African Transitional Justice Research Network Workshop

“Advocating Justice: Civil Society and Transitional Justice in Africa”

30–31 August 2010, Johannesburg, South Africa

Centring Women’s Rights in Transitional Justice Processes in Northern Uganda:

FIDA-Uganda’s Experience
Kihika Sarah Kasande

Abstract

Accountability for gender crimes remains a critical challenge for most post-conflict societies.1
The pervasive violations that women experience during armed conflicts are rarely integrated
into transitional justice processes, which entrenches existing inequalities and fosters a
culture of impunity for gender crimes.2 This paper highlights the advocacy strategies and
activities implemented by FIDA-Uganda to engender transitional justice mechanisms in
northern Uganda in order to end impunity for gender crimes.

Introduction

The 20-year war between the Lord’s Resistance Army (LRA) rebels and the government of
Uganda witnessed the most egregious human rights violations. There was massive
destruction of property and lives, forcing over 1,500,000 people, inclusive of women,
children, the disabled and the elderly, to live in internally displaced persons’ (IDP) camps.3
The LRA rebels established a pattern of “brutalization of civilians” by acts including murder,
abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of
camp settlements. Abducted civilians, including children, are said to have been forcibly
“recruited” as fighters, porters, and sex slaves to serve the LRA rebels and to contribute to
attacks against the Ugandan army and civilian communities.4

More than 200,000 girls and women were brutally raped, forced into sexual slavery in order
to provide relatively safe, cheap, and convenient sexual services to the fighters.5 Those who
remained in the IDP camps were subjected to domestic violence on a rampant scale.6
Additionally, women in the IDP camps were compelled to take on new roles like heading
households, with no social protection mechanisms in place.7

Following the end of the conflict, it remains to be seen whether transitional justice
mechanisms will effectively address the gender-based violations that occurred during
conflict. Accountability for gender crimes is a critical challenge for most post-conflict


Advocacy Manager, FIDA-Uganda. Email: skihika@fidauganda.org.
1
Binaifer Nowrojee, “Making the Invisible War Crime Visible: Post-Conflict Justice for Sierra Leone’s
Rape Victims,” Harvard Human Rights Journal (2005).
2
Helen Scanlon and Kelli Muddell, “Gender and transitional justice in Africa: Progress and prospects,”
African Journal on Conflict Resolution (2009), p. 9.
3
Phuong Pham et al., When the War ends: Peace, Justice, and Social Reconstruction in Northern
Uganda A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in
Northern Uganda (Human Rights Centre, 2007).
4
Situation in Uganda, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic
Ongwen, Case No. ICC-02/04-01/05, Decision on the Prosecutor's Application for Unsealing of the
Warrants of Arrest, 4-27 (Oct. 13, 2005).
5
Daily Monitor, 13 May 2004.
6
Supra n 3.
7
Harriet Nabukera Musoke, “Transitional justice and gender in Uganda: Making peace, failing women
during the peace negotiation process,” AJCR 9 No. 2 (2009).
societies.8 The pervasive violations that women experience during armed conflicts are rarely
integrated into transitional justice processes, which entrenches existing inequalities and
fosters a culture of impunity for gender crimes.9

The patriarchal constructions of transitional justice processes often privilege the experiences
of men over those of women, providing men with differential protection.10 Many laws and
policies, themselves a product of a patriarchal society, condone sexual stereotypes of men’s
control over women’s bodies and are grossly inadequate in addressing gender-based human
rights violations.11 Occasionally, gender issues are slotted into transitional justice
mechanisms as an afterthought. Makau Mutua argues that transitional justice mechanisms
cannot simply “slot” gender-oriented notions of justice into existing processes; instead, they
need to be reconceptualised to make them more gender responsive.12

Women’s rights organisations such as FIDA-Uganda continue to play a vital role in

transforming transitional justice mechanisms to make them more gender responsive. This
paper will reflect on the initiatives taken by civil society organisations (CSOs) to shape
transitional justice processes in Uganda. It will also examine the advocacy strategies
adopted to make them gender sensitive. Special focus shall be given to activities
implemented by FIDA-U. To this end, the first part of this paper gives a brief background to
the conflict in northern Uganda. The second part discusses the transitional justice
mechanisms adopted in northern Uganda. The third part examines the role played by civil
society in transitional justice processes, and the challenges faced. The fourth part shall
critically analyse specific activities under taken by FIDA-U and other CSOs to engender the
transitional justice processes. The final part shall be the conclusion.

About FIDA-Uganda

FIDA-U is a human rights organisation that is the pioneer of legal aid and public legal
education in Uganda. For over 30 years, it has enjoyed a national reputation as a premier
women’s rights organisation and has led the struggle for women’s empowerment and access
to justice for over 20 years. It has extensive experience in public interest litigation and
national and international advocacy for gender equality. It has consultative status with United
Nations Economic and Social Council (ECOSOC) and observer status with the African
Commission on Human and People’s Rights.

Background to the Conflict

Since its independence in 1962, Uganda has had a violent military past, which witnessed the
ousting of the Milton Obote regime in 1971, Idi Amin Dada in 1979, Milton Obote’s second
deposition in 1985, and Tito Okello’s fall in 1986.13 The most protracted of these armed
conflicts has been between the LRA and the government of Uganda. The war was started by
Alice Lakwena14 and continued by Joseph Kony, the self-styled rebel leader of the LRA.
Kony and Lakwena claimed to have been endowed with spiritual powers to cleanse the
people of northern Uganda of their sins and to overthrow the government of President Yoweri

8
Supra n 1.
9
Supra n 2.
10
Hilary Charlesworth and Christine Chinkin, “The Gender of Jus Cogens,” 15 Human Rights
Quarterly 63 (1993).
11
Makau Mutua, “Transitional justice in sexual and gender-based violence,” in Unfinished Business:
Transitional justice and women’s rights in Africa, ACCORD Occasional Paper No. 1 (2008).
12
Ibid.
13
Zachary Lomo and Lucy Hovil, “Behind the violence: The war in Northern Uganda,” Monograph
Series no. 99, Institute for Security Studies (2004).
14
Alice Lakwena went into exile in Kenya 1989. She died in 2007.
Kihika Sarah Kasande 2
Museveni.15 Despite the absence of a clear political motive, the LRA engaged in widespread
and systematic human rights violations and established a pattern of brutalisation of civilians
by acts including mass killings, rape, defilement, mass abductions of children, sexual
violence, mutilation, and the destruction of property on an unimaginable scale.16

Abducted civilians were forcibly “recruited” as fighters, porters, and sex slaves to serve the
LRA and compelled to contribute to attacks against the Ugandan army and civilian
communities.17 Sexual violence, particularly rape and sexual slavery, were methodically used
as tools of war and as instruments of terror.18

The Transitional Justice Paradigm in Uganda

Transitional justice has been defined as the “conception of justice associated with periods of
political change, characterized by legal responses to confront the wrongdoings of repressive
predecessor regimes.”19 Transitional justice mechanisms take the form of truth commissions,
trials, indigenous justice mechanisms, and reparations schemes.20 They mainly provide post-
conflict societies with a holistic sense of justice, establish civic trust, reconcile people and
communities, and prevent impunity and future abuses.21 Distinguished legal scholar Makau
Mutua has referred to them as “the midwife for a democratic, rule of law state” because of
the key role they play in establishing foundations for sound constitutionalism, peacebuilding,
and reconciliation in post-conflict societies.22 Justice as envisaged under the various
transitional justice mechanisms connotes fairness and accountability for actions. It means
that the rights of individuals must be protected and the crimes of wrongdoers punished by
processes that are fair and accountable and that protect the interest of the victim, the
accused, and society at large.23

Having failed to put an end to the atrocities committed by the LRA following years of military
campaigns, the government of Uganda in 2003 referred the situation of northern Uganda to
the International Criminal Court (ICC).24 Subsequently, the ICC Pre-trial Chamber unsealed
warrants of arrest against five of the LRA’s commanders.25 In 2006, the government of
Uganda and the LRA commanders committed to high-level peace negotiations at Juba in
Southern Sudan.26 The agenda of the Juba peace negotiations included cessation of
hostilities, a comprehensive solution to the conflict, reconciliation and accountability, a formal
cease-fire, and a plan for disarmament, demobilisation, and reintegration. In 2007, pursuant
to Agenda Item No. 3 of the peace negotiations, the government of Uganda and the LRA

15
Supra n 5.
16
Situation in Uganda, The Prosecutor V Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic
Ongwen, Case No. ICC-02/04-01/05, Decision on the Prosecutor's Application for Unsealing of the
Warrants of Arrest, 4-27 (Oct. 13, 2005).
17
Supra n 5.
18
Citizens for Global Solutions, In Uncharted Waters: Seeking Justice before the atrocities have
stopped in Uganda and the Democratic Republic of Congo (June 2004).
19
Ruti Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003), p. 69.
20
Ibid., p. 75.
21
Supra n 19.
22
Supra n 11.
23
Sir Emyr Jones Parry, “Justice and Rule of Law: Conflict prevention, Post conflict support and peace
building” (Address to the International Security and Global issues research group and the Davies
Memorial Institute Seminar, 2004), p. 4.
24
ICC Press Release, “President of Uganda refers situation concerning the Lord's Resistance Army
(LRA) to the ICC,” ICC20040129-44-En (29 February 2004).
25
Supra n 16.
26
Melanie Thernstrom, “Charlotte, Grace, Janet and Caroline Come Home,” N.Y. Times, May 8, 2005.
See also International Crisis Group, Northern Uganda: Seizing the opportunity for peace (2007)
Kihika Sarah Kasande 3
rebels entered into an Agreement on Accountability and Reconciliation, which sets the
accountability framework in northern Uganda by specifying the formal and informal
accountability mechanisms to be adopted. It provides for the establishment of a War Crimes
Division within the Ugandan High Court to try perpetrators of human rights violations
committed during the conflict.27 It also provides for truth-telling and truth-seeking processes
aimed at promoting reconciliation between victims and perpetrators.28 Finally, it provides for
traditional justice mechanisms such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc, and Tonu ci
Koka.29

In a last-minute decision, Joseph Kony refused to sign the final peace agreement, citing the
Ugandan government’s failure to persuade the ICC to suspend the arrest warrants against
the LRA leadership. The refusal by Kony to sign the final peace agreement has not deterred
the government from implementing the provisions in the Agenda Item No. 3 agreement.

Following the signing of Agenda Item No. 3 of the Juba peace talks by the LRA and the
government, the Justice, Law and Order Sector (JLOS) established a Transitional Justice
Working Group (TJWG) tasked with the operationalising the transitional justice mechanisms
contained in the agreement. The priorities of TJWG include reconciliation and reintegration of
ex-combatants into the community, prosecution of the masterminds of the conflict, individual
and community reparations, institutional reform of the judiciary and the security sector in
order to rebuild trustworthy public institutions, and rehabilitation and development of new
infrastructure.30

Civil Society and Transitional Justice Mechanisms in Uganda

Civil society has been defined as “the collection of organized interests that nominally exist
outside the political sphere, yet often mediate between the public at large and the state. It
includes, among others, NGOs and civic associations. The latter are primarily voluntary and
membership based, whereas the former are ordinarily professional units.”31

Both national and international CSOs continue to play a critical role in designing and
monitoring the implementation of the transitional justice mechanisms in Uganda.32
Organisations such as Isis Wicce and Refugee Law Project have published reports on the
human rights abuses that occurred. The reports have been used to influence the nature of
government interventions and to facilitate rehabilitation and reintegration in the post-conflict
communities. The reports also provide a historical record of the conflict, which is necessary
for the prevention of future conflicts of a similar nature. CSOs successfully lobbied for the
establishment of the War Crimes Division as per the Juba agreement on accountability and
the enactment of the International Criminal Court Act, which domesticates the ICC’s Rome
Statute.33

CSOs have mobilised and empowered victims to demand accountability for the human rights
violations they experienced. They also fill gaps of technical expertise that exist within state
institutions, delivering vital services in areas in which the government is unable to deliver

27
Annexure to the Agreement on Accountability and Reconciliation of 2007, Clause 7.
28
Ibid., Clause 7.2.
29
Ibid., Clause 3.
30
Justice Law and Order Sector of Uganda, “Transitional Justice in Northern Uganda, Eastern Uganda
and some Parts of West Nile Region,” Transitional justice study report (2007).
31
Risse, T., Ropp, S. and Sikkink, K., eds., The Power of Human Rights: International Norms and
Domestic Change (Cambridge: Cambridge University Press, 1999).
32
David Backer, “Civil Society and Transitional Justice: Possibilities, Patterns and Prospects,” Journal
of Human Rights 2, No. 3 (2003), pp. 297–313.
33
The International Criminal Court Act was enacted in May 2010.
Kihika Sarah Kasande 4
them as a result of resource constraints or laxity. There are numerous CSOs providing legal
aid, healthcare, livelihoods, and psychosocial support to victims in northern Uganda.34

In spite of their critical role, CSOs in Uganda operate within a restrictive policy and legal
environment. Laws such as the NGO Registration (Amendment) Act of 2006, along with the
draft NGO regulations, restrict the legitimate work of CSOs. The NGO Board, which
regulates the activities of NGOs in Uganda, lacks independence and holds excessive power
and jurisdiction over the registration and running of NGOs.35 Under the NGO regulations, the
NGO Board has the power to deregister and disband NGOs and to impose conditions on
areas of operation, all of which threatens organisations’ independence and existence.36
Furthermore, the regulations limit interactions between NGOs and their beneficiaries by
requiring NGOs to give seven days’ notice in writing to the district authorities before making
direct contact with local people in rural areas.37 In order to avoid the restrictions of the NGO
Act, some CSOs, including FIDA-U, are registered as companies limited by guarantee under
the Companies Act of Uganda Cap 110, which is less restrictive.

As a result of the mistrust that exists between CSOs and government, some of the positive
recommendations made by CSOs have not been considered by the government. For
example, the government has paid little regard to the Draft National Reconciliation Bill
drafted by CSOs in Uganda.38 The bill proposes to establish an organ for national
reconciliation that would provide for a comprehensive and unfettered inquiry into and
clarification of Uganda’s history.

CSOs in Uganda are also hampered by their failure to collaborate at the local, national, and
international levels, which has deprived them of the benefits of collective action, hence
limiting their capacity effectively to promote human rights. Funding limitations also undermine
the work of CSOs. Most CSOs are entirely dependent on foreign funding, with no alternative
sources of income, which makes them vulnerable in case such funding is suspended.

Placing Gender Concerns on the Agenda of the Juba Peace Talks

Although women suffered the most egregious human rights violations during the conflict, they
were visibly absent from the Juba peace negotiations.39 Consequently, women’s rights
organisations devised creative strategies of placing gender concerns on the agenda of the
negotiations.40 Diverse women’s organisations formed the Uganda Women’s Coalition for
Peace (UWCP). The lead organisations in the coalition were: the Uganda Women’s Network
(UWONET), which coordinated the coalition’s activities; the Centre for Conflict Resolution
(CECORE); FIDA-U, which provided legal analysis to the process; and International Cross
Cultural Exchange (Isis-WICCE), which documented women’s experiences and concerns.41
The diversity in membership gave UWCP legitimacy and credibility within the communities in
northern Uganda. The primary objective of the coalition was to amplify the voices of women
in northern Uganda to ensure that the most pervasive violations that women experienced
during the conflict were not obscured during the peace negotiations.

34
The Legal Aid project of the Uganda Law Society, FIDA-Uganda, and Refugee Law Project.
35
NGO Registration Act (Amended), Section 7.
36
See NGO Petition on the NGO Act 2006 11(2) .
37
The Nongovernmental Organisations Registration Regulations S.I 113-1, Reg. 12 (a).
38
The draft of the National Reconciliation Bill was prepared by the Refugee Law Project.
39
This exclusion was in contravention of UN Resolution 1325 of 2000 and Resolution 1820 of 2008.
40
Views of women from Northern and North Eastern Uganda on the peace talks: Mechanisms of
accountability and Reconciliation (August 2007).
41
Supra n 7.
Kihika Sarah Kasande 5
UWCP organised consultative meetings with women at the grassroots in the post-conflict
areas, soliciting their views on the peace process and their priorities in terms of
accountability and reconstruction.42 The consultative meetings provided communities with a
platform to critique and dialogue over some of the pertinent issues at the peace talks. For
example, women were able to voice their concerns with having traditional justice
mechanisms as part of the accountability framework in northern Uganda. They observed that
traditional justice mechanisms are often premised on cultural values that discriminate against
women and that their adoption under the transitional justice framework might therefore
reinforce existing inequalities. They also questioned the effectiveness of traditional justice
mechanisms in addressing gross human rights violations, as they had never been used to
resolve cases of a similar nature before. UWCP transmitted the recommendations made
during the consultative sessions to the mediators at Juba.

UWCP organised trainings for leaders from various districts to enhance their understanding
of the key issues at the peace negotiations and to equip them with knowledge on how to
manage and resolve conflicts peacefully. UWCP also facilitated the establishment of
community-based organisations that offered a variety of services to the community, such as
counselling, trauma management, and support to formerly abducted child mothers.43 With
support from the United Nations Women’s Development Fund (UNIFEM), UWCP created a
peace caravan and a peace torch that were used as strategic tools to promote the
participation of women in the peace process.44 In 2006, selected women representatives
travelled to Juba to observe the peace talks and lobby the negotiators for gender-responsive
provisions in the final peace agreement.

Several gains were made at Juba following the successful advocacy strategies of the UWCP.
The government of Uganda added a woman to its negotiating team and a series of gender-
responsive provisions were included in the Agreement on Accountability and Reconciliation.
For example, the agreement urges the parties to prevent and eliminate any gender
inequalities that could arise as a result of the transitional justice processes adopted.45 The
Annexure to the agreement further stipulates that the special needs of women and children
need to be taken into account, especially in connection with the payment of reparations.46 It
also provides for an of accountability process that protects the privacy and dignity of women
who have been subjected to gender crimes.47 Finally, it calls upon parties to the agreement
to ensure that the experiences, views, and concerns of women are taken into account and
that women are not merely protected as victims but also empowered as agents.48

UWCP faced a number of challenges in its advocacy work. Cultural biases were used to
delegitimise the coalition’s involvement in the peace process. Women who went to observe
the peace talks were discredited as immoral women.49 Limited resources prevented the
coalition from having a permanent presence at the negotiations. Furthermore, the diversity in
membership that was once a strength of the coalition also led to its disintegration.
Organisations with different mandates wanted their program areas prioritised when
fundraising for the activities of the coalition. This led to tensions within the coalition and
forced some organisations to break away.

Legal Reform

42
Supra n 40.
43
Supra n 41.
44
Ibid.
45
Annexure to the Agreement on Accountability and Reconciliation 2007, Clause 10.
46
Ibid., Clause 11(i).
47
Ibid.
48
This is in accordance with Para 1-4 and 8 of UN Security Council Resolution 1325.
49
Ibid.
Kihika Sarah Kasande 6
The success of transitional justice mechanisms in addressing crimes of a gendered nature at
a national level requires a series of legal and institutional reforms. Although progress has
been made at the international level to end impunity for gender crimes, the national legal
framework in Uganda is grossly inadequate when it comes to addressing gender crimes.
Under the international criminal justice framework, rape, sexual slavery, forced prostitution,
forced pregnancy, forced sterilisations, and sexual violence in conflict situations are
recognised to constitute crimes against humanity, war crimes, and genocide.50 The Rome
Statue and the Rules of Procedure and Evidence of the ICC not only provide for the
participation of victims in court proceedings,51 but also for several important procedural
protections to safeguard the physical and mental well-being of victims of and witnesses to
sexual violence.52 These progressive gender provisions are based on the norms developed
in the jurisprudence of the International Criminal Tribunal for Rwanda and the International
Criminal Tribunal for the former Yugoslavia, which aimed comprehensively to protect
women’s rights.

At the national level, save for the recent amendments to the penal code pertaining to the
offence of defilement,53 the bulk of the legal provisions on sexual offences are archaic
colonial laws that were enacted in 1904. They were tailored to perpetuate discrimination by
maintaining male dominance and female subordination.54 Therefore, to expect the same laws
to address gender-based violations effectively is a fraught endeavour.55 For instance, the
laws on sexual assaults limit “sexual acts” to penile vaginal penetration,56 thus ignoring a
wide range of sexual assaults that may be more harrowing.57 Furthermore, the classification
of sexual offences as offences against morality and not offences against the person
trivialises the impact that sexual violence has on its victims.

FIDA–U and other women’s rights organisations have undertaken several advocacy
initiatives to facilitate legal and institutional reforms with a bid to enhance women’s access to
justice. FIDA-U has organised sensitisation seminars for policymakers to educate them on
the significance of the proposed laws or amendments in protecting the rights of women,
especially those who are victims of gender crimes, inclusive of the child mothers in northern
Uganda. FIDA-U has also published fact sheets, position papers, and articles in newspapers
to sensitise the public about the proposed laws.

To effectively advocate for legal reforms, FIDA-U and other likeminded organisations formed
coalitions to campaign for the enactment or adoption of gender-sensitive laws and policies.
The coalitions successfully lobbied for the enactment of the Domestic Violence Act of 2010,
the International Criminal Court Act of 2010, the Penal Code Amendment Act of 2007, the
Anti-Trafficking in Persons Act of 2010, and the Female Genital Cutting Act of 2010. Some of
the pending bills still being advocated for include the Marriage and Divorce Bill and the
Sexual Offence Bill. One of the most prominent and successful coalitions was the Coalition
on the Domestic Violence Bill, which was formed to advocate for the enactment of the
Domestic Violence Act, considered vital to ending impunity for domestic violence.

50
The Rome Statute of the ICC, Article 7g and 8xxii.
51
Ibid., Article 68.
52
The Rules of Procedure and Evidence of the International Criminal Court, Rules 19, 70, 71, and 72.
53
The Penal Code Amendment Act amended section 129 of the Penal Code Act, which is in relation to
defilement of a minor, to provide for a more expansive definition of statutory rape.
54
Catherine Mackinnon, Towards a feminist theory of the state (Cambridge: Harvard University Press,
1991).
55
Ibid.
56
Penal Code Act, Cap 120 Laws of Uganda, S.123.
57
Sexual assaults such as forced impregnation and sexual slavery.
Kihika Sarah Kasande 7
Spearheaded by FIDA-U and the Centre for Domestic Violence Prevention (CEDOVIP), the
coalition consisted of a wide spectrum of CSOs that ranged from women’s rights
organisations and religious groups to organisations of persons with disabilities. The coalition
held nationwide consultations and collected views from the public, which were reduced into a
petition. The petition was presented to the legal and parliamentary affairs committee during
the parliamentary hearings of the bill. Following the successful advocacy strategies of the
coalition, the Domestic Violence Act was enacted.

FIDA-U has also forged alliances with members of the judiciary, who have the capacity to
transform the law through jurisprudence based on principles of equality and human rights. In
collaboration with the Judicial Studies Institute, FIDA-U organised workshops for judges and
magistrates to sensitise them on the progressive developments in international law regarding
the protection of women’s rights and the prosecution of gender crimes, as well as the
protective measures they could adopt to shield victims of gender crimes from stigma and
trauma during trial.

Judiciary and Security Sector Reform

Nurturing a structured institutional collaboration with JLOS has been one of the effective
strategies adopted by FIDA-U to bring about institutional reform in order to enhance access
to gender justice. Gender justice entails women’s authentic access to justice and full
participation in the judiciary.58

As a member of the JLOS TJWG, FIDA-U has provided JLOS with recommendations on the
reforms necessary to enhance the capacity of institutions to protect women’s rights. FIDA-U
has organised gender trainings for the police, judges, magistrates, and prosecutors to
unpack the underlying factors and the social cultural contexts within which gender-based
violence occurs and the necessary social interventions to prevent it. The purpose of the
trainings was to bring about attitudinal changes within the judiciary and the security sector in
order to provide victims of gender crimes with access to compassionate avenues for justice.
Following the close collaboration between FIDA-U and the judiciary, the Magistrates Court in
Gulu district, northern Uganda, has set aside two days per week to hear cases of rape,
defilement, domestic violence, child support, and succession disputes.

Addressing the needs of victims of sexual and gender-based violence requires the
intervention of multiple agencies, inclusive of the police, courts, civil society, healthcare and
mental health workers, and policymakers. Strengthening collaboration between the relevant
sectors that interface with victims of gender-based violence enhances provision of vital
comprehensive services to victims/survivors, which mitigates the negative health effects of
sexual and gender-based violence and promotes access to legal redress. Drawing from the
experiences of other post-conflict countries, such as Liberia and Sierra Leone in addressing
such violence, FIDA-U in collaboration with UNIFEM convened consultative meetings for
professionals from the health sector, the judiciary, local government, and the security sector
and members of civil society to develop a national referral pathway for victims of gender-
based violence. The referral pathway coordinates the various sectors that interface with
victims, enhancing access to justice, psychosocial support, and health services. Regular
review meetings are held by stakeholders to monitor the effectiveness the referral pathway.
The national referral pathway requires vast investment for it to be fully operational and
participatory. While FIDA-U facilitated the creation and adoption of the referral pathway, it is
not within its ambit to enforce its implementation.

58
Pam Spees, “Gender Justice and Accountability in Peace Support Operations” (International Alert,
February 2004), available at http://www.international-
alert.org/pdfs/gender_justice_accountability_peace_operations.pdf.
Kihika Sarah Kasande 8
Engendering Traditional Justice Mechanisms

The Ugandan constitution recognises culture as one of the mechanisms of enhancing the
dignity and well-being of the person. The National Objectives and Directive Principles of
State Policy XXIV outline the cultural objectives. Accordingly, “cultural and customary values
which are consistent with fundamental rights and freedoms, human dignity, democracy and
with the Constitution may be developed and incorporated in aspects of Ugandan life.”59 The
constitution recognises the right to enjoy, practise, profess, maintain, and promote any
culture, cultural institution, language, tradition, creed, or religion in community with others.60 It
prohibits any laws, cultures, customs, or traditions that are against the dignity, welfare, or
interest of women or that undermine their status.61

Traditional justice mechanisms, which include Culo Kwor, Mato Oput, Kayo Cuk, Ailuc, and
Tonu ci Koka, comprise a central part of the framework for accountability in post-conflict
northern Uganda.62 These indigenous accountability mechanisms enjoy popular support in
the region because they are premised on shared cultural practices and values. Importantly,
they served as substitute accountability mechanisms following the collapse of the formal
justice mechanisms during the conflict.63 There is consensus in northern Uganda that
traditional justice mechanisms should complement the work of formal justice processes.64

In spite of their popularity, some of the cultural values upon which traditional justice
mechanisms are premised often marginalise women.65 For example, in most cases,
traditional justice systems rely on male elders to make decisions on matters affecting
women, with the affected women absent from the deliberations.66 Differences in power and
social economic status constrain the open deliberations on the facts, and elders tend to
pronounce idealised statements of custom that are often disadvantageous to women.67 Often
when women seek to bring about change, culture becomes sacred and unchangeable.68 On
the other hand, male pragmatic choices are elevated to culture.

However, it is important to note that culture is a double-edged sword; while it can confine and
constrain women, it can also be wielded creatively and resourcefully to enhance women’s
rights.69 FIDA-U’s engagement with Acholi cultural institutions was informed by the fact that
the majority of women find the traditional justice system a legitimate forum for resolving

59
Constitution of Uganda 1995, National Objectives and Directive Principles of state police, Principle
XXIV.
60
Ibid., Article 37.
61
Ibid., Article 33.
62
Juba Peace Agreement on Accountability and Reconciliation, June 2007, Article 3.1.
63
Ibid.
64
Hovil L and Quinn J, “PEACE FIRST, JUSTICE LATER: TRADITIONAL JUSTICE IN NORTHERN
UGANDA,” Refugee Law Project Working Paper No. 17 (2005).
65
Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Oxford: Polity Press,
2002), p. 68.
66
Ibid., p. 26.
67
Nyamu-Musembi C, “Are local norms and practices fences or pathways? The example of women’s
property rights,” in An-Na’im (ed), Cultural Transformation and Human Rights in Africa (London: Zed
Books, 2002), p. 128.
68
Florence Butegwa, “Mediating Culture and Human Rights in Favour of Women’s Land Rights for
Women In Africa: A Framework For Community –Level Action,” in An-Na’im (Ed), Cultural
Transformation and Human Rights in Africa (London: Zed Books, 2002), p. 123.
69
Sylvia Tamale, “Domestic Violence & Gender Relations in Contemporary Uganda” (Presentation at
the Nora’s Sister Seminar organized by the Royal Norwegian Embassy and the Gender
Mainstreaming Department, Makerere University, December 11, 2009).
Kihika Sarah Kasande 9
disputes and only engage the law as a last resort.70 Additionally, placing culture parallel to
rights leaves a majority of women without redress because it requires them to “strip
themselves of culture before enjoying rights.”71 Consequently, women are left with the limited
choice of either complying with negative culture or of joining the dominant human rights
discourse that trivialises their cultural experiences,72 some of which are not necessarily
negative. The social legitimacy culture enjoys in northern Uganda made it imperative for
FIDA-U to work with Acholi cultural leaders, who are the custodians of Acholi culture, in order
to facilitate a cultural transformation process to protect the rights of women within that
cultural setting.

In a consultative meeting between the Ker Kwaro Acholi and FIDA-U, the paramount chief of
the Acholi expressed a desire to transform Acholi culture into a tool for peace and justice as
opposed to a tool for suppressing women.73 Consequently, the Ker Kwaro Acholi entered into
a partnership with FIDA-U to document Acholi cultural practices on gender relations with the
aim of transforming Acholi culture to realign it with human rights principles of equality and
non-discrimination. The Ker Kwaro Acholi is a cultural institution comprising 50 traditional
leaders of the Acholi people and is regarded as the custodian of Acholi culture. It was
reconstituted in 2000 under Article 246 of the constitution as a legal cultural institution.

FIDA-U organised consultative sessions for the Acholi chiefs in which they agreed on a
common interpretation of cultural practices and identified areas of contention warranting
further probing and dialogue. The participants were guided in indentifying cultural practices
that infringed on the rights of women as provided for in the constitution of Uganda and
therefore needed to be abandoned, as well as as those that are positive and should be
retained. There was consensus on the abandonment of a number of cultural practices that
impaired the rights of women. These include domestic violence, disinheritance of girls, child
marriages, abductions, and the sending away of child mothers who are regarded as
infidels.74 However, there were controversial issues, such as the recognition of the land rights
of women and payment of bride price. The payment of bride price was widely supported by
both men and women, albeit for different reasons. Among women, it is considered a form of
honour and guaranteed respect within the community, and, among men, it cements a
relationship, making it difficult for a woman to vacate a marriage on a whim. The participatory
process augmented the authenticity of the documentation. To counter the male dominance,
given that all chiefs are male, elderly women were included as part of the joint dialogues with
chiefs. The final outcome of the process was the publication of the Acholi Cultural Principles
on Gender Relations, which were adopted by the Acholi chiefs. The exercise enabled the Ker
Kwaro to redefine Acholi culture using human rights.

Legal and Human Rights Awareness Sessions

Institutional reform in post-conflict societies is slow and difficult, therefore enhancing

protection of human rights in such situations requires investment in legal and human rights
education. FIDA-U has conducted legal and human rights awareness sessions in

70
Supra n 68.
71
Sylvia Tamale, “The Right to culture and the culture of rights: A critical perspective on Women’s
sexual rights in Africa,” in Urgent Action Fund-Africa, SEX MATTERS (Nairobi: UAF-A), pp. 149–165.
Also see, Feminist Legal Studies 16, No. 1 (2008), p. 157.
72
Human Rights Council, A/HRC/4/34 (2007) 17.
73
Inception meeting with UNIFEM, KKA and FIDA-U, April 30, 2009.
74
FIDA-Uganda, Engaging cultural institutions to expand access to justice for women: A case study of
the Ker Kwaro Acholi (2010).
Kihika Sarah Kasande 10
communities in northern Uganda in order to equip them with basic knowledge on the law and
human rights and on where to seek redress when those rights are violated.75

FIDA-U has also trained paralegals on the basic principles of the law to enable them to
provide the communities with basic information on their rights and to mediate conflicts.

In order to ensure the effective participation of women in peace processes, FIDA-U trained
female peace monitors. The aim of the training was to help women gain knowledge,
confidence, and skills to maintain peace and identify likely causes of conflict. The participants
were trained to appreciate the significance of peace monitoring, conflict resolution, and
peacebuilding.

Conclusion

This paper has discussed the transitional justice framework in Uganda and the role played by
CSOs such as FIDA-U in engendering transitional justice mechanisms. It emphasises the
need to broaden the transitional justice discourse to incorporate gender concerns in order to
“secure substantial material gains for women in transition.”76 CSOs need continuously to
monitor the implementation of transitional justice processes to ensure that the gains made
trickle down to the grassroots. Cultural institutions need to be engaged further to enhance
their capacity to advance the rights of women. Restorative justice should be given primacy in
transitional justice processes in order to enable full rehabilitation of the post-conflict
community.

75
Vivek Maru, “Between law and society: Paralegals and the provision of justice services in Sierra
Leone and worldwide,” 31 Yale J. Int'l L. 427 (2006).
76
Christine Bell and Catherine O’Rourke, “Does feminism need a theory of transitional justice? An
introductory essay,” International Journal of Transitional Justice 1 (2007), pp. 23–44.
Kihika Sarah Kasande 11