Justice and rape on the periphery: the supremacy of social harmony in the space between local solutions and formal judicial systems in northern Uganda

Abstract

In the Acholi sub-region of Uganda, historically and geographically peripheral since the colonial era and the epicenter of over 20 years of war – there is a peculiar manifestation of what appear to be contradictory phenomena: brutally violent retribution and extraordinary forgiveness. This article suggests that both responses to wrongdoing are motivated by the same supremely important value of social harmony.

The article focuses on one crime, rape, and examines what justice means for Acholi women in the vacuum of justice created by the decayed state of former local methods of responding to wrongdoing and the still inadequate role and legitimacy of Uganda's judicial system and the International Criminal Court. The research indicates that notions of appropriate punishment are oriented by the degree to which the perpetrator is seen as important to future social harmony. The various responses to rape are a product of dynamics in the justice gap, and, I want to suggest, are illustrative of responses to crime or wrongdoing more generally.

The article highlights the centrality of two integral aspects of lived Acholi reality: there is a profound value of social harmony, and a deep distrust of higher authorities to dispense justice in their interest. Women's experiences after rape in this study underscore the importance of an arbiter of injustice that has earned moral jurisdiction on a local level. When authority is recognized and trusted, parties typically accept the outcome of arbitration, restoring broken social harmony. However, without moral jurisdiction, outcomes of such processes are viewed with suspicion and usually exacerbate existing tensions.

Keywords:

• rape
• justice
• social healing
• northern Uganda
• Acholi
• transitional justice
• war

At four o'clock one morning my neighbors beat a man near to death. He had stolen a mobile phone. Women laughed and babies cried while the man's ribs were crushed by the people I buy eggs from, have tea with, and whose children play football outside my house. They are rather ordinary, hospitable and friendly people so it was all the more disturbing to listen to the sound of heavy sticks striking his body unabated despite his cries for mercy.

This is not an uncommon occurrence in northern Uganda. In the past, or in villages further away from government authorities in Gulu town, a likely result would have been death rather than a month in a hospital. Yet this is the same community that has welcomed home members of the Lord's Resistance Army (LRA) and has preached, and often practiced, extraordinary forgiveness. Former LRA Brigadier Kenneth Banya, who is known to have committed crimes similar to those included in the arrest warrants of his former comrades-in-arms wanted by the International Criminal Court (ICC), introduces himself in community gatherings as a “retired civil servant”. He now attends a popular Pentecostal church in Gulu where he joyfully dances and sings songs about the grace of God every Sunday, turning to his neighbor when prompted and offering them signs of peace. Visibly uninhibited, they receive him warmly and shockingly do not remind him of the horror he visited on them for so many years. There is a notorious story of a woman angrily confronting and trying to strangle him in a bank queue. The fact that this incident is so often retold indicates how extraordinary it is for former senior LRA to be disturbed by that level of open hostility in their daily lives. One of his former forced “wives” described with great conviction her inner spiritual journey of forgiveness. Although they have little contact, she insists, “I harbor no bitterness toward him.”1

Since the intervention of the ICC thrust Uganda to the centre of justice debates, observers have promoted competing interpretations of what appear to be incompatible and contradictory expressions of northern Ugandan's posture toward justice, mercy and forgiveness. Restorative justice mechanisms, usually understood as “local” were pitted against retributive approaches, typically backed by more vigorous international human rights advocates and international law. This association is as misleading as it is pervasive. Restorative and retributive justice are two paradigms that present distinct visions of crime and the goals that responses to crime should accomplish. Restorative justice sees crime as an injury to people, where retributive justice sees crime as a violation of law. The outcomes of retributive justice are concerned with the needs of society, the state and humanity. It pursues a normative role through goals of deterrence and incapacitation through incarceration. Restorative justice seeks the rehabilitation of the perpetrator, understanding the factors that contributed to his or her behavior and repairing the harm caused by the crime to the victim and social order.2

Too often a particular justice mechanism is identified as either restorative or retributive when in fact closer scrutiny reveals that elements of both approaches operate in most justice mechanisms. As in the example of my neighbors taking justice into their hands in the street, some “local” justice is highly retributive and can lead to appalling abuses of human rights. The “local” approach for dealing with witchcraft, incest and sodomy can be brutal. During my own work and in the reports of others, stories have been recounted of mutilation, torture and killing of witches/sorcerers.3 Thieves have been known to run to the police and turn themselves in to escape almost certain death at the hands of an angry mob. This calls into question assertions that Acholi are innately forgiving. Many “opinion leaders” speak about this idea especially in the Gulu area, including lineage-based Rwodi (chiefs) who are part of the Acholi cultural foundation Ker Kwaro Acholi and religious leaders such as Archbishop Odama and former Bishop Ochola. Reports by the Acholi Religious Leaders Peace Initiative (ARLPI), the Justice and Peace Commission of the Catholic Church, Refugee Law Project, and that by Denis Pain following Kacoke Madit in 1997 are all examples of this view.4

Nonetheless, many Acholi do express a deep cultural value of forgiveness and evoke forgiveness in relation to their identity in public discourse as well as in their personal lives and family interactions. Many (though not all) rituals that are performed in the aftermath of crime or other wrongdoing are powerfully symbolic, embodying rich notions of reconciliation that are emotionally evocative and socially healing.5 Those who promote “Acholi justice” as an alternative or complement to the ICC emphasize these reconciliatory and restorative aspects. Those who oppose the use of Acholi justice challenge the authenticity of this vision and appropriateness of local processes to address crimes of concern to the international community.6 Understandably, many Acholi have responded angrily to what they view as defamation of their culture and sabotage of their chances for peace, feeling misunderstood and misrepresented. But they have struggled to identify and articulate why the reality of extreme violence in their community does not negate, and is consistent with, the impetus for meaningful reconciliation.

How should apparent inconsistencies between calls for forgiveness of combatants and murderers and the spontaneous and widely accepted violence and brutal murders of witches, certain categories of rapists, thieves and homosexuals be understood? It can be argued that the answer lies in the exceptional nature of “transitional justice” – that the range of strategies a society pursues in order to emerge from conflict or totalitarian rule holds in tension political necessity, the pursuit of accountability and social healing.7 In this line of reasoning, the example of mob violence against a thief should not be compared with a categorically different response to LRA crime.

However, from research with Acholi women from northern Uganda who have been raped under “ordinary” circumstances and those who were raped by combatants, it is clear that their conceptions of crime, accountability and appropriate ways to redress wrongdoing are intricately related, and are closely linked to notions of moral community and how to restore social harmony – whether the violence was socio-political or not. Deeper understanding comes from appreciating the context in which notions of justice are formed and understood rather than looking at crimes of war as divorced from the rest of lived reality.

The dichotomies noted above surrounding the post-ICC justice debate obscure an internal and cohesive logic behind decisions that are made on how to respond to injustice on a local level. Social communal harmony is a supreme value that does not preclude but nearly always trumps the concurrent belief that wrongdoing deserves to be punished. In this article, I suggest that responses to crimes and other wrongdoing are best understood as located in the space between a “local” or embedded approach (as discussed further below) and the formal national judicial system. Many former ways of responding to wrongdoing (through, for example ritual, revenge or compensation and extended family systems) have decayed, yet a new system that can fill the gap created by their diminution has not been firmly established. This justice vacuum has given rise to greater prominence of newer actors such as Local Councilors (LCs), Christian churches and non-governmental organizations (NGOs).

Interpretations of justice that do not adequately appreciate the current Acholi situation are likely to minimize or neglect entirely the centrality of two integral aspects of lived Acholi reality: there is a profound value of social harmony, and a deep distrust of higher authorities to dispense justice in their interest. Understanding these dual dynamics clarifies the otherwise perplexing Acholi responses to crime. Those involved in and affected by crime need a level of faith in a justice system in order for it to contribute to social harmony. I refer to this faith and the perceived moral authority of an institution of justice as moral jurisdiction. The Ugandan central government and the ICC have thus far failed to earn that faith from a critical mass of Acholi. Although there continues to be significant criticism of the ICC involvement, as the LRA have moved beyond the borders of Uganda there has been a shift in attitudes which illustrates the dynamic described in this article. As the LRA has become less entrenched in the Acholi moral community the possibility of their punishment is seen as less of a threat to social harmony than it was during the Juba peace talks between the LRA and the government of Uganda.

This article focuses on Acholi women's responses to rape to reflect on Acholi responses to a variety of forms of violence. Rape is a problematic category imbued with legal meaning yet with varying social interpretations. Despite its ambiguity, broadly speaking, most definitions contain fundamental aspects of forced or coercive sexual intercourse.8 Evidence from women who have been raped demonstrates the importance of social harmony and the distrust of formal legal institutions to enact justice in their interest. Interpretations of their experiences are based on five years of living in northern Uganda, 200 interviews with a random sample of the population of women in two Acholi villages conducted between 2009 and 2011, as well as general ethnographic data collected over the same period. All interviews discussed women's control in their lives, injustices they had experienced, what happened in the aftermath, who they trusted to help them and their notions of love amongst Acholi. Seventy-six of the women interviewed shared having been raped, some multiple times and by different people. More in-depth interviews and participant observation was conducted with these women. Rape victims included those raped by combatants and others by relatives, strangers, acquaintances or partners. Most debate regarding responses to crime, especially crime committed in the context of war, focuses on which mechanism is most appropriate. Rather than approaching justice with the mechanism itself as the starting point, I begin with women, acknowledging that each has her own subjective experience. The analysis consciously sets aside polemic debates that are thin on empirical evidence and driven by externally generated advocacy agendas or local/national politics. I want to suggest that what happens after rape as a particular crime is a product of the dynamics in the space between local solutions and formal judicial systems. The various responses to rape in this justice gap, I argue, are illustrative of responses to crime or wrongdoing more generally and are consistent in expressing the supreme value of social harmony.

The justice hinterland: violence and forgiveness

The experience of a woman who was raped by two different men, her cousin and a soldier from the Uganda People's Defense Force (UPDF), illustrates dynamics critical to understanding justice in Acholiland. Both rapes took place in her early teenage years. One man was shot within minutes of raping her and the other was ritually cleansed. In both situations she felt that the responses to her rape were appropriate. The relationship, rather than the act shapes notions of appropriate punishment. The rape by a soldier happened when she had gone to visit an aunt in a neighboring village accompanied by a friend. They walked past a house where a government soldier was sitting outside. He threatened them at gunpoint, tied them and raped them both. Her friend managed to escape and ran to her aunt's home who immediately reported to a nearby military outpost. The soldiers hurried to the man's home where she was still being held and shot him on the spot. She explained, “He was shot, and I was negative [HIV status]. That was enough for me. He did something very dark; I was afraid that he might have killed me after raping me so it was the right thing to do.”

The next year her cousin raped her. She went home after it happened and told her stepmother who probed her for details and then called the clan elders to decide how to handle it. They “sentenced” her cousin to buy a goat for a cleansing ritual, which included both of them being smeared with faecal material from the goat's intestines and then being lectured on the perils of incest by one of the elders. Despite the act of forced sex being rather similar, she felt completely differently about the appropriate response to the crime her cousin committed. “It was a fitting punishment,” she reasoned, “because he was a relative.” She further explained, “It was the right punishment because that is what the elders decided. Also if it is cleansed by the blood of the goat then it can never happen again.” Importantly, the lecture from the elders assured her that she would not be re-victimized despite living in close proximity to her cousin. The goat's blood, the elders had explained, is only potent to cleanse polluting spirits once. She knew that her cousin's behaviour would be inhibited by fear of certain contamination if he repeated the act of forced incest.

Summary execution of a rapist and the ritual cleansing and forgiveness of incestual rape is governed by the same principle. On the periphery, social harmony is not protected and ensured by an efficient formal judicial system with moral authority. In some cases, the pursuit of social harmony manifests as mob violence, organized revenge, collective killing, or summary execution. In other cases, response focuses on cleansing the parties and/or location involved in the crime, or forgiveness related to Christian theological notions. Cleansing and/or forgiveness, moreover, does not necessarily preclude punishment. Punishment might well be considered to be deserved, but it is typically a secondary goal pursued only if it can be achieved with an acceptable level of disruption to social harmony.

“Embedded” and “distanced” response to crime

There are several categories that have been used to conceptualize diverse responses to crime, especially in a post-war context. The words local, traditional, national and international as descriptors have been used with associations that have led to misunderstandings such as equating local with restorative and international with retributive justice. Traditional is often used interchangeably with local, leaving “traditional justice” open to contestation, especially when claims of unbroken and gradual evolution of cultural practices are used to legitimize them.9 In practice, in the absence of a functional judicial system there are a variety of responses by a group of people, usually men, to deal with the aftermath of a violation against their wives, sisters or daughters. Practices are influenced by lived and oral history derived from specific locality, circumstance, and power dynamics among the people concerned. It is informed by tradition but is also influenced greatly by newer claims to legitimacy such as local government and Christianity. Local solutions to a disruption of social harmony are not fixed and cannot be understood with an essentialist view of culture. Gready discusses approaches to justice as “embedded” and “distanced”.10 He uses this distinction to refer initially to physical proximity of a justice mechanism to injustice, but infers that even a “distanced” institution can become “embedded” if it finds legitimacy, ownership and ability to participate by those who are closest to injustice.

I have found this conceptualization useful as it complements a notion of moral jurisdiction, or recognized legitimacy to a system of justice in a given locality. Because central state authority in northern Uganda has been relatively weak, broadly distrusted and service provision low, it is not surprising that local solutions would be used if not preferred to other more formal systems of justice. Only one woman in my research who had been raped had ever had her case heard in a court of law. Few cases were taken to the police but the outcome was disappointing, because of suspected bribery or gross incompetence and inefficiency. Many rapes were handled through family meetings, sometimes involving the LC. Some interventions formalized the relationship between the couple through the payment of bridewealth or other fees associated with socially illicit sex, especially if pregnancy had occurred. In the past, as women over 50 years old often described, it was more common for family members to take revenge by beating the man/boy. A few cases involved ritual cleansing of the people involved and the location where the act occurred. If the family was religious, they might reject Acholi ritual in favor of cleansing through Christian prayer. But the vast majority of women interviewed who had been raped had never reported the incident to anyone.

A gap in understanding results when accepting what people say they want or believe without obtaining information on what they actually do when a crime takes place. This point is illustrated especially clearly in the case of women who are raped by their husbands. The vast majority of women in this study believe that the men who raped them deserve to be punished, but very few take action to that end. While this provides insight into the fact that a married woman thinks it wrong to be violently forced to have sex with her husband, and that he deserves to be punished, this cannot be interpreted as her approval to lock him up in prison. Similarly, if someone expresses their desire to see Joseph Kony, the leader of the LRA, pay for his crimes it should not be assumed that this equates to support for the ICC. Such complex ideas need to be interpreted in light of the social and institutional constraints faced by the people involved and the ways that they negotiate for their needs and rights in such circumstances.

The polarization of embedded versus distanced justice arguments misses two important but subtle nuances. First, there is the categorically different nature of the understanding of crime as something to be punished versus something to be cleansed, with the appropriate remedy based on that understanding. Secondly, in the past and in villages further away from stronger institutions, local solutions are typically preferred and focus on repairing relationships and maintaining social harmony. An example is the case of men who are caught in the act of rape. When social harmony is served by the expedient punishment of the man, central state authorities are not involved. The authorities are seen not only as distant or corrupt as discussed in the next section, but also as inefficient. This leads to the denial of the felt need for participating in an immediate solution. The rights of the accused and legal processes stand in the way of rapid catharsis and the social benefits of dispensing immediate punishment.

In some “distanced” approaches to justice there have been efforts to respond to a more robust understanding of victims’ rights to include their needs. The inclusion of victims’ interests, as well as other provisions in the Rome Statute are indicative of a wider movement reacting to concerns of criminal justice's adequacy to respond to the complexity of harm inflicted on victims. The UN basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (2005) is one way in which the “distant” approach has moved towards being “embedded”. It outlines a number of acts aimed at satisfying the needs of victims including:

a.	Measures to end continuing violations;
b.	verification of the facts and full and public disclosure of the truth;
c.	an official declaration or judicial decision restoring the dignity, the reputation and the rights of the victim;
d.	public apology;
e.	commemorations and tributes to the victims.

Such efforts are laudable and respond to some of the needs that my informants have expressed; important among them is removal from the threat of violence. Almost without exception the women in my research have discussed separation (even if temporary) from the man who raped them as an important need, although one that has been constrained by the demands of social harmony.

Most women interviewed have expressed the notion that government is the only institution with the latent potential to uphold their rights, yet they rarely choose to involve the government. This is partly because of its inadequacies but also because the women's main concerns regarding their social and material needs may be undermined by legal processes. Even more, government institutions lack moral jurisdiction. Women instead tend to recognize local community authorities, such as in-laws, clan leaders, elders or other respected community members. These authorities are less bound by concepts of rights and formal rule of law and more influenced by notions of traditional gender roles and concepts of marriage and sex that are closely linked with ideas of property rights of men. Thus women are left essentially in a space where there is no justice.

Evidence suggests the coexistence of two ways of understanding suffering as due to criminal responsibility and spiritual/communal un-cleanliness. A woman raped in this context has a cosmology of suffering that includes not only the material consequences of an act and the person or persons who committed it, but the spiritual forces that were set in motion or broken. In Acholi, this is expressed as kir (an abominable social act/taboo) and cen (polluting death-like spirits including vengeful ghosts). This dual notion of crime means that appropriate remedy responds to the victim's need for safety, care for health consequences, pregnancy, spiritual cleansing, social restoration, and her violated rights. An appropriate remedy is seen as cleansing impurity and punishing the perpetrator. Unfortunately, the most common scenario after rape does neither.

Institutional trust and boundaries of moral jurisdiction

In Acholi there is a deep distrust in institutions of the central Ugandan government to act in their interest. A curious incident in a courtroom is illustrative. The judge requested the fathers of the victim and the alleged perpetrator to stand. He addressed them:

I'm very surprised and disappointed that you have brought this case to me. If I make a ruling on it, one of you will conclude that I was unfair and it will bring no peace between your families. But this should have been a simple thing. Can't you go home, sit under a mango tree together, and settle this issue?

The pair of fathers nodded and made statements in turn about how committed they were to settle things out of court. They had placed enough faith in the court to come that far with their case, but the judge realized that it was insufficient to withstand a negative verdict and sent them home to settle things locally in the interests of social harmony. As stated, only one of the women in this study has had her case heard before a judge. Most mention their lack of faith in the system as the reason, and the handful that has pursued formal justice has been disappointed by corruption and inefficiency.

If the judge or arbiter is seen as within the moral community, confidence is placed in the person or institution to act in the interest of social harmony. Someone from within the moral community is accountable in his or her leadership. If a particular local leader in a village is seen as unfair they are marginalized or replaced. If they are particularly powerful and people are unable to displace them, they will circumvent and avoid his/her (usually his) authority. In the villages where I work, the community's trust in the individuals involved plays a greater role than the office they hold. This is why interventions by NGOs and UN agencies that target training and capacity building interventions by virtue of particular offices such as or LC I – the lowest level of elected political representation – or traditional leaders have limited value and sometimes adverse effects, often strengthening the legitimacy of negative leadership. In one of the villages the LC I is consistently involved in any dispute resolution, even violence such as rape. People can easily monitor whether he is benefitting materially from his position in ways that seem unfair and he has proven himself a useful mediator. The rwot kweri (plural, rwodi kweri), which means “chief of the hoe”, is another category of local leadership. Some people use a discourse of tradition to articulate the rwot kweri's authority. However the origins of a rwot kweri's role are not consistent. In the past, and in some locations today, it is a non-kinship based leadership role to organize communal farming and resolve disputes.11 In more recent history, the rwot kweri became part of the colonial administrative structure and currently in many areas he acts as parallel structure to the Local Council system. In very rural areas with sparse population when an LC I covers a geographically large area, the rwot kweri often acts as a sub-LC I. In theory, there is no relation between the roles of the LC I and the rwot kweri as they are different systems entirely. One is a civil servant, the other is a cultural leader. But in practice their roles are determined according to the community's faith in their leadership and the community's particular needs.

The rwot kweri in the aforementioned village died several years ago. Protocol in such instances is to hold a community meeting and those over 18 vote for a replacement. However, no such meeting has been organized and no one seems particularly bothered. The Vice Rwot Kweri is acting, but passively. The fact that there are “Vice rwodi kweri” is another example of the curious mixing of “traditional”, colonial and post-1986 government administrative structures, in practice and perceptions. In the years I have worked there, the Vice Rwot Kweri has never been involved in any responses to communal injustice. In the second village the rwot kweri is an active role and is frequently mentioned by my informants as the first person they would turn to in case of injustice. These two examples represent the importance of an arbiter of injustice that has earned moral jurisdiction on a local level. When the authority is recognized and trusted, parties accept the outcome of such arbitration, restoring broken social harmony. However, if an institution has legal, but not moral jurisdiction, outcomes of such processes are viewed with suspicion, seen as unfair and usually exacerbate existing tensions.

The Local Council system is an interesting example of initially “distanced” justice that has, relatively successfully transformed into “embedded”. The domestication of the Local Council system is illustrative of the evolving relationship of Acholi with the central government and Uganda as a whole. Initially called the Resistance Councils (RC), they were perceived and often acted as agents of the National Resistance Army/Movement after Musevini's government came to power in 1986.12 RCs were seen as a hostile government's eyes and ears on the ground as well as a means of control that was accountable to the party and not to the people.13 It was intriguing that a number of my informants still refer to the LCs as “Resistance Councilors”, even though their titles changed over a decade ago. Despite the continued use of archaic titles, the attitude toward the LCs’ role has evidently altered with most women reporting that they had or would go to the LC in case they suffered any violence. In most places the LC is not seen as a position of political patronage to the ruling party and a betrayal of Acholi identity, or as a role distant from their moral community. Many LCs, especially at the LC I level, have become firmly embedded within the moral community of his/her village. Despite pervading distrust of government institutions at a higher level, the LC I has often become a useful person to negotiate the peripheral landscape of justice.

One woman's story highlights reoccurring themes in reasoning on response to rape within the murky boundaries of moral jurisdiction. A young tailor was asked by a co-worker to visit his home to take his children's measurement for school uniforms. Upon reaching his house she found him, but no children. He locked the door and raped her. It was especially painful for her since she had been diagnosed with an illness doctors warned could lead to death in pregnancy or if combined with sexually transmitted infections. To avoid this risk, she lived a life of celibacy. This rape was her first and only sexual experience.

Afterwards, she reported the incident to the police, but they were friends with the man and did nothing. Rumors began to spread that she had willfully gone to his home to seduce him. In a small community it was inevitable that she saw the man and his wife on a regular basis. His wife would point and proclaim to everyone within earshot, “That woman is a prostitute! She wants to become my co-wife!” She did not pursue legal action after initial rejection by the police. Like many women, her reasons were based on previous experience. “If the court was fair then I would have taken it to court.” She narrated how she had lost a business dispute she took to court a few years prior. She was certain that the judge had ruled in favor of her opponent because of a bribe. “I thought about how much money he [the man who raped her] would be able to gather to pay the judge, and I knew I would raise less, so I just let it be. I did tell our bosses at work but nothing happened. They did not even fire him. He and his wife are still there.”

Instead she turned to an ajwaka, often translated with the lump term witchdoctor that is inappropriately applied to all people who deal in some way with the supernatural or traditional herbal remedies. I interviewed a woman who is known in her village as an ajwaka but who self identifies as a yat kwaro pa Acholi or traditional healer of Acholi. She told me that sometimes women who have been raped come to her for help. I asked what kind of yat (medicine or remedy) she uses to help them and she almost laughed, “There is no yat [medicine or remedy] for rape!” she exclaimed, “I tell them to go and report to the government so that the man will be arrested!” In this case, the ajwaka was a spirit medium who used his powers to harm those found deserving of punishment. The man summoned spirits that talked through him and granted her request to kill the man. “I was so sad,” she explained,

I wanted to die. I did not want him. Sometimes I wished that he had at least been one of the men that used to try to date me, but he never even bothered trying to convince me. What he did almost killed me more than the sickness that I was diagnosed with … I had the heart to kill him. When the Ajwaka was shaking his things the voice came out and said that I could kill the man. Then a thought came into my mind. The Ajwaka had already confirmed that I could kill him at a cost I could afford [around $50], but then I thought of my mother who has not killed anyone and she's a Catholic. All of us are staunch Catholics. I could kill him and then go to church and ask for forgiveness from God for doing it. But then I thought, I shouldn't kill him because I am also a sinner. The best thing is to go to the priest and confess all the sins that I have committed in my life and just live my life. So I told the Ajwaka I can't kill the man. The Ajwaka was angry and asked me why. I explained that I decided to forgive the man since I also need God to forgive me. When I said this to the Ajwakathe spirit voice he had summoned said, “this woman is so different” and then the Ajwaka told me “you made me call the spiritis but now they are demanding that you kill him, what should I do with the spirits?” I told him, “tell them to go back where they came from. I have forgiven him”.

This woman's response to being raped highlights two key points integral to the observations of this article. She had a deep distrust of the formal judicial system which was based on previous experience. The “traditional” approach to justice had been undermined by the stronger moral claims of a newer authority, the Catholic Church, which led her ultimately to choose spiritual forgiveness. Her response to crime was dictated by the justice vacuum that exists in the space between a functioning and trusted judiciary and local solutions. As she clearly stated, “if the court's were fair, I would have taken him to court”.

Revenge, Christianity and NGOs

The whole system is corrupt and inefficient but we can't do things in our old way. My father and brothers should have beaten him and I should have been cleansed. Instead his family paid a bribe to have him released after only a few days and my parents prayed for me because they are strong Christians. But our ancestors didn't believe in unclean spirits for no reason. I am here without any children because my father refused to do cleansing for me and that man is walking free because the government will not let us do anything and will not do anything themselves.

In the gap left by eroded traditional values and weakened extended family structures other actors have found new prominence: the church, which emphasizes forgiveness and God's monopoly on vengeance, NGOs and LCs. Angelina Atyam who was the chairperson for the Concerned Parents Association, whose daughter spent eight years, as a forced “wife” of one of the LRA commanders wanted in The Hague, powerfully captures the essence of Christian forgiveness and her expectation for justice in the next life. She argues for mercy on the perpetrators of heinous crimes. A central logic of criminal justice is for the punishment to fit the crime. In her view, the only fitting punishment for the LRA leadership has already been accomplished in the crucifixion of Jesus. Nothing less than that is proportional. Her attitude is exemplary of many victims in this justice vacuum who prefer the benefits of putting the past behind them over an expectation of the empty promise of justice in this life. It should be noted, that this does not mean to suggest any official church stance. Certainly, churches do not generally oppose arrests, imprisonment or the formal legal system. However, practically, this is what has been internalized by many of the women in this study about what it means to be Christian and it has often been reinforced by specific messages from the pulpit or counsel from clergy.

A university student described how she had gone to visit a father in the Catholic Church, a trusted family friend, and after drinking a Coca-Cola she woke up six hours later covered in blood and semen in his bed. She forgave him. Her moral decision displayed remarkable fortitude. She retold the words she told him in parting, “You are a man of God but today you have done the work of the Devil.” She has found solace through prayer and handing the responsibility of justice over to God. While her faith and display of mercy were admirable, the man has never been exposed as a result of her conclusion that vengeance belongs to the Lord. He continues to be in a position of authority over a particularly young congregation made up of university students. When asked whether she thought he might repeat what he did to her with other young women in his pastoral care she responded she was sure that he would but did not connect her choice to forgive in silence to enabling him to victimize more women. She had forgiven him, but now more women like her will struggle to know how they should react to rape in this justice no-man's land. In many cases, forgiveness is seen as the only option and some actors have promoted it exclusively.

The church and NGOs with a progressive gender agenda have had competing messages, especially in situations of intimate partner violence, in the case of the former, social harmony and the need for family unity are usually prioritized and, in the latter, equality, a women's right to live free from violence and a fight against impunity. One of the more pervasive effects of NGO interventions is the idea that forced sexual experiences are something to be reported. In most areas of northern Uganda where NGOs have been active in the last decade or so, procedures and referral pathways for the aftermath of gender-based violence have been outlined. Countless trainings have been conducted with stakeholders including LCs, “traditional” leaders, women's group leaders, teachers, police, etc. However despite these efforts they remain “distanced” for most Acholi. Often services are literally distanced and only offered in town centers. Even for many women who have accepted the ideas of NGOs in theory, in practice they rarely act on them. Three women, out of 200 interviewed, knew the lead NGO for their area. When asked what they would do if sexually assaulted most women said they would either tell no one, tell a relative, confide in a spiritual leader or go to their LC. Rape officially falls outside of the problems the LC I has authority to handle; however, whether s/he would follow the appropriate pathway up the hierarchy of authority or deal with the matter locally has much to do with whether or not taking the issue to a higher level is thought to contribute to or undermine social harmony. A “good” LC who is serving their community would have loyalty to social harmony and not to the protocols learned in a workshop, much to the chagrin of NGOs. But if their loyalty was reversed, they would likely be voted out come election time.

The social protection afforded by brothers and fathers has eroded over time due to the war, massive displacement and rapid urbanization, changes in the political landscape and exposure to greater central government control. In this context, revenge is increasingly relegated to the margins. Young women often express their wish that brothers or fathers had beaten the men who raped them. They lamented the constraints of the increasing role of government. With a few older women, they recounted how their fathers and brothers followed the boy who raped them and had beaten him seriously. One was beaten and then forced to dig up a massive termite hill in the middle of the hottest part of the day without wearing clothes. The boy was later taken to the police but released after two weeks because of his father's connections. A woman in her 20s described an incident when she was 13 and still living in an Internally Displaced Persons (IDP) camp when a stranger raped her on her way to the well. Her parents had been killed by the LRA and her caretakers “settled the issue” in her absence. She still doesn't know what they negotiated with his family. If she could have determined the response, she said she would have wanted to be taken for medical treatment, spiritually cleansed by an ajwaka and her brothers should have beaten the boy. “But they weren't there,” she explained.

They had run to Masindi (a district south of the Nile) to avoid being abducted by the LRA. They were only informed much later over the phone of what happened to me, but not until after my stepparents had already settled things in their own way. If my brothers had been there, they would have talked sense and stood up for me.

Revenge has been marginalized in part as a result of dynamics illustrated in the previous young woman's story, and because there is a growing presence and authority of a higher-level authority to which local “solutions” may be held accountable. Although I have not come across anyone being prosecuted for participating in mob justice or witch-killing, many people have expressed that it does constrain violent behavior. Even a few years ago it was not uncommon to hear of police complaining when a criminal was brought to them rather than punished on the spot by the injured party and the surrounding people where the crime had taken place. It is now commonplace for police to intervene in situations of mob violence or to take the object of violence into custody for protection. In the example at the beginning of the article where the thief was caught and beaten, the LC was present and took part, but he instructed people to beat the man below his neck and not to use sticks so as not to kill him. If things had gotten out of hand, the police were a phone call away.

Boundaries of moral community and perception of punishment

The act of rape is a gross violation of a woman's body, abhorrent whomever the perpetrator and her relationship to him. Many might even think that when raped by someone close to her the added violation of betrayal constitutes a more serious crime in the mind of the victim. What I found is evidence that her attitude about punishment is affected by her social relationship to the perpetrator but not in the direction that might be expected. The more distant the relationship between the woman and the man who raped her, the harsher the woman thought his punishment should be.

Within the moral community, immediate family is the smallest and strongest unit, so it is useful to begin by examining the experiences of women who were raped by their intimate partners. Many in the legal sector have told me, and I was unable to find any records indicating otherwise, that no woman in Uganda has ever taken her husband to court for the crime of rape. Marital rape is often part of a broader pattern of spousal abuse and not one of the women in my study who separated from her husband who raped her did so because of his sexual violence alone. However, virtually all of them thought their husband should be punished, highlighting the importance of considering not only what people say they want but what they actually do in the aftermath of injustice. The majority said they wanted him to be put in prison for two to six months. Only a few women who were still in their sexually violent marriages expressed the desire for someone to simply talk to the man, but not punish him, and a few thought an appropriate punishment was separation/divorce, different bedrooms, or denial of sex. There are a host of reasons why they are reluctant to ever take legal action against their husbands. Besides obvious material considerations, there is tremendous pressure to maintain social harmony by keeping the family unified and avoiding public and familial ridicule. However, there are exceptions and I took particular note of them, coming to understand that, when women separated or sought some form of punishment of her husband, at least one of two related conditions existed. First, she had alternative social and material resources that did not make staying with her husband an imperative for her and her children's future social harmony. She could leave the moral community of her husband and create or return to her own. Second, her husband's behavior had become so intolerable that staying with him could in no meaningful way be considered harmonious and she had lost any hope that such harmony could be restored.

As noted above, most women do not leave their husbands unless sexual violence is one of many abuses they suffer in his house. One young woman who has been in a sexually violent marriage for two years, told me that besides his occasional evening violence he's a kind man that does not drink and comes home early. She wishes he would stop, but she said she feels lucky. He takes care of her physical needs and she feels at home with his family. If a woman takes the rare step of breaking the communally sanctioned social harmony of marriage, it is often the case that his unfaithfulness brought sexually transmitted infections into their home, he was a drunkard, neglected providing for their family, was extremely violent to the children or she had a particularly strained relationship with her in-laws. One woman described how her husband would come home drunk on a regular basis, beat her to near unconsciousness and then rape her. She is now separated, so I asked if that was why. “No,” she explained,

He had been sleeping around and I knew but I tolerated it until I got very sick. Then I sat him down and tried to discuss it with him. But he told me I couldn't rule over him. Then he beat me and went to get a knife to kill me but his father held him back and I ran away.

After spending an afternoon at a woman's house with a friend we discussed our conversation with her as we left. The woman had talked about her husband's sexual violence with palpable resentment. She angrily asserted her wish for the police to arrest him and put him in prison for at least two years. She wondered aloud what evidence is needed in a marital rape case. It was the most serious indication I heard of a woman considering prosecuting her husband. It prompted me to leave her with a phone number of free legal aid focused on gender-based violence. I asked my friend if she thought the woman would use the number. “No,” she said. “She knows the social consequences would outweigh the satisfaction of seeing him punished. But it's good she has it now. In case it worsens she will have another option.”

There is a middle category of offenders, not within the immediate relational circle but on the edges, perhaps within the same village or with some social or distant relational ties. Most of the time in such instances women said they wanted the men to be beaten seriously or imprisoned for some time ranging between two and seven years.

In the case of strangers, including unknown rebels or soldiers, women expressed their desire for (or in the rarer instance where action had been taken, their approval of) expeditious retribution.

If I was the judge of that man I would kill him! Sleeping with me in the bush like that has brought so many complications in my life. I would wish him to be killed nek lomuku [refers to mob justice] I want him to really feel pain when he dies, so he should get hit from all sides. He should not die too fast like with an electric chair or hanging or firing squad. It should be slower. And I would need to be there! Me, I would be the first to throw the stone.

“That man” was a soldier in the UPDF who captured the woman quoted here after she escaped from a year-long forced relationship with an LRA commander. The soldier kept her captive and repeatedly raped her for two months.

For men who are outside their moral community most women suggested an appropriate punishment would be at least seven years and many suggested life imprisonment or death. Discussing their husbands, boyfriends or in a few cases relatives or close family friends women would often pause to think about their answers. In the case of rebels, soldiers, or other unrelated men there was no hesitation. Most were adamant and had clearly made up their minds before the question was posed.

Most women offered reasons for their desired sentencing of the crime. In the case of shorter sentences for closely related men the impetus for punishment was, as many women put it, “so that they will learn what they did was wrong”. The correctional motivation of punishment was true even for the aforementioned woman to whom I gave the legal aid number. “I think after two years in prison to think about how he treated me he would come back and behave himself. It would make him respect me if I say no,” she reasoned. From all observations, this is an unlikely result. More probable, the man would abandon her once released from prison or even pursue revenge against her. It is nonetheless the articulated reason for wanting a punishment of men with shared moral community. It is about behavioral change more than revenge. For those with a more distant relationship, the articulation is in terms of retribution. “He took my future when he raped me. He should not be allowed to enjoy the rest of his life. I want his future to be taken from him,” one woman said about a soldier whose identity she never knew.

How women who have survived rape are oriented toward punishment of the aggressor is deeply impacted by whether he is a vital part of future moral community. Similarly, whether punishment is perceived as the maintenance of social harmony or the disruption to it is closely linked with the man's location within the future moral community. One woman lamented how she experienced this reality when she confided in her mother after a boy neighbor raped her. The mother took her for a health check-up and to be tested for sexually transmitted diseases and pregnancy but refused to report the rape to any authorities or to confront the boy and his family because his mother was her best friend. The importance of social harmony trumped even her daughter's wishes and right to justice.

Conclusion

In northern Uganda, on the periphery of justice between local solutions and formal judicial systems, responses to crime or other wrongdoing include extraordinary displays of both forgiveness and brutal violence. Despite the manifestations of these apparently contradictory phenomenon, they are consistent expressions of the value and need for social harmony. In some situations, moral forgiveness presents itself as the best, or only, option. In others, the wellspring of all injustices suffered explodes on catchable perpetrators whose beating or death poses little or no threat to social harmony and in some way protects it.

The particular cocktail of selective mercy and brutal violence that exists in this space does not satisfy the demands of justice. However, this space has the potential to be transformed by justice actors that have moral jurisdiction. Existing embedded approaches to justice that have moral jurisdiction might be strengthened and evolve to better realize the needs and rights of women. Distanced justice approaches, national and international judicial bodies, might develop and act in ways that gain moral jurisdiction from those most affected by injustice, effectively embedding themselves. When distanced justice becomes embedded it contributes to, rather than undermines, social harmony and makes disruption to social harmony less dangerous. Careful analysis avoids the misinterpretation of a desire for punishment of wrongdoers as an invitation to practice distanced justice. Rather, with attentive listening, a different invitation can be heard in the voices of my informants: for the practitioners of now distanced justice to gain moral jurisdiction: “if the courts were fair, I would have taken him to court”.

Notes

1. The quote is from one of a series of interviews I conducted with her in June 2008 for “No Cheap Forgiveness,” in “The Quest for Reconciliation,” an unpublished volume edited by Dean Peachey. All other direct quotations of women are from author's interviews and participant observation during this study. Specific dates are not included for confidentiality.

2. Brunk, “Restorative Justice and the Philosophical Theories of Criminal Punishment,” 31–56; Zehr, Changing Lenses.

3. See, for example, Allen, “The Violence of Healing,” 101–28; Allen, Trial Justice.

4. See, for example, Pain, The Bending of Spears; Justice and Reconciliation Project, The Cooling of Hearts; Hovil and Quinn, Peace First, Justice Later; CSOPNU, The International Criminal Court Investigation in Northern Uganda.

5. For examples of in-depth discussions of (and different perspectives on) such rituals see: Allen, “The International Criminal Court and the Invention of Traditional Justice in Northern Uganda,” 147–65; Atkinson, The Roots of Ethnicity; Finnstrom, Living With Bad Surroundings; Harlacher et al. Traditional Ways of Coping in Acholi; Girling, The Acholi of Uganda; Ocitti, African Indigenous Education; p'Bitek, Artist the Ruler; p'Bitek, Religion of the Central Luo.

6. See, for example, Allen, “The International Criminal Court and the Invention of Traditional Justice in Northern Uganda,” 147–65.

7. International Center for Transitional Justice (ICTJ), http://www.ictj.org and African Transitional Justice Research Network, http://www.transitionaljustice.org.za. Cobban, Amnesty After Atrocity?, Teitel, Transitional Justice and Moon, Narrating Political Reconciliation, among others, have consistent elements to the definition as phrased here.

8. The legal notions and Acholi social interpretations of rape inform this work, however they deserve much more attention than the scope of this article allows and are discussed in detail in “Acholi Love” and “Consent and Rape: When Does ‘No’ mean No?” draft papers by the author. See also p'Bitek's earlier essay of the same title, “Acholi Love,” 29–33.

9. Allen, “The International Criminal Court and the Invention of Traditional Justice in Northern Uganda,” 147–65.

10. Gready, “Analysis: Reconceptualising Transitional Justice,” 3–21.

11. See Girling, The Acholi of Uganda, 193.

12. Branch, “Exploring the Roots of LRA Violence,” 25–44.

13. See also, Finnstrom, Living With Bad Surroundings, 94–7.