Concerned by African leaders' reluctance to support the International Criminal Court's (ICC) arrest warrants, Dieu-Donné Wedi Djamba argues that the failure to cooperate severely undermines global efforts to tackle impunity. While Africa's leaders consistently present the ICC as a tool of Western oppression which purely targets Africans, their lack of support actually reflects a fear of being the next arrested and a desire to offer mutual protection to allies, Wedi Djamba concludes.

http://www.pambazuka.org/images/articles/377/48543leaders.jpg Dieu-Donné WEDI DJAMBA argues that the march toward democracy in Africa is not only under threat by dictators using dictatorial means to stay in power, but also by democratically elected leaders who use democratic processes to cement their hold over power.

Due to the legacy of authoritarian regimes, the Global South is facing a challenge in establishing the Rule of Law. But what raises concerns is that there is a trend toward disregarding pillars of the Rule of Law such as the Constitution or free and fair elections by those who currently rule their respective countries soon after being democratically elected.

Instead of being implemented, the Rule of Law moves one step forward and two steps back, holding back society through anti-democratic practices such as electoral fraud, the violation or the review of the Constitution by the democratic elected leaders.

1. ELECTORAL FRAUD

Change of governments and those in poweris one of the characteristics of democracy and this has to be done through free and fair elections.

With different authoritarian regimes, the Global South witnessed several so-called presidential elections with either a single candidate or many candidates without any chance of winning. An example is Chad where in the 2006 presidential elections; the president was re-elected with ninety nine percent. In Zaire(currently DRC) during Mobutu’s time or in Togo where as the world watched, a military government adopted the façade of democracy. There is the other kind of electoral fraud such as presidential elections in Zimbabwe.

But, if the mass frauds during these elections are organised by those who originally came into power by an anti -democratic way (coup, rebellion, revolution) and try to maintain themselves in power through so-called elections, the Global South faces a new challenge where the democratically elected leaders who once in power do not hesitate to use any illegal practice in order to win elections. The leading maxim seems to be “As I am now here it is forever.”

In this regard. The recent Kenyan crisis is a loud example of the attempt to hold back the Rule of Law by a democratic elected leader.

Indeed Kenya was deeply affected by a bloody crisis that left more than one thousand killed and thousands displaced, churches, shops and houses burned, all caused of an electoral coup by president Mwai Kibaki who came in power in 2002 after democratic elections that ended the long authoritarian regime started with Jomo Kenyatta in 1963 and continued by Daniel Arap Moi in 1978. These last elections took Kenya five years.

2. THE VIOLATION OR REVIEW OF THE CONSTITUTION

As it is well known, in the authoritarian regime, the leader designs the Constitution to meet his political needs.

Unfortunately this practice is becoming more and more prelevant amongst leaders who were democratically. Indeed, in the Global South, the Constitution, one of the pillars of the Rule of Law is coveted by those who have the duty to protect it.

In this regard, last February 2008 the Global South witnessed the violation of the Constitution by the Congolese president democratically elected Joseph Kabila and the prime minister Antoine Gizega who appointed magistrates in violation of the Congolese Constitution .

But the threat is also found in the review of the Constitution which aims to increase the power of the Head of the State or to allow him to remain in power through unlimited terms.

Furthermore, there is currently an attempt to review the Constitution by the dictator of Cameroon Paul Biya the one who has been in power since 1984. The review aims to allow him to be candidate in the next lections. Let us hope he will not succeed. Indeed, despite the fact Biya’s authoritarianism, the people of Cameroon are offering a real opposition to the review of the Constitution.

But the attempt to change the Constitution is not only made by the authoritarian leaders such as Paul Biya in Cameroon, but also by those democratically elected in their respective countries. The review of Constitution was attempted in Nigeria by the now former president Olusegun Obasanjo who tried through Parliament to review the provision limiting the number of terms a president may serve. He failed because the majority in Parliament voted against the amendment.

In addition, the same attempt was made by the current president of Venezuela Hugo Chavez. But contrary to the Nigerian president the president of Venezuela tried to increase his power through a referendum, but still fortunately - he failed.

CONCLUSION

The establishment of the Rule of Law is one of major challenges in the Global South. Unfortunately, while people are focused on achieving this noble objective, others are working to hold back the process.

Therefore, there is a need for the Civil society as a whole to intesify its watch dog role vis-à-vis not only where the Rule of Law still has to be established but also where it has already been established. Indeed, today the Rule of Law is threatened in the DRC, Kenya, Venezuela and Nigeria. Tomorrow may be under threat in other countries.

As the Global South is struggling to end the culture of presidents for life, the slogan “as I am now here it is forever” has to be banned because it is taking the march toward a Rule of Law in the Global South two steps back for every step forward. The end result is gross human rights violations.

*Dieu-Donné WEDI DJAMBA is a lawyer(Advocate) at the Lubumbashi Bar Association a Researcher in Transitional Justice and an Assistant Lecturer in the College of Law in Lubumbashi in the DRC.

*Please send comments to or comment online at http://www.pambazuka.org/

Horrific acts of violence were committed against women and children during and after the wars in the Great Lakes region. Dieu-Donné Wedi Djamba points to the pain and other injustices experienced by survivors in order to sensitise the regional communities and authorities to become involved with the healing process of the thousands of women and children 'so the words "never again" can have a meaning.

We want our dignity back! Time to wipe tears and heal wounds of women and girls, victims of wars in the Great Lakes region.

All societies that have faced mass trauma and violence have certain things in common, including the matter of perpetrators, bystanders and victims. Perpetrators usually argue that they obeyed orders; and that their actions were not of their own volition. Bystanders usually claim ignorance; that they did not know these things were happening; that they were not given proper information; and therefore, that they are not accountable. Most important are the victims, most of whom want to heal; and some of whom may even be prepared to forgive. [1] In brief, all three groups need a space in the new post-conflict era, in order to live peacefully vis-à-vis society and their own consciences.

But in the Great Lakes region, while the perpetrators and bystanders are living peacefully and comfortably, [2] [3] the victims, particularly women and girls, continue to experience the same nightmares. They have paid a heavy price for the deadly wars, which have caused hundreds of thousands of deaths, refugees and displacements, mass human rights violations such as rape, torture, and other atrocities, burning of houses and the looting of national resources by the different armed groups. [4] An aftermath does not seem to exist for them. Indeed, the post-conflict period is the equivalent of the period of the actual conflict.

This paper highlights the pain and other injustices experienced by women and girls during and after the wars in the Great Lakes region. The aim is to sensitise the Great Lakes region community as a whole and the region’s authorities in particular to be involved in the healing process of the thousands of women and girl victims of wars in the region; so that the words ‘never again’ can have a meaning.

The time of hurt

Although having different roots in each Great Lakes country, wars are the main time during which women and girls have been deeply hurt. Indeed, rapes, abductions, tortures, mutilations or burying women and girls alive were different strategies used by belligerents in the different wars which have affected the Great Lakes region over decades.

Protected as a weak sex, women and girls become a weapon for belligerents to destroy both enemy groups and civilians. In this regard, Amnesty International USA [5] has pointed out that rape, sometimes by groups as large as 20 men, has become a hallmark of the conflict, with armed factions often using it as part of a calculated strategy to destabilise opposition groups, undermine fundamental community values, humiliate the victims and witnesses, and secure control through fear and intimidation.

Louise Nzigire, a social worker, at Panzi Hospital in Bukavu, stated that rape has been a cheap and simple weapon for all parties in the war, more easily obtainable than bullets or bombs: ‘This violence was designed to exterminate the population’, [6] she added. Juliane Kippenberg, co-author of a 2002 Human Rights Watch report The War within the War on sexual violence against women and girls in the eastern DRC, told IRIN: ‘A lot of women [in eastern DRC] were raped in front of their children. They will be affected.’[7]

Moreover, some survivors of genocide in Rwanda grieve that the rapists told them that they had been allowed to live, but only to die of sadness.[8] But rape is not the only component of the nightmare experienced by women and girls in the region. Sexual slavery, [9] abductions, mutilations, [10] tortures and killings [11] number among this macabre series.

The post-conflict situation

After being deeply affected by several years of conflicts, the Great Lakes region is moving towards peace. There are signs such as the elections in the DRC [12], the peace talks between Ugandan government and the Lord’s Resistance Army (LRA) [13], the peace talks in Burundi between government and the Forces for National Liberation (FNL), the last Hutu rebel group which refused to be involved to the peace process [14]and the Pact on Security, Stability and Development in the Great Lakes region, signed in December in Nairobi by 12 countries of the Great Lakes region.[15]

The end of every conflict is the beginning of a new life and a moment of rising hope for many victims of the conflicts. But while others are celebrating the new beginning, women and girls are still carrying the heavy weight of tears, sadness and sorrow. A rape victim in the eastern DRC town of Goma told IRIN [16] how she and her eight-year old daughter were raped by ‘military men’ in front of her husband. The husband later rejected the woman, leaving her deal with her trauma alone.

Jeannette Umurerwa, a widow survivor of genocide in Rwanda said ‘… our past is so sad. We are not understood by society...We are not protected against anything… Widows are without their own families, no homes, or money. We become crazy. We aggravate people with our problems. We are the living dead’.[17]

Furthermore, Consolata, 38, also a genocide survivor and widow says that re-marrying would be impossible for as long as she lives. ‘I was raped several times during the 1994 genocide and I contracted HIV/Aids’, she added.[18]

Moreover, while some are carrying physical and psychological wounds of conflicts, others are experiencing violence in their daily life. Many cases of rape and other violence committed by militia and national army or police against women and girls are reported.

In this regard, Monuc (United Nations Mission in the Democratic Republic of Congo/Mission des Nations Unies en République Démocratique du Congo), the UN peacekeeping mission in the DRC [19], reported that the human rights situation in the country continues to deteriorate, as the army and police perpetrate acts of violence against civilians, and the number of reported rapes surges. Monuc also stated that there have been numerous cases in which Congolese soldiers and police have summarily executed and raped civilians, in some cases with apparent impunity. In western Bandundu Province, a policeman with the National Congolese Police reportedly shot a 60-year old woman when delivering a summons to her daughter who had been raped by another policeman.

Other victims are facing stigmatisation in their society. Human Rights Watch [20] has pointed out that the situation of rape victims is made worse by the stigma that is attached to such violence. In many cases these women and girls are ostracised to the margins of society. In some cases husbands have rejected their wives on learning they had been raped, sometimes on the pretext that the woman must have consented to the sexual relations. Thus the word ‘aftermath’ is an empty one for these victims.

The healing process

The pain and sorrow ruining the daily life of the women and girl victims of wars in the Great Lakes region push them to scream bitterly ’we want our dignity back!’ – the dignity which was taken away from them by rapists, tortures, killers, stigmatisation or insults.

It is time to wipe away the tears and heal the wounds. All those injustices women and girls in the Great Lakes region suffer must be corrected so that the long mourning they bear can end. To do this, those responsible for the mass abuses have to be held accountable in order to break the cycle of violence against women and girls, to send a deterrent message to the potential perpetrators, and to heal the wounds of victims. The second step will be the granting of reparations to the women and girl victims of wars.

Accountability for the perpetrators

Accountability for human rights violations is an important instrument in breaking the cycle of violence and impunity. It is an indispensable component of the process of healing the wounds.[21] In this regard, Alex Boraine argues that legal prosecutions have at least three additional advantages: firstly, prosecutions in most cases prevent high-ranking perpetrators from returning to positions of authority; secondly, tribunals and special courts aim to punish those who bear the greatest responsibility for human rights violations and thus assist in breaking the cycle of collective reprisals; and thirdly, due process avoids summary justice.[22]

In the post-conflict era, accountability for mass human rights abuses can be held through a judicial and a non-judicial process. Indeed, mass human rights violation occurred with the involvement of numerous of individuals. Thus it becomes almost impossible to set a trial for all those who were involved. Only those who bear heavy responsibility can stand trial. But still, it is possible to hold all perpetrators accountable by pressing them to recognise their wrongdoing and to show remorse. This can be done through a non-judicial forum, such as a truth and reconciliation commission.

Through a legacy of conflicts and repressive regimes, the Great Lakes region countries are characterised by a judicial system which is in a state of disarray,[23] or which does not guarantee a fair trial. Meanwhile in many of the countries where truth and reconciliation has not already completely failed, as it has in the DRC,[24] truth commission forums are still debatable.

However, the presence of a special tribune such as the International Criminal Tribunal for Rwanda (ICTR) and the last decision taken by Rwandan government to abolish the death penalty [25] are strong signs of the fight against impunity. Indeed, the abolition of the death penalty from its judiciary arsenal will enable Rwanda to capitalise on the fight against impunity. Countries that reject the death penalty will be able to extradite to Rwanda exiles responsible for genocide and also to carry on with the trial after the ICTR ends in 2010.

But if a step is made in the fight against impunity through the Rwandan case, the Great Lakes region still has a long way to go to end impunity. Indeed, in the DRC, despite the mass human rights violations committed during and after the wars, only some isolated cases of trials are mentioned, while many accused of mass human right abuse are awarded in name of peace.[26] In Uganda, the population is waiting for the International Criminal Court (ICC) to investigate abuses in the government army[27], which is accused of having committed many atrocities in northern Uganda. While in Burundi, an agreement about creating a special criminal tribunal [28] for mass human rights violations was reached, though more still has to be done to establish it. A boost to the fight against violence against women and girls may be expected from the UN, which chose the end of impunity for violence against women and girls as theme for the International Women Day 2007.[29]

Reparations

Granting reparations for past abuses will not bring the dead back to life. Nor will it cancel out the harm already suffered by victims. But it will provide them with some relief.

In this regard, Margaret Mathew[30] argues that reparations should be paid to victims as a form of redress to demonstrate that the state recognises the harm done against them. She has argued for broader rehabilitation programme dedicated to healing communities and strengthening the nation’s social-political fabric.

Indeed, women and girls who have been raped and otherwise sexually abused have been psychologically damaged as well as physically injured by these crimes. Many will never fully recover. A significant number of women and girls have become pregnant as a result of being raped. An unknown number have been infected with HIV, dramatically altering their future lives, livelihoods and prospects.[31]

Therefore, the granting of reparations to those who suffered from past abuses boosts the healing process of their wounds. But to be efficient, the reparation process for women and girls victims of violence in the Great Lakes region must be made at two levels: direct and indirect reparations.

Direct reparations will include the granting of money or rebuilding of housing as compensation, and free medical treatment for those who suffer by trauma or any disease such as HIV/Aids. In this regard, the establishment of a special fund by the Great Lakes region countries is a step to be applauded. This fund can be used to pay compensation to the victims of wars. Indirect reparations will include capacity building for all the victims to empower them to face many challenges arising in their post-conflict life.

Furthermore, there is a need for the Great Lakes region countries to work together in policy making around gender issues. A common policy for all violence against women and girls will show real political will not only to end the current and prevent future violence. This step can also boost the healing process of current victims by seeing through the words ‘never again’ to violence against women and girls.

Conclusion

After being a war torn and deeply devastated region through several years of conflicts, the Great Lakes region is moving towards peace. But while others are celebrating the new beginning, women and girls are still carrying the heavy weight of tears and sadness.

It is time to heal their wounds and to wipe away their tears. The long mourning must end. To do so, those responsible for violence against women girls have to be held accountable. Reparations have to be granted to those who have experienced harm.

Thus the word ‘aftermath’ may have a meaning for all the women and girl victims of war in the Great Lakes region.

* Dieu-Donné Wedi Djamba is a lawyer (advocate) at the Lubumbashi Bar association in the DRC, an independent consultant in transitional justice, a human rights activist, an assistant lecturer in a college of law in Lubumbashi in the DRC and a writer.

* Please send comments to or comment online at www.pambazuka.org

References: see link below.

Dieu-Donné WEDI DJAMBA explores what reconciliation means for the Democratic Republic of Congo (DRC). Reconciliation will not only allow Congolese people as a community to know the truth about their past in order to build a better future but also will heal their wounds, writes Wedi Djamba.

Introduction

With the election of Joseph Kabila as the fourth president of the Democratic Republic of Congo (DRC), the DRC started a new era. This era is the Third republic. For a country dealing with a legacy of two undemocratic regimes (theMobutu regime of 1965-1997 and the L.D. Kabila regime of 1997-2001) and two deadly wars (1996-1997 and 1998-2002) many challenges are faced by the elected president and his government. Amongst them is the reconciliation of the Congolese people. In this regard, many Congolese define reconciliation wrongly in terms of power-sharing while others define it through the words “forgive and forget”.

To achieve national reconciliation it takes more than power-sharing between politicians or the use of the words “forgive and forget”. Indeed, the DRC is emerging from two wars that affected her deeply and is also recovering from the legacy of dictatorship. During those two eras (war and dictatorship) many human rights violations occurred and many injustices were experienced by the population. Congolese people were divided and many disappeared. In this regard, many families are still trying to find out what happened to their loved ones.

Therefore, to move on from the past it is important to turn the page of the history. But first, there is a need to read this page. [1] Indeed, reading the page of the past allows for understanding the past mistakes in order to avoid them in the future. For a country like the DRC, the amnesia is the worst option because it is the best way for people to repeat the same mistakes. George Santayana [2], so often quoted in relation to Nazism and the Holocaust, confirmed this view when he said, `Those who forget the past are condemned to repeat it’. Consequently the DRC has to read the page of her history before turning it.

Furthermore, in the DRC, reconciliation is a process which needs to know who did what. In this regard, Alex Boraine [3] argues that transparency, accountability and truth are essential ingredients in any nation which seeks integrity, the consolidation of democracy and a culture of human rights.

Accountability

Alex Boraine argues that: “For the sake of justice, for stability and the restoration of dignity to victims, there must be accountability for the past”. [4] Indeed, all these years of the reign of undemocratic regimes and two deadly wars have left the DRC with thousands of victims but also the same amount of perpetrators. All past abuses and its victims and perpetrators has to be disclosed in order to heal the wounds of the victims and to send a deterrent message to the perpetrators.

The accountability for past abuses can be made judicially or extra-judicially. It is not possible to prosecute everybody in case of the mass abuses. Therefore, there is a need to hold those responsible for the past abuses accountable through other mechanisms such as removal from office, retirement or an obligation to apologize publicly for the wrong done. In this regard, to set up an independent commission to deal with the issue, is important.

Furthermore, accountability for the past in the DRC will draw the line between the past characterized by injustice and impunity and the Third republic that has just been born. The sentence “the recreation is over” used by the elected president, Joseph Kabila expresses the willingness to draw a line between a wrong past and the new era. And this line should start by holding accountable all those implicated in the past abuse.

Reparation

In the restorative justice perspective, reparation is defined as including any form of compensation, ex-gratia payment, restitution, rehabilitation or recognition. [5]

Reparations aim to redress injustices suffered by one or several individuals or communities. In the context of the mass past abuses in the DRC, reparations can be granted by the court through a judicial process but also by the national authority. Currently it is utopian for those victims to expect any reparation from the judicial process because firstly this involves fees which the majority cannot afford and secondly the judicial system in the DRC as noticed by Human Rights Watch [6], is in state of disarray. Thirdly, the judicial system is corrupt and was listed among the four most corrupt institutions during the transitional period in the DRC by the report of Observatoire du Code d’Ethique Professionnelle (OCEP) [7] (an anti-corruption commission set up by the state department). Therefore, the only way for the thousands of victims of past abuses to expect any reparation is through and from the government. This reparation will not change the pain suffered in the past, but will help victims to face the future.

In addition, reparations aim to restore the dignity of the victims and to heal their wounds. Indeed, in the DRC any reparation to the victims of past abuses will be an acknowledgement of their pain and a condemnation of the abuse they suffered.

The government should grant individuals reparations such as money, rebuilding of houses, free health care, free education to the children of victims, free treatment for the victims of rape or those affected by HIV/AIDS in the wake of the rape. They should also grant symbolic reparations such as building a memorial statue for those victims, or dedicating a memorial day to those victims.

Reparations will not only help victims to turn the page of the past but will also pave the way for the reconciliation process between victims and perpetrators, in particular and between the Congolese people in general.

Telling the truth

Telling the truth about terrible events is a prerequisite both for the restoration of social order and for the healing of individual victims. When truth is finally recognised, survivors can begin their recovery. [8] Furthermore, the research for truth and a commitment to truth must be undertaken by the entire nation: ordinary people, government, agencies, poets, writers, historians, academics, and whoever cares about the future. [9]

Indeed, many injustices and conflicts that occurred in the past decades left thousands of victims and divided the Congolese community as a whole. The past in the DRC is filled with plenty of mass violations of human rights - atrocities such as mass killing, rape, burning of houses, disappearance, torture or ethnic cleansing such as the conflict between Kasai community against Katanga community in 1992-1993 in Katanga province; and the conflict between Hema community and Lendu community in Ituri District between 2001 and now.

The road to reconciliation between victims and their perpetrators, or between communities, passes through a truth telling. In this regard, George Bizos [10] argues: ”It is not possible to simply forget the past, it will sooner or later come back to haunt the nation.”

Furthermore, truth telling will not only allow Congolese people to know the truth about their past in order to build a better future but also will heal their wounds. Indeed, the disclosure of the past will help many families to know what happened to their loved ones and finally to end their long mourning.

In addition, truth telling is an opportunity for those who committed any abuse to cleanse themselves of the ghosts of the past by acknowledging their wrong doings, asking for forgiveness and for the victims to forgive them. Thus, Congolese as a whole can say ‘never again’ for what happened and then turn the page of the past. To do so the establishment of a forum for national reconciliation becomes urgent.

Conclusion

This paper analysed the conditions for reconciliation in the DRC. Congolese people need to move on from the past. But they need to look back in order to move forward. Looking back has to be a national concern. This will include accountability for the past abuses, the reparation for victims of those past abuses and truth telling involving victims, their perpetrators, and all divided communities as well. Reconciliation which leads to the national unity in the DRC comes at this price.

• Dieu-Donné WEDI DJAMBA is a lawyer(Advocate)at the Lubumbashi Bar association/DRC; Independent consultant; Assistant lecturer in a College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected]; [email][email protected]

• Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] Alex Boraine, ’A country unmasked’ ,Oxford University press, 2000,p5
[2] Alex Boraine,op.cit,p4
[3] Alex Boraine,op.cit,p8
[4] Alex Boraine,op.cit,p8
[5] Wendy Orr, `Reparation delayed is healing retarded’, in Charles Villa-Vicencio and Wilhelm Verwerd (eds), Looking back reaching forward: Reflections n the Truth and Reconciliation commission of South Africa ,Cape Town :UCT,2000, p239
[6] William W.Burke-White, “International Criminal Court, Complementarity in practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo”,Leiden Journal of international Law 18( 2005),p576
[7] Radio Okapi,`Quatre services de l’Etat indexes dans la lutte contre la corruption’,http://www.radiookapi.net/article.php?id=6202>,accessed 10 december 2006.
[8] Nomfundo Walaza, ’Insufficient healing and reparation’ in Charles Villa-Vicencio and Wilhelm Verwoerd,(eds) op. cit p253.
[9] Alex Boraine,op.cit, p8
[10] Georges Bizos ’Why prosecution is necessary’, in Charles Villa-Vicencio and Erik Doxtader,(eds), The provocations of Amnesty: Memory, justice and impunity, Institute for Justice and Reconciliation,2003, p5

The International Criminal Court (ICC) has indicted LRA leader Joseph Kony and four of his lieutenants for crimes against humanity and war crimes committed during their 20-year-old rebellion. The government has proposed a traditional form of justice, Mato Oput, to replace the ICC indictments. Dieu-Donné WEDI DJAMBA explores the implications such a move will have for the post-conflict Democratic Republic of Congo, where the national judicial system is in collapse, and the only alternative left for victims of war to seek justice from is the ICC. This article is the last installment of a two-part series. The first article, entitled “The Ugandan Peace Process in Perspective” was published last week.

The ICC determines whether a State’s criminal procedure, including non-party States’ criminal procedures, conforms with the principles of “due process” or not. The standard adopted by the ICC for its determination is “the minimum guarantees” provided by the International Covenant on Civil and Political Rights (ICCPR).[1] And, Mato Oput may not conform to this principle of “due processes”.

Furthermore, there is need to improve Mato Oput for it to be suitable as an alternative to the ICC. This raises the question whether still it remains a possibility to see Kony and his senior commanders standing trial under Mato Oput, because the ICC’s Rome Statute provision article 17(admissibility principle) [2] provides that a case being investigated or prosecuted by a State member can be admissible to ICC(art.17,(1)a and b) but not reversed.

Indeed, there is jurisprudence for the ICC to prosecute Kony and his senior commanders because the Ugandan government itself referred the case to the international criminal court.

It must be noted that in order for the ICC to drop a case already at the investigation, prosecution or trial phase, and for a State to continue with the same case, this will create an judicial unsafe (delay of process). It would also be important to find out what happens if once again the same case became admissible to the ICC under articles 17(1)a and b after being handed over to a concerned State by ICC under the Complementarity principle.

Therefore, if Mato Oput will apply the international law standard, it will be helpful for the future case. Secondly, Acholi people are asking for Kony and his senior commanders to be prosecuted through Mato Oput. [3] But do they (Kony and other) ask for any prosecution by Mato Oput applying an international law standard? The possibility is they may ask for amnesty in order to avoid prosecutions. I am also of the argument that even if the Mato Oput has an international law standard it would not be the best option for Kony and his senior commanders.

The withdrawal of the warrants of arrest

Another threat faced by the ICC in the Ugandan peace process is the demand to withdraw warrants of arrest against the LRA leaders, which could set an unfortunate precedent for other ICC cases.

The wanted LRA leaders want the warrants of arrest withdrawn before they will emerge from the bush to sign the peace agreement. “The ICC warrants of arrest against the LRA leaders should be dropped, so that a peaceful conclusion to talk can be reach”, said the LRA spokesman Obonyo Olweny. [4] Otti Vincent, one of the wanted LRA leaders, said in a call to a Gulu-based radio station that “Kony and I can not attend the peace talks although they wanted one of the top leaders of the LRA to attend. We are afraid of the ICC indictment on us. If you can convince the Uganda government to withdraw the case at the ICC, we are ready to come out of the bush freely”.[5] And he warned “there will be no peace deal unless international indictment for the top rebels are dropped”.[6]

Uganda has offered the five rebels leaders a blanket amnesty if they agree to a peace deal, and hinted at a possible negotiation with the ICC over the indictment. [7] The Uganda peace talks mediator, Dr Riek Machar, has taken a middle position to the LRA’s demand that warrants of arrest be withdrawn, saying “we are not telling the ICC to stop what they are doing….We are just asking them to give the peace process a chance.”[8]

Contrary to Machar’s view, the ICC’s Prosecutor, Luis Moreno Ocampo urged that the best way to finally stop the conflict is to arrest the top leaders. And he added that “Kony will eventually face the trial.”[9]

The ICC involvement in northern Uganda is viewed as a complication by all sides. While the ICC prosecutions have been an important factor in bringing the LRA and the government to the table, they now limit the options available to mediation because they and the broad international community are unlikely to accept a deal providing a broad amnesty and lacking strong justice and accountability mechanisms. At the same time, the commanders indicted by the ICC will not be interested in any deal that fails to protect them from ICC prosecution and fails to guarantee their personal safety.[10]

If the warrants of arrest are withdrawn, the question remains: who shall be blamed? Interviewed in February, senior ICC official Phakiso Mochockoko said that “The situation in northern Uganda was referred to the ICC prosecutor (Argentina lawyer Luis Moreno Ocampo) by the government of Uganda. And as a result of that, the ICC is obliged to exercise its mandate in accordance with the statute”.[11] As such it seems that cracks in the Rome Statute would need to be found before any warrants of arrest could be withdrawn.

Under article 53 of the Rome Statute, the prosecutor has the discretion to stop prosecutions that no longer serve ‘the interest of justice’. Article 53 can only be used to end, not suspend, a case. An option of last resort subject to serious constraints, it calls for the prosecutor to consider the ‘interest of justice’, not peace. This is in line with the ICC’s stated purpose articulated in the statute’s preamble, which is to end impunity and ensure prosecution of those most responsible for the gravest crimes. As such, any decision to stop a case prior to prosecution, except on the most compelling grounds, is contrary to the court’s core principles.[12]

Therefore, if for some Ugandan people (including Kony and his senior commanders) the ICC is an obstacle towards peace, the way “to give peace a chance” as Machar says, is to leave any decision to put the prosecutions on hold to the Security Council, as provided by article 16 of the Rome Statute.

This article permits the Security Council to determine that an agreement would be in the interest of peace and to require the ICC by a chapter VII resolution to defer action for renewable one-year periods, thereby suspending and not halting prosecutions.[13]

The time limitation of one year placed on the Security Council by the Rome Statute was both a recognition that article 16 should not become a back door to impunity, and a realization that the threat of not renewing a deferral gives the Security Council a tool for ensuring compliance with an agreement. Thus, even if the Council does intervene, the LRA may not be satisfied.[14]

But the Crisis Group argues that in theory, the Security Council could give de facto amnesty by promising to renew the yearly deferrals for the lives of the indicted, though such a pledge should at least be accompanied by a clear understanding that any violations by the LRA would mean a resumption of prosecutions.[15]

Article 16 of the Rome Statute does not provide any limit in terms of how many times the Security Council should renew a deferral action. This omission is a threat for the ICC as an anti impunity symbol. And any unlimited renewal one-year period in LRA leaders’ case will set a precedent for the future ICC case and for international justice.

The Blanket Amnesty

Tina Rosenberg argues that a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the national political culture and history, the conditions necessary for dictatorship to occur, the abruptness of the transition, and the new democratic government’s power and resources. She added that different countries have chosen widely different strategies to deal with the past.[16]

Among these strategies, is the granting of amnesty. This strategy is used by different countries in order to end conflict or dictatorship regimes. Samuel P. Huntington [17] distinguishes three types of democratization transitions: transformations, replacements and transplacements.

In transformations, those in power in the authoritarian regime take the lead and play the decisive role in ending that regime and changing it into a democratic system. In replacements however, democratization results from the opposition gaining strength and the government losing strength until the government collapses or is overthrown. In transplacements, democratization is produced by the combined actions of government and opposition.

In recent past, many dictatorship regimes used the amnesty strategy during transition to democracy to grant themselves a blanket amnesty such as in Chile with the Pinochet regime.[18] Others used the National Conference Forum such as in Togo with the Etienne Gnassingbé Eyadéma regime [19] , and in the DRC (former Zaire) with the Mobutu regime.[20]

However, in transplacements, the granting of amnesty has also been chosen in many countries. This amnesty could be a broader one, such in Sierra Leone [21] or conditional such as in South Africa.[22]

Thus in order to end a war conflict or a dictatorship and to establish a real democracy, many countries have chosen to grant a amnesty. Uganda is among them.

Indeed, the Ugandan president Yoweri Museveni has offered a blanket amnesty to LRA leaders in order the end the over 19 year long deadly civil war in his country. As noticed the BBC News: “Mr. Museveni clearly feels that for now, the most important thing to achieve is peace. And, in the interest of that peace, the widespread crimes of Joseph Kony’s Lord’s Resistance Army should be put to one side.’’[23]

The ICC at The Hague may disagree. The court was founded on the basis that there can be no durable peace without justice, which to some extent satisfies victims that wrong have been addressed.[24]

At a 2002 meeting to mark the fourth anniversary of the adoption of the Rome Statute, Kofi Annan, the Secretary General of the United Nation, said “The date of 17 July 1998 will long be remembered as the world finally united to bring an end to the culture of impunity”.[25] But challenging impunity does not only mean ferreting out former dictators from wherever they may be hiding in order to have them stand trial for the crimes they committed. It also means not extending amnesties to people accused of committing crimes against humanity.[26]

However, this point of view is not shared by all Ugandan people. Indeed, as noted IRIN, Ugandans are “…tired of war, most people want the rebels forgiven”. According to them, maintaining a tough stance against the rebels and fighting them has only prolonged their suffering. “We are in a mood of forgiveness. Let the International Criminal Court not spoil our party preparations”, some Ugandans have said.[27]

The ICC’s aim to close “the gap of impunity” is felt by some Ugandan people to be a threat to the peace in Uganda. Some of them do not hesitate to criticize the presence of the ICC in the Uganda peace process. An internally displaced person, Nikson Owinyi, told Jan Egeland that “The international community should tell the ICC that the Acholi people don’t like ICC in these affairs because it is holding back the peace process.”[28]

Again Peter Onega, has claimed that the decision by the international court has left their work in “total confusion”. He stated further, that “the statute establishing the ICC overrides the national laws and the court may decide to issue other warrants of arrest for people they have even issued amnesty to. …..The warrant would scare away willing rebels and frustrate the commission’s effort to negotiate for ex-rebels return”, he added.[29]

Indeed, in a bid to bring about a cessation of violence, the UAC was set up to offer a blanket amnesty to militia and soldiers. It was hoped that this amnesty would encourage them to lay down their weapons without fear of reprisal. Then in October, 2005, the ICC issued warrants of arrest against five members of the LRA in Uganda and this move effectively undid the work of the UAC.[30]

But Luis Moreno Ocampo, the Chief Prosecutor for the ICC, made himself clear on this issue when he told IRIN, “Domestic amnesties are strictly a matter for national authorities and do not act as bar to an investigation by the ICC”. Thus, the message was that at a national level, amnesties may be granted, but they will not be guaranteed at an international level.[31]

The rejection of amnesty for perpetrators of human rights abuses on the basis that such amnesties are incompatible with the principle of international law has been steadily involving the whole world. The International Criminal Tribunal for the Former Yugoslavia observed in 1998 that amnesties covering certain crimes’ “would not be accorded international legal recognition” despite having legal force in that country. Spanish and French courts have also lent their backing to this interpretation, and the inter-American court of Human Rights in 2001 stated “All amnesty provisions are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations, which are non-derogable rights recognized by international human rights law.”[32]

The UN holds the understanding that the amnesty provisions of the agreement shall not apply to the “international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”[33]

Indeed, the amnesty issue facing the ICC in the Ugandan peace process is an opportunity for the international justice system to show the international community as a whole that the impunity gap is closed.

Far from spoiling the peace process in Uganda, the ICC could boost it. Its deterrent effect is one of the main explanations for the sudden willingness for the LRA leaders to negotiate. They no longer have anywhere to hide. They have lost support - the southern Sudan is no longer a threat for the government of Khartoum, and they are wanted in DRC by the MONUC, the UN mission in DRC after killing eight Guatemalan peacekeepers in Eastern DRC.[34]

Often, people like Kony and other LRA leaders need to be backed against the wall before one can expect any agreement from them for a negotiated solution. Mobutu, the DRC former president accepted negotiations with Laurant Desiré Kabila, the other former DRC President, (then rebel leader) when almost ¾ of the country was controlled by the rebel group in 1997 . ‘The rebels Lords Resistance Army has called for the resumption of peace talks with the Ugandan government’ noted IRIN.[35]

As noted by the Citizens for Global solutions (CGS), Kony is exactly the type of person for whom the ICC was created. [36] Therefore, the blanket amnesty through a peace agreement becomes the last chance for a way out.

The implications of the Ugandan peace process in the Ituri District

As has been said before, DRC is affected by a deadly war which has resulted in over three million deaths and widespread displacement. The killing and other atrocities committed against the population by the national army, foreigners armies, rebel groups, and militias raises the issue of accountability of the perpetrators and reparation for the victims.

But in the DRC, the national judicial system is in collapse. According to Human Rights Watch, the DRC’s national justice system is in a state of disarray. It will likely take years to establish a functioning, independent, impartial and fair judiciary.[37] And the Commission Vérité Reconciliation (CVR) - the Congolese truth commission - established by the Pretoria Agreement with the mandate to address reparation has failed to do its work.[38]

Therefore, the ICC becomes the alternative for the thousands of victims wanting to see justice done by holding their perpetrator accountable and getting reparations owed to them.

Among the most affected by the war is the population of Ituri District in northeast DRC bordering with Uganda. This population expects prosecution of the likes of Combra Matata, leader of the Ituri Patriotic Resistence Front (FRPI), one of the active militia groups and responsible for several atrocities including rape, burning houses and killing.[39]

The Ituri people also expect prosecution of Kawa Mandro of PUSIC, an Ituri militia [40], Peter Karim of Front des nationalistes et Integrationnistes (FNI) and Mathieu Ngudjolo of Mouvement des Révolutionnaires Congolais (MRC) [41]. Already there is a concern among the population in Ituri after the government appointed two ex-militia leaders, Peter Karim (FNI) and Mathieu Ngudjolo (MRC) as colonels in the national army [42], in the name of peace.[43]

But for the victims of war in the DRC, especially in Ituri, ‘peace’ means positive peace, one in which justice is addressed, human rights are respected and people live without any fear (as opposed to a negative peace such as a ceasefire, which is negative because it stops the war but does not address other issues). [44] And this ‘peace’ has to be based on the concept of justice. There is no peace without justice. But this justice has to be taken into the transitional justice perspective.[45]

Indeed, transitional justice offers a deeper, richer and broader vision which seeks to confront perpetrators, address the need of victims and assists in the start of a process of reconciliation and transformation.[46] Therefore, the Uganda peace process is very important for the people of that country.

The ongoing peace process in Uganda is being followed with interest by both the victims and perpetrators in Ituri District. The success or failure of the ICC in the LRA leaders case will have many implications. Successful prosecution will create an expectation for several victims of similar atrocities in Ituri to see their own perpetrators held accountable for their crimes and to expect reparations. It will produce a deterrent effect to other militias who are still active in the same area. [47] Indeed, the arrest of Thomas Lubanga, one of the militia leaders in Ituri by the ICC in April this year produced a strong deterrent effect. “Many here in the East are afraid the court will come…we all now are thinking twice . We do not what this court can and will do”, confessed Xavier Ciribanya, former rebel leader of the RCD-goma and suspected of a range of crimes against civilians in both Kivus and Ituri.[48] Therefore, the ICC remains key in ending the violence and the last hope for the victims to see their perpetrators prosecuted, and to receive reparation after the complete failure of the CVR to address the issue. [49]

But, on other hand, failure will encourage the culture of impunity in Ituri District.

Indeed, the three conditions raised in the Ugandan peace process can be used by the different perpetrators in Ituri: firstly the Mato Oput option will gives people like Combra Matata who still has weapons the opportunity to escape a real trial. Secondly, the withdrawal of the warrants of arrest will give future perpetrators the chance to claim the Ugandan ICC case as jurisprudence. Finally, the blanket amnesty will be an opportunity for those prosecutable in Ituri District to extend the content of the law adopted by the DRC National Assembly which gives the CVR the power to propose amnesty for acts of war, political crimes and crimes of opinion.[50]

Conclusion

The ongoing peace process in Uganda is critical for the Ugandan people. This peace process can finally end the 19 year long deadly war which deeply affected the northern Ugandan people. But at the same time, the peace process in Uganda is critical for the ICC which faces its first test as the symbol to impunity. Furthermore the Ugandan peace process has implications for the Ituri District.

As a symbol for the ending of impunity or the closing of the impunity gap, the ICC has to stand behind its warrants of arrests. Justice has to be done. Not only for the victims in northern Uganda, but for others, including the Ituri.

The ICC is established not only for Uganda and its future will depend on what decision it takes today in order to secure tomorrow in its fight against the impunity. ‘Justice for today’s crimes supplies the legal foundation needed to deter tomorrow’s atrocities. Without justice, there is no peace’.[51]

• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Consultant; Assistant lecturer in the College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected];[email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] Lijun Yang, “On the Principle of Complementarity in the Rome Statute of the International Criminal Court”,Chinese Journal of International Law (2005),vol 4,Nº1 (accessed 11October 2006)
[2] Rome Statute, (accessed]http://www.sierra-leone.org/lomeaccord.html>(accessed 23 Octoberd 2006)
[22] Alex Boraine, “A COUNTRY UNMASKED”, Oxford University Press,2000,pp270.
[23] BBC News “Afrca’s mixed amnesty
[24] BBC News,op.cit
[25] IRIN.op.cit.
[26] IRIN.op.cit
[27] News.op.cit
[28] IRIN,op.cit
[29] Joseph Yav Katshung, op.cit
[30] IRIN,op.cit
[31] ibid
[32] ibid
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] William W.Burke-White, “International Criminal Court, Complementarity in practice:The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo”,Leiden Journal of international Law 18( 2005),pp576
[38] William W.Burke-White,op.cit
[39] IRIN : “DRC: Recently Demobilised militiamen re-arming in volatile Ituri Distict” (accessed 20 September 2006)
[40] Radio Okapi, “George Bush ordonne le blocage des avoirs des seigneurs de guerre de la RD Congo” ,(accessed 1November 2006)
[41] The DRC Defence Minister has publicly stated that the government is determined to work with the ICC to help bring war criminal to book ,after appointing the two ex-mititia, colonel in national army, in IRIN,DRC:Two militia leaders appointed army colonels,(accessed,13 October 2006)
[42] IRIN,op.cit
[43] Dieu-Donné Wedi Djamba,“Congo-Kinshasa:A strategy for Peace And Reconciliation in the DRC?”,in Pambazuka News. http://allafrica.com/stories/200610260875.html >( accessed 26 October 2006)
[44] Professor Jannie Malan used the terms “negative and positive peace” during the course session for the fellowship in Transitional Justice(2006) in Cape town/South Africa
[45] Dieu-Donné Wedi Djamba,op.cit,
[46] Alex Boraine, in: Alex Boraine and Sue Valentine, op.cit,pp25
[47] Alert.net, “More than three million Congolese dead and no one notice,say Is IRC”(accessed 2November 2006)
[48] William W. Burke-White,op.cit.pp588
[49] William W.Burke-White ,op.cit
[50] William W.Burke-White,op.cit
[51] Kathryn Schiele “U.S RATIFICATION OF THE INTERNATIONAL CRIMINAL COURT”,in Journal of International Relations, James Madison University, Spring 2004,pp59

The proposition of a traditional form of justice, Mato Oput, as an alternative to the International Criminal Court (ICC) for the Ugandan peace process, raises many questions. Dieu-Donné WEDI DJAMBA points out that the use of Mato Oput, the withdrawal of ICC warrants of arrest against the LRA leaders, and the granting of a blanket amnesty to the LRA leaders have been raised as the conditions for peace in Uganda, yet are posing a threat to the existence of this and even the ICC, whose philosophy is: “There is no justification for worse crimes.” This article is the first part of a two-part series.

The international community is very interested in the ongoing peace process in Uganda between the Ugandan government and the Lord’s Resistance Army, (LRA), a rebel group active in northern Uganda for the past 19 years.

This process started in July 2006 in Northern Uganda and Juba in Southern Sudan. One of the key countries observing the peace process is the Democratic Republic of Congo (DRC).

Having many events in common with Uganda in the past, there are many factors linking the DRC to the ongoing Ugandan peace process, such as the shared Northeastern border between the DRC and Uganda. The LRA has one of its camps in the Karamba forest in Ituri District, northeast DRC, and many Ituri militia groups who have been involved in many human rights violations and other atrocities are still active there, with links with Uganda.

The end of the civil war in Uganda will be beneficial for the DRC as it will end any justification for the Ugandan government to violate the DRC border under the pretence of fighting the LRA rebellion. In particular, the end of the war will impact positively on the Ituri District, which has been deeply affected by the militia groups connected with Uganda.

The DRC is just emerging from a protracted war involving Angola, Zimbabwe, Namibia, Uganda, Rwanda, Chad, during which over three million people were killed, thousands displaced, thousands still becoming refugees, many atrocities committed, and the HIV/AIDS rate increased. Many issues are outstanding, not least the accountability of the perpetrators and the issue of reparation for the victims of those atrocities.

However, the proposition of a traditional form of justice, Mato Oput [1], as an alternative to the International Criminal Court (ICC) trial, the dropping off of the warrant of arrest against the LRA leaders, the blanket amnesty promised to the LRA leaders by the Ugandan government in exchange for a peace agreement despite the warrant of arrest from the ICC pending upon them, are areas of concern for the DRC. Any outcome on these three issues in Uganda - signatory to the Rome Statute as the DRC - will have implications for the DRC, and the Ituri District.

What impact can the Ugandan peace process have in Ituri (DRC) in the perspective of transitional justice? What other issues does the Ugandan peace process raise? These are the questions I will try to respond to through this paper.

The peace process in Uganda.

The current peace process in Uganda between the Ugandan government and the LRA began in July 2006. The peace talks are taking place in Juba in Southern Sudan and led by Dr Riek Machar, the Vice President of Southern Sudan. [2]

The LRA is a rebel group led by Joseph Kony, that has fought in northern Uganda for the past 19 years. Born in the early 1960’s in Odek, a village East of Gulu, Kony is thought to be the cousin of Alice Lakwena who founded the Holy Spirit Movement in 1986. This group represented the Acholi people in northern Uganda who felt excluded from power after the overthrow of the northern leader Milton Obote by Museveni. Lakwena promised her followers immunity from the bullets of the Ugandan army, but Museveni troops defeated her movement in 1988 and she fled to Kenya. After this defeat, Kony founded his own group which has operated through the abduction of thousands of children to become fighters or sex slaves. Kony himself is thought to have at least 60 wives as he and his senior commanders take the pick of the girls they capture. [3]

According to IRIN [4], nineteen years of the conflict has condemned some two million people in northern Uganda to live in appalling conditions in huge camps within their home districts. Thousands have died during this conflict. The Kony rebel group initially claimed to be fighting to topple a government that has “marginalized” the people of the region but they quickly turned against the same people when support was not forthcoming. [5]

Indeed, Kony appears to believe that his role is to cleanse the Acholi people. He uses biblical references to explain why it is necessary to kill his own people since they - in his view - failed to support his cause. “If the Acholi don’t support us, they must be finished”, he told one abducted person.[6]

Death was not the only one punishment that Kony has afflicted on his people. Mutilation, rape, abduction, slavery and burning of houses were also among the arsenal of weapons he employed against his people. [7]

As a leader, Kony sees himself as a spirit medium and he has created an aura of fear and mysticism around himself, thus his rebels follow strict rules and rituals.[8] His LRA movement demands that Uganda be ruled according to the biblical Ten Commandments. IRIN [9] has observed that over the past 19 years, Kony and his rebel group have not controlled any territory and have rarely tried to control strategic government assets. This made fighting and arresting perpetrators a nightmare for the government until the government petitioned the ICC in The Hague to investigate and indict rebel leaders for their crimes against humanity.[10] The ICC responded and last year issued warrants of arrest for five rebel leaders: Joseph Kony, Vince Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen.[11]

However, since these warrants were issued, peace talks between the LRA and Ugandan government began. A major breakthrough was made when the parties signed a ‘cessation of hostilities agreement’ whereby the LRA agreed to assemble within three weeks at designated points. Rebels in Uganda and Sudan were to go to Owiny-Ki-Bulm in Eastern Equatoria, and rebels in Congo to Ri-Kwangban in Western Equatoria.[12] The rebels would be protected by the Southern Sudanese and the Ugandan government undertook not to attack them. [13]

But the mediators who tried to broker negotiations in the war were not amused as they felt that the justice being sought by the ICC was not the immediate requirement, but a luxury that could be put aside for a while until peace was achieved. [14]

The Ugandan peace process versus the I CC

Very often, when a country wishes to move from war to peace, the search for justice may include trials in an national or international court of law as well as other non-punitive approaches. In recent years there has been a growing demand around the world for transitional mechanisms, such as truth commissions.[15] Juan E. Mendez argues that because accountability problems occur within a broad range of contexts, accountability for past abuses must be considered not only in transitions to democracy, but in seeking solutions to armed conflicts as well. [16]

However, after the ICC issued warrants of arrest against the LRA leaders, some analysts expressed concerns that these warrants effectively ended the peace efforts led by former Uganda minister Betty Bigombe. Once officially charged by the ICC with crimes against humanity, the LRA commanders cannot receive amnesty as part of any political settlement of the conflict. Bigombe herself complained that the court had “rushed too much” as a result of which “there is now no hope of getting (the LRA commanders) to surrender’’. The Roman Catholic Church, which had also helped facilitate the mediation effort, expressed fears too that a political settlement has now been made more difficult. [17]

On the other hand, Juan E. Mendez argues that the ICC warrants of arrest arehelpful for the Ugandan peace process. He told IRIN that, “when you have spoilers like the five people who have been indicted who are really not interested in peace, at some point it is important to remove them from the negotiating table so you can bargain with people who are more interested in peace. This removal, by the fact they are now under indictment, may initially be seen as an obstacle to peace, but farther down the road it may be exactly what is need to get a stable peace in northern Uganda”. [18]

History confirms the validity of Mendez’ argument. The indictment of Charles Taylor [19] was beneficial for the peace process in Liberia, and the death of Dr Jonas Savimbi [20], the ex-UNITA rebel leader, allowed the Angola government to embark on a successful peace process with another UNITA leader.

The road towards peace is sometimes very surprising indeed. A further more complicated proposal is that made by some Ugandans of using ‘Mato Oput’, the traditional form of justice, as an alternative to the ICC processes.

Still others are asking for the ICC warrants of arrest to be withdrawn and there are also those who believe the Ugandan Amnesty Commission (UAC) is good enough to deal with the case.

Thus, the three issues posited as the conditions for peace - the use of Mato Oput, the withdrawal of arrest warrants issued against LRA leaders, and the granting of a blanket amnesty to the LRA leaders, - are becoming a threat to the existence even of the ICC for which the philosophy is: “There is no justification for worse crimes.” [21]

Mato Oput

In reference to the principle of complementarity in the preamble of the ICC, which states that “The International Criminal Court shall be complementary to national criminal court jurisdiction” [22], some observers in Uganda are suggesting that the traditional Mato Oput process of reconciliation be implemented in order to deal with Kony and his commanders. [23]

To confirm this trend, one of the elders in the Internally Displaced People’s (IDPs) camp at Opit, Gulu, in northern Uganda said, “the amount of death in Acholi should not be equated to the pursuing of five LRA commanders’. The elder added that “the Acholi people have a system that is capable of delivering justice in region” [24], referring here to Mato Oput.

Indeed, in Acholi, Mato Oput means drinking the herb of the Oput tree, [25] a blinding-bitter tree [26]. The reconciliation process is called Mato Oput because it ends in a significant ceremony of reconciling the parties in conflict. Barney Afako, a Ugandan Human rights lawyer and consultant to the Amnesty Commission, argues that among the Acholi “many offenses including homicides” were traditionally resolved by reconciliation. [27] If one kills a person, the clan of the killer approaches the clan of victim for reconciliatory justice. [28]

Mato Oput is not a happy ceremony. The moods of all present express the seriousness of the occasion. The process involves the guilty acknowledging responsibility, repenting, asking for forgiveness, paying compensation and being reconciled with the victim’s family through sharing the bitter drink -Mato Oput. [29] The victim’s clan must accept the plea for forgiveness for the reconciliation to be complete. [30]

Mato Oput is to be distinguished from other ceremonies, particularly the nyono tong gweno (stepping of the egg) ceremony which is a cleansing ritual that has been adapted for the reintegration of returnees. The latter is not a reconciliation ceremony that involves any measure of accountability or admission of guilt. [31]

The accountability issue that Mato Oput addresses raises a couple of questions such as will Mato Oput apply to types of crimes such as mutilation, burning of houses, abduction, use of children soldiers and slavery, which are crimes against humanity? These are the crimes for which Kony and his senior commanders are wanted by the ICC. Similarly, will Mato Oput be a suitable alternative mechanism to the ICC? Can LRA leaders can be tried by Mato Oput after the ICC already issued warrants of arrest for them, since there is no provision allowing the ICC to drop this case?

From the above arguments, Mato Oput can be described as conciliatory justice dealing with less serious crimesresponsibility. [32]

The gross violations of human rights, such as abduction, slavery, children, and mass killing are out of its jurisdiction as is confirmed by George Omona from Koc Goma in southwestern Gulu. Omona states that “the Mato Oput did not envisage monstrous crimes against a community, like killing of hundreds of people by Kony rebels”. [33] Therefore, Mato Oput will not be appropriate way to deal with Kony and his senior commanders.

Furthermore, to be suitable as an alternative mechanism to the ICC, Mato Oput has to comply with international law standards. Indeed, Joseph Yav Katshung argues that there is a need to ‘test if this Mato Oput mechanism implies good faith. Is this effort designed to generate more truth, more justice, reparation, and genuine institutional reform? If so, it is welcome. If the objective is to evade the state and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield certain perpetrators (Kony and others). In this hypothesis, the process will violate international law and will not be in the interest of justice and society as whole.” [34]

Indeed, Alex Boraine argues that the rule of law is fundamental to the existence of a free society. It separates us from anarchy. He adds that legal prosecutions have at least three additional advantages: firstly, prosecutions in most case prevent high-ranking perpetrators from returning to positions of authority; secondly, tribunals and special courts aim to punish those who bear the greatest responsibility for human rights violations and thus assist in breaking the cycle of collective reprisals; thirdly, due process avoids summary justice.[35] Charles Villa Vincencio [36] argues that organized systems of justice based on international standards of human rights include the entrenchment of the right of all persons to a legal defense and access to courts that administer the law in an even-handed and efficient manner - even in the face of the most hideous gross violations of human rights and ruthless manifestations of crime.

However, Mato Oput as a court raises similar concerns to those expressed about the Gacaca community courts established on 30 August 1996 by the Rwandese authority in order to deal with the alleged genocidaires.[37] These concerns relate to expertise and competence. The elders in charge of Mato Oput would be expected to understand complex legal issues without the benefit of legal training or legal arguments, and they would be expected to distinguish between genuine and false testimonies. They would have to deal with the problem of evidence and witness statements despite their lack of expertise in legal matters. They would be expected to hand down heavy sentences, including life imprisonment. In addition Mato Oput would be expected to set a framework for prosecuting and sentencing people suspected of having committed crimes against humanity. If Mato Oput could not provide for fair trials, reparations, appeals, witness and victim protection and for theaccused to be allowed to be represented by defence counsel, this system would not conform to international standards of fairness. [38]

Indeed, the Dakar Declaration adopted in September 1999, following the seminar on the Right to Fair Trial in Africa organized by the Africa Commission on Human and People’s Rights stated clearly that ‘it is recognized that traditional courts are capable of playing a role in the achievement of peaceful societies and exercise authority over a significant proportion of African countries. Traditional courts are not exempted from the provisions of the African Charter relating to fair trial. [39] And Mato Oput is not an exception to this statement.

• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Consultant; Assistant lecturer in the College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected];[email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] Birgit brock-Utne, “Indigenous conflict resolution in Africa”, University of Oslo, >( accessed 9 September 2006)
[8] BCC New.ibid
[9] BBC news.op.cit
[10] IRIN.op.cit
[11] ICC, “Situation and Cases: Uganda”, 9(accessed 8 September 2006).
[12] BBC News.op.cit.
[13] International Crisis Group; “Peace in northern Uganda?”, Africa Briefing Nº
[14] Naibi/Brussel,13October 2006, BBC News/Africa/Ugandan rebels assemble in sudan.(accessed 11October 2006).
[15] Joseph Yav Katshung,“Justice At A Glance In Uganda:Mato Oput versus ICC”, African Security Analysis Programme,ISS Pretoria .(acessed 15 September 2006 )
[16] Juan E.Mandez, ‘Accountability for Past Abuses’ in HUMAN RIGHTS QUARTERLY,Vol.19(1997),.pp256
[17] Marlise Simmons, “Court in The Hague issues Arrest Warrant for Uganda Rebels”,in the News york Times(accessed 14 october 2006
[18] IRIN.op.cit.
[19] HUMAN RIGHTS NEWS: “West Africa:Taylor adictment avances justice” ,accessed]http://www.infoplease.com/ipa/A0901288.html>,accessed 25 October)
[21] News .(accessed 9 September 2006)
[22] Rome Statute.

Dieu–Donné Wedi Djamba considers the options of bringing lasting peace to the Democratic Republic of Congo (DRC). He argues against the appointment to a high government position of the two militia leaders who committed atrocities during the civil war. He points out that such a move will not either bring unity nor peace in the DRC.

Reverend Bongani Finca argues that when states are drowning in conflict and there is a general breakdown of the rule of law, gross abuse of human rights occurs with a resultant loss of human life and other acts of injustice. [1]

Tina Rosenberg, the Pulitzer Prize winner, writes that “A country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the national political culture and history, the conditions necessary for dictatorship to occur, the abruptness of the transition, and the new democratic government power and resources”. [2]

It is against this background that the political situation in the Democratic Republic of Congo (DRC) ought to be assessed. The DRC has just come out of a civil war that is reported to have killed more than three million people. That war left thousands of people displaced, and despicable atrocities were committed. However, a peace agreement was signed, in 2002, between the government, the rebels groups (MLC and RCD), the militia group (Mai Mai), civil society and the political opposition.

At the end of this transitional period, which started in July 2003 with the formula 1+4 (one President with four vice-presidents), Congolese people are focused on the second round of the presidential election which will see the incumbent Joseph Kabila opposing his challenger Jean-Pierre Bemba, and the provincial and local elections which will take place on the 29 October.

But while all the attention is focused on the elections, one of the decisions taken on 2 October 2006 by the transitional government in the name of the peace process threatens to undermine future justice in term of accountability for those responsible for grave human rights violations.

Indeed, in the name of peace, two Ituri ex-militia leaders, Peter Karim of Front des nationalistes et intégrationnistes (FNI) and Mathieu Ngudjolo of Mouvement des révolutionnaires congolais (MRC), both accused of killing, rape, and using child soldiers, have been appointed as colonels in the national army.

But the Peter Karim and Mathieu Ngudjolo cases are not the only ones in this regard. Several similar cases are to be counted. Indeed, last year four ex-militia leaders were appointed generals in the national army, as IRIN noticed. [3]

Are all these appointments helpful for peace and reconciliation in the DRC? Through this paper, I will analyze the consequences of these cases in terms of accountability for those responsible for grave human rights violations.

Accountability for those responsible of grave human rights violations.

The ICTJ recommended that the government stop appointing the ex-commander militia ‘suspected of participation in massacres and other war crimes’ to the national army and instead to prosecute them. [4]

To add his voice to this issue, Juan Mendez, the President of the International Center For Transitional Justice (ICTJ) and United Nations (UN) Secretary General special counsel, declared that if the DRC wants a lasting peace, the country should not appoint individuals into the army when there is irrefutable evidence that those individuals have committed grave atrocities. [5]

But in the case of the last appointment, Adolph Onusumba, the Congolese Defense Minister argues that the objective of these nominations is the pursuit of peace. [6] The term of peace has a broad meaning, but in the context of a post-conflict situation such as the DRC, the term peace raises a couple of questions:

What is peace? Does that mean peace for the woman who was raped? Does it mean peace for the man who saw his wife and/or daughter being raped? Where is peace for those who witnessed their families being slaughtered and their houses burnt to the ground?

For the victims of war in the DRC, ‘peace’ means positive peace, one in which justice is addressed, human rights are respected and people live without any fear (as opposed to a negative peace such as a ceasefire, which is negative because it stops the war but does not address other issues) [7]. And this ‘peace’ has to be based on the concept of justice. There is no peace without justice. But this justice has to be taken into the transitional justice perspective .

Describing transitional justice, Alex Boraine, chairperson of the ICTJ and former deputy chairperson of the South African Truth and Reconciliation Commission (TRC) said: “…transitional justice offers a deeper, richer and broader vision of justice which seeks to confront perpetrators, address the needs of victims and assists in the start of a process of reconciliation and transformation.” [8]

Responding to the appointment of the two militia leaders, Joel Bisubu, deputy director of Justice-Plus, a Bunia-based human rights group, said that people who kill and massacre Congolese should not be rewarded with high positions. [9]

The Defense Minister argued that the recent appointment of the two militia leaders was made by the government as a strategy to pacify the troubled northern-east district of Ituri. [10]

If all these appointments are a strategy for the government to lure all these militia out of the bush, then it is welcomed. However, that does not mean that those who committed atrocities during the war should not be held accountable. In this regard, the Defense Minister has publicly stated that the government is determined to work with the International Criminal Court to help bring war criminals to book. [11]

If the objective, however, is to protect war criminals from facing the law, then this strategy has to be condemned. It will send the wrong message to the victims of the war. It will further undermine any reconciliation between victims and their perpetrators, for the victims will feel betrayed by the government.

Joseph Yav Katshung argues that accountability for human rights violations is an important instrument in breaking the cycle of violence and impunity and is an indispensable component of the process of healing the wounds. [12]

Reconciliation can begin when the need for reparation is acknowledged and acted upon. The response by former victims to these initiatives can increase the potential for greater stability and increase the chances for sustainable peace. [13]

Conclusion

The DRC is making herself ready for 29 October and the second round of presidential elections and local elections.

But this challenge is not the only one she faces. Among those challenges are the restoration of peace and reconciliation after the war, which is reported to have killed more than three million people and increased HIV/AIDS infections.

The aim of this paper was to attempt to explore the challenge facing the DRC of how a post-conflict government reconciles an ethnically divided country. Further, I have attempted to show that appointing militia leaders who committed atrocities during the civil war to high governmental offices will not bring unity, peace and reconciliation in the DRC.

• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Assistant lecturer in the College of Law in Lubumbashi/DRC; Human Rights Activist; Writer; Currently fellow in Fellowship Programme in Transitional Justice co-organized by the International Centre for Transitional Justice (ICTJ) and the Institute for Justice and Reconciliation (IJR) in collaboration with the University of Cape Town(UCT) in Cape Town, South Africa. Tel:+243812485222 ; +27738362921 ; +27216862044 Email: [email][email protected] or [email][email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org/

References

[1] Bongani Finca, ‘They treat the wounds of my people cheaply’, in transitional justice and human Security, (2006) pp56
[2] Tina Rosenberg ‘After word: Confronting the Painful Past’, in :Martin Meredith, coming to Terms: South Africa’s Search for Truth,1999,pp330
[3] IRIN:News:’Great Lakes: Le CITJ exige de poursuites judiciaries contre les ex-chefs de milice en RDC’,pp2
,Accessed 10-1-2006
[4] IRIN,op.cit.pp1
[5] IRIN,op cit pp 2
[6] IRIN,DRC:Two miltia leaders appointed army colonels,pp1 ,Accessed,2006-10-13
[7] Professor Jannie Malan used the terms “negative and positive peace” during the course session for the fellowship in Transitional Justice(2006) in Cape town/South Africa.
[8] Alex Boraine, ‘Definiting Transitional Justice:Tolerance in the search for justice and peace’, in transitional justice and human Security,(20006),pp22
[9] IRIN,op.cit pp1
[10] IRIN, ibid. pp1
[11] IRIN,op.cit.pp1
[12] Joseph Yav Katshung,’DRC:Healing the wounds of war through reparations’, in Pambazuka, pp1 ,Accessed,2006-08-26
[13] Alex Boraine,op.cit.pp30-31.

Urgent Action Fund-Africa was established in Kenya in August 2001. The basic aim: to support the work of women in Africa through rapid response grantmaking and unique initiatives that support women’s leadership in peace-building and justice processes. UAF-Africa thus aims to provide women with the resources required to respond effectively in conflict situations. Will it be possible to build a philanthropic base in Africa to support these activities, Caroline Hartnell, editor of Alliance, asked Betty Murungi, Director of Urgent Action Fund-Africa. And where is support most likely to come from?

CH: Why was the decision made to set up Urgent Action Fund-Africa? And what does it hope to achieve?

BM: Urgent Action Fund (UAF) was established in 1997 by three women’s rights activists who were strongly committed to the idea of making small grants to enable women activists to respond effectively in unanticipated situations. UAF priorities include conflict areas and situations of escalating violence. With many armed conflicts currently raging in Africa, UAF-Africa was established in 2001 to enable UAF to respond better to the needs of African women in conflict situations. UAF is an activists’ fund run by an activists’ board, some of whom live in conflict countries.

The basic aim of UAF-Africa is to promote the human rights of women and girls by making grants to activists. Our three thematic areas are peace-building and transitional justice; promoting understanding of regional instruments for the advancement of women’s rights; and rapid response grantmaking. But UAF’s core programme globally is rapid response grantmaking. Here the three categories of grant are situations of armed conflict; precedent-setting legislative or legal action, and protection of women human rights defenders.

CH: These rapid response grants – what are they and what are they for?

BM: Rapid response grants are basically grants that don’t take nine months to make. When the women who founded UAF sat around a table in early 1997, they realized that the biggest gap in funding for women human rights activists related to the lack of readily available small grants to enable them to take advantage of unexpected opportunities that may advance the rights of women or respond to unanticipated situations that threaten to undermine such rights. The actions that UAF rapid response grants support are often very strategic in their effect and reach.

This lack of funding is certainly a problem for activists in Africa. You make an application for a grant and it’s reviewed by a board which reviews applications perhaps twice a year. But in situations of conflict, you cannot wait for the twice-yearly review board to meet. So the UAF board came up with the idea of the rapid response grant, which would enable them to make money available very quickly, within a week in fact. And we are very proud to be able to say that we respond to requests within 72 hours. The board works very quickly, consulting each other by email and phone. A decision is communicated to the group or activist within a week.

Consider our protection grants for women human rights defenders. If somebody’s life is in danger, waiting six months is obviously not going to be any good. The same is true of our precedent-setting legal action grants. If you’re going to file a legal action, you’re taking advantage of an unanticipated opportunity that has presented itself. You need a decision quickly otherwise the opportunity passes.

That is what rapid response grantmaking is all about. Our grants are quite high risk but we are aware that you have to take risks in this kind of grantmaking.

CH: Does this level of urgency apply to all your grantmaking?

BM: No. At UAF-Africa we have other programmes where the grantmaking supports more the ‘strategic’ intervention where the time urgency is not necessarily so great.

Take our peace-building and transitional justice programme – an area that is unique to UAF-Africa. This is based on our strong belief that women should be able to participate freely in all aspects of conflict transformation and post-conflict reconstruction. You hear a lot about the need for women to be in parliament, but women also need to be in the places where peace is being negotiated – which are often also where the political arrangements are negotiated that determine how women are going to be placed in emerging societies. We feel it’s really important for women activists to be able to be present at these events. But a grant in this area won’t necessarily have to be made in a matter of a week.

CH: Going back to the issue of risk, what do you mean when you say your grantmaking is quite high risk? Are you referring to the risk that the grant will be misused, or that it won’t do any good in the end?

BM: The high risk is directly related to the rapidity with which grants are made. We do due diligence like every other grantmaker, but we don’t have six months to examine every detail of a proposal.

We also consider the grants to be high risk because they are sometimes made to unknown entities – UAF doesn’t often fund large, well-established, well-known groups that have sizeable international funding already. The good things that happen in our communities often happen because women who are not known are doing the work. When you’re making grants to unknown entities, you obviously run the risk that your grant is not going to do what was set out in the grant proposal.

However, even with some of the more known groups that we make grants to, we normally like to have two endorsements. We rely heavily on our network of advisers all over the world for these endorsements. We also try to go on outreach missions ourselves as much as possible, to enable us to meet the people who are working on the ground. But of course you can never get to all of them, so to a certain extent you do run a risk.

CH: Do you make grants to individuals, or is it always to a group, however unknown?

BM: Yes, we do make grants to individuals. These are usually protection grants to women human rights defenders, and these grants are always confidential. If you are making a protection grant to an individual, you don’t want to broadcast it to the whole world and so put the life of the activist in danger. But this applies only to the protection grants to individuals.

CH: In practice, have you had many bad experiences or does this high risk grantmaking on the whole work?

BM: In seven years of making grants – and this is globally because UAF-Africa started making grants only in May last year – I think we have had one, at most two, experiences where evaluation has shown that perhaps the money has not been applied for the reasons for which it was requested. What we have done to try to deal with these situations is to come up with a really good evaluation system. From our grantee reports, it is clear that the money so far has gone to really deserving cases and causes.

CH: Can I move on to the funding and where it’s going to come from? I assume at the moment it’s going to be coming from UAF in the US, but are you also starting to fundraise in Africa?

BM: We started fundraising in Africa even before the independent office was established in 2001. UAF and UAF-Africa are one organization with one board of directors, so this has been joint fundraising. But because UAF-Africa has additional programmes, we have been fundraising from here in Kenya too.

So, for example, we have received a lot of support from the Ford Foundation’s East Africa Office since 2000, and since 2003 we have received support from the Ford Foundation’s Special Initiative for Africa, now Trust Africa, which has supported our work around transitional justice and regional instruments for advancing women’s rights. We have also received support from, among others, HIVOS, OSI and Cordaid; from the UK Department for International Development, and from the Dutch Government, which is very interested in peace-keeping in the Great Lakes Region.

But we haven’t received any money from African governments yet. Perhaps we should approach some of them, perhaps the South African government or the Nigerian government. These are rich African governments that should support our work.

CH: What about individual donors? And what about individuals in Africa?

BM: Yes, we do receive funds from individuals, mainly in the US, some of whom support the work of UAF-Africa. Individuals were very instrumental in supporting the work of UAF at the beginning. We receive support from some smaller family foundations as well as faith-based funders.

We have established a fundraising programme here in Kenya. Right now, we’re interested in funding work to address issues of conflict, and I’ve decided that we must target individuals. And not just individuals – we’re also interested in getting support from corporations working in the region.

One of our fundraising strategies has been to set up donor circles. Our first donor circle is meeting to discuss ways of supporting programmes in Kenya that reduce violence against girls – members want to make sure that the funds they donate to UAF-Africa are used within East Africa.

CH: What about raising money from corporations?

BM: Raising money from multinational corporations working here and from African-owned businesses is work in progress at the moment. We are concerned not to raise funds from businesses that themselves abuse the rights of women and girls in their employment practices or otherwise, so this is something that will need a little more thought.

CH: In the long run, do you feel there are sufficient resources in Africa to support the kind of grantmaking you want to do?

BM: I am completely confident that there are enough resources here. We just have to do a bit more work to set out what we’re doing and why it is so important. I think people on this side of the world have seen the kind of damage that conflicts do to communities, so yes, I think this is going to be successful. We have received small amounts of money and volunteer time from some individuals in Kenya as well as from the donor circle.

CH: Going back to the donor circle, does it on the whole consist of very wealthy people? And are they women only or women and men?

BM: Well, our first donor circle is actually made up entirely of men! Women have been giving of their time and money without being in a donor circle – we have a lot of women volunteers – and a lot of the in-kind donations that we receive are from women, but this first donor circle consists of men. They are not extremely wealthy; they’re just well-off, middle-class men, mainly professional people, and they’ve decided to conduct the meetings and run the group themselves.

Eventually we hope to create other donor circles, perhaps with young feminists as well. UAF has been receiving support for a couple of years from a group of high-school girls, which is really inspiring. These are the kinds of things that we want to build on and encourage in this country and see where it goes.

CH: What do you see as the main barriers to raising funds in Africa?

BM: One thing you must understand is that Africans have a very philanthropic nature. We in this country have always given money to educate children, finance weddings, pay hospital and funeral bills, build schools and hospitals. It has been very informal but it’s not something that is new or alien. In Kenya, this philanthropy was abused by state interference and corruption. So even in philanthropy we must uphold democratic practice and free will.

CH: But are there barriers to raising money for the particular work that you’re doing?

BM: Yes, one barrier is that even as we discuss philanthropy we have to take into account the economic injustices that exist in Africa. Social justice philanthropy addresses injustice and the causes of injustice – UAF specifically tries to address the injustices that women continue to suffer. If you want to raise funds to deal with that kind of issue, you have to increase the understanding of the society in which you want to raise the funds. We have to raise issues of cultural extremism, fundamentalism and patriarchy, and we have to be really sensitive in the way we deal with them. Some of these issues have now become global: the whole question around fundamentalism is not an African issue, it’s a global one. Cultural extremism is a global concern. Discrimination against women exists everywhere and there is sometimes a sense of fatigue when one raises these issues.

So there’s all this resistance. ‘OK, you want to raise money so you can give it away to advance the rights of women and girls. How come? Why now?’ So we have to do a lot of sharing of knowledge and working to create a sense of how important the work is. And that sharing of knowledge of course adds to whatever financial capital this philanthropy brings in because it is not just about the money, it’s about raising the understanding of the community in which you are working and breaking down barriers. This will eventually make it easier for us to activate the philanthropic nature of our community members.

The need to raise funds to reduce or prevent conflict is very easily understood by communities in which conflict has occurred, so fundraising for this is the really easy bit. But in countries where there hasn’t been open all-out war, there is a sense in which people want to bury their heads in the sand and not get into conflict prevention discussions. But they identify with general women rights protection.

CH: Sometimes you hear of organizations doing social justice grantmaking that try to play down what they’re doing when they’re fundraising so that it doesn’t sound too threatening to people. But that doesn’t sound like something you’d do?

BM: Oh no, we don’t do that at all. All our materials and brochures come out with examples of the most cutting edge grantmaking we’re doing. We’re not making any apologies for being activists ourselves, nor for being feminists, and we’re not shying away from the fact that we make grants to groups that are engaged in sexual rights work. For example, we recently made a grant to a group of commercial sex workers in Uganda for their advocacy for better treatment by the law. And it’s all out there in our materials. So we’re really up front about the work we’re doing. Women’s rights advocacy is often threatening, but so is the reality of dealing with legal discrimination, sexual violence during conflict, effects of patriarchy, bad governance and lack of democracy, which are what make the advocacy necessary in the first place.

CH: If you looked say five years ahead, where do you see your best prospect in Africa for fundraising? Companies? Individuals?

BM: I think that our best prospect is individuals. They are more likely to get sold on programmes for change because they have more to lose if things break down. We’re talking about corruption, war and destruction, poverty. We’re doing work around women. You speak to men about their daughters and all of a sudden they sit up and listen very carefully. So I think we have a great opportunity to raise funds from individual men. Of course I realize that we cannot at this time do without foundation funding and bilateral donors, but we must try and wean ourselves from this, diversify our funding base to include the local community.

As far as women are concerned, they have everything to gain by ensuring that laws and constitutions that do not discriminate against them are adopted in their various countries, and making sure the world roots out the kind of violence we have seen and continue to see every day. Just yesterday (16 March) 38 people were murdered, most of them young children and women, murdered as they slept in their homes in northern Kenya because of a boundary dispute. This is how conflict begins in this part of the world – battles over natural resources egged on by political interests. After the murders yesterday, some of our volunteers called me in the office and said, ‘What can we do? Can we go over there in teams and speak with the elders and community leaders?’ That’s the kind of interest they have in peace-building.

For me in five years I’m looking at a situation where Urgent Action Fund-Africa is being sustained by African individuals and African corporations who have realized it is about their own life, about their own continent, about every conflict in Africa.

CH: And do you see this support coming equally from men and women?

BM: Yes, I do. I have a feeling that women will do a lot more of the work, but they will also be able to mobilize resources. Men need to get a lot more information but there are very many concerned men here in Africa. Obviously they control more of the resources, so we are targeting them to make sure they give to these things that affect their daughters, wives and mothers.

BIOGRAPHY

Betty Kaari Murungi is a feminist lawyer with expertise in international human rights law. Since 1998, she has been a consultant and legal adviser to the women’s rights programme at Rights and Democracy on gender-related crimes at the International Criminal Tribunal for Rwanda. She currently serves as Director of Urgent Action Fund-Africa.

Betty Murungi serves on the Board of the Kenya Human Rights Commission and Women’s Initiatives for Gender Justice – formerly the Women's Caucus for Gender Justice – for the International Criminal Court. She is a member of the Kenya Bar and received the national honour of the Moran of the Order of the Burning Spear (MBS) in December 2003 for her work in human rights. She can be contacted at [email][email protected]

See www.urgentactionfund.org

* Please send comments to [email protected]

* This article was first published in the June 2005 issue of Alliance Magazine, which has a special feature on 'Funding Social Justice', for which Firoze Manji and Gary Craig are guest editors. To find out more, visit