Court Maneuvering Exposes Uganda’s Hidden Agenda: Evading ICC Jurisdiction
[Not Above The Law]
The international Criminal Court (ICC) is in the news again in East Africa. This time, the East African Legislative Assembly, which is the East African Parliament, seeks to block the trial of four Kenyans at The Hague. The process adopted is flawed but the East African Parliament is still determined to proceed with the futile task.
The international Criminal Court (ICC) is in the news again in East Africa. This time, the East African Legislative Assembly, which is the East African Parliament, seeks to block the trial of four Kenyans at The Hague. The process adopted is flawed but the East African Parliament is still determined to proceed with the futile task.
Separately, the ICC is also in the news at the continental level. The African Union (AU) has directed its legal committee drawn from Malawi, Gabon, Uganda, Liberia and Libya to review the Africa-ICC relationship with a view to expanding the jurisdiction of the African Court of Justice and Human and Peoples’ Rights (African Court) so that the court can have jurisdiction over international crimes.
In both instances, Uganda is playing a pivotal role in the effort to deny jurisdiction to the ICC to prosecute serious crimes committed against the African people by their rulers. In this process, Uganda has adopted a two-pronged approach: expanding the jurisdiction of the East African Court of Justice and that of the African Court with the sole purpose of opting out of the ICC jurisdiction.
Under the first prong, Mr. Dan Wandera Ogalo, a Ugandan member of the East African Parliament recently moved a motion seeking an adoption of a resolution demanding a referral of the Kenyan cases, also known as Ocampo 4, from the ICC at The Hague, to the East African Court of Justice (EACJ) at Arusha. The cases are all for alleged crimes against humanity committed in 2007-2008 after the Kenyan elections.
The case against Ocampo 4 is premised on individual criminal accountability and has nothing to do with the responsibility of Kenya as a state or that of its government, the East African Community, Ogalo or Uganda. Indeed, Ogalo, the Republic of Kenya and its government or the East African Community are not party to the proceedings at the ICC and they have no right to appear before the court except as victims or friends of the court (amicus curiae) and only after an application to appear as such is granted by the Trial Chamber.
However, the East African Parliament proceeded to adopt the Ogalo motion and resolved to have the Kenya cases at the ICC transferred to EACJ after appropriate amendment of the EACJ statute.
This futile attempt must be put in context. Mr. Wandera Ogalo, a 1980 law graduate from Makerere University is a practicing advocate before the courts of Uganda. As an experienced lawyer and a member of the East African Parliament, he is expected to be conversant with the laws of the East African Community, the court’s statute and its rules of procedure and evidence. He must also know, or at least is expected to know, that the EACJ has jurisdiction only over interpretation and application of the East African treaty as provided under its Article 27.
The court has no jurisdiction to try international crimes. Further, the EACJ has no investigative and prosecutorial capacity; it has no standing before the ICC and it has neither the capacity nor the expertise to entertain international criminal matters. So, why did Mr. Ogalo introduce a motion seeking the transfer of the Ocampo 4 from the ICC to the EACJ – a court that has no jurisdiction? Additionally, even if the EACJ statute is amended as outlined in the motion, it may take several years before the court becomes operational and long after the trial of Ocampo 4 have begun or concluded. So, why did the East African Parliament support such a reckless move?
The answer lies in the motives of Uganda in seeking amendment to the EACJ statute. The objective of the amendment of the court’s jurisdiction is not to "help" the Ocampo 4 but to protect the National Resistance Movement (NRM) leadership. Mr. Ogalo, while nominally a member of the opposition Forum for Democratic Change (FDC), has often, in the name of bipartisan politics, worked very closely with the NRM leadership of Uganda. Moreover, he is a member of the East African legislative body on behalf of Uganda not the opposition.
In case the East African Community route fails, Uganda intends to achieve a similar objective through the African Union. In a bid to block the ICC from handling cases from the continent, a team of legal experts are tasked to recommend a common position to be taken by the AU towards the Hague-based court notwithstanding that not all members of the AU are party to the Rome Treaty. Under the guise of universal jurisdiction, the AU, spearheaded by Uganda in the legal committee of experts, is determined to evade the long arm of the ICC jurisdiction by seeking to establish an African Court that can be manipulated by national governments through the appointment of judges, control over prosecutorial activities and providing a limited budget.
A weak and compliant court is in the best interests of leaders who fear they may be prosecuted at the ICC. The Ugandan leadership has good reasons to fear such prospects. As the evidence unfolds at the trials at the ICC, witnesses will disclose the participation of individuals, including those who supported the various militias during the armed conflicts in the Democratic Republic of the Congo (DRC).
The recent judgment in the Thomas Lubanga case has forced the leadership of a number of armies that fought in the DRC to re-examine their roles, re-assess or re-evaluate their culpability and determine whether the crimes they committed fall within the temporal jurisdiction of the ICC and if so, what possible defense can they put forward. Again, with the ongoing ICC trial of Jean Pierre Bemba, there must be some soul searching going on in Uganda and elsewhere in Africa. Additionally, the Case Concerning Armed Activities in the Territory of the Congo/DR Congo v Republic of Uganda (Judgment of 19 December 2005) is particularly disturbing for Uganda. Top NRM international criminal lawyers, including those representing Uganda on the AU’s Legal Committee of Experts, must be studying this judgment very closely as well as following the Bemba trial at The Hague.
To compound Uganda’s anxiety, there are credible evidence suggesting that Bemba’s army (MLC), which allegedly committed crimes in the DRC and later, went on to commit serious crimes in Central African Republic (CAR) received critical support from the Uganda leadership and the UPDF. Professor Filip Reyntjens in his book The Great African Wars: Congo and Geopolitics, 1996-2006, (Cambridge University Press, 2009) discusses the role played by Uganda's army, Uganda People's Defense Force (UPDF) senior officers including support Uganda extended to Bemba in Ituri in the DRC. The officers included individuals such as Gen. Salim Saleh, who had a close business and military relationship with Bemba; and Brig (now Lt. General and Inspector General of Police) Kale Kayihura who was the UPDF Commanding Officer in Ituri region of DRC, the epicenter of international crimes committed by MLC and UPDF at the relevant time.
When Brig. Kale Kayihura and his troops were surrounded and then captured in Ituri, it was Uganda's Gen. James Kazini, now deceased, with the support of the Bahema militia, who rescued him. During and after the Kayihura rescue, the Bahema militia massacred the Balendu as the UPDF looked the other way.
Further, as documented by Reyntjens, the Uganda’s occupation of the Ituri region led to armed conflicts between Bahema (of Ugandan origin and a close ethnic group to Museveni’s Bahima) and the Balendu who have been living in the region longer than the Bahema. The UPDF’s support of the Bahema against the Balendu was critical in the massacre of thousands of Balendu ethnic group.
It is against this background that the Ogalo motion and Uganda’s objective to extend the jurisdiction of the EACJ must be viewed. Similarly, it is in the same context that Uganda’s role in the AU’s Committee of Legal Expert tasked with creating legal conditions to block the ICC from prosecuting the NRM leadership must be appreciated.
As a Ugandan, I urge the NRM leadership not to fight the ICC in my name and in the name of other Ugandans who do support the court.
Dr Obote Odora is consultant in international criminal and humanitarian law
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