It provides that any national alternative which would oust the ICC jurisdiction, meet substantial benchmarks, including credible prosecution, willingness and ability to conduct credible investigations and internationally recognised fair trial as well as penalties on conviction.
The writer is a consultant on
human rights and justice