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.
