By Dr Obote Odora

14^th May 2012:

African leaders: Do they fear ICC?

The International Criminal Court (ICC) is in the news again – thanks to an attempt by the East African Legislative Assembly (EALA) to block the trial of four Kenyans (the Ocampo Four) at The Hague based court.

The ICC is also in the news at the continental level.  In a press release issued on May 7, the African Union (AU) said it had directed its legal committee (on which Uganda sits) 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.

Uganda’s Role

In both these cases, Uganda is playing a pivotal role in attempts to deny the ICC jurisdiction to prosecute African leaders for serious crimes they commit against their people. In pursuit of this agenda, Uganda has thus adopted a two-pronged approach shown above: expanding the jurisdiction of the East African Court of Justice, and that of the African Court.

Under the first prong, Mr Dan Wandera Ogalo, a Ugandan member of the EALA recently moved a motion seeking the adoption of a resolution demanding a referral of the Ocampo 4 from the ICC to the East African Court of Justice (EACJ).  To understand the significance of this move, it’s important to remember that the case against Ocampo 4 has nothing to do with Kenya and Uganda as states.  It is premised on the individual criminal accountability by the Ocampo 4.

Kenya and Uganda therefore have no right to appear before the ICC, 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.  That notwithstanding, the EALA proceeded to adopt the Ogalo motion and resolved to have the Kenya cases at the ICC transferred to the EACJ after appropriate amendment of the EACJ statute.

An Exercise in Futility

As an experienced lawyer and a member of the EALA, Mr Ogalo 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 only has jurisdiction on matters of interpretation and application of the East African Treaty as provided under Article 27.

The EACJ has no jurisdiction to try international crimes.  The EACJ also 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 which has no jurisdiction?

Even if the EACJ statute is amended as outlined in the motion, it may take several years before the court becomes operational, probably long after the trial of Ocampo 4 has begun, or even concluded.

Possible Motive

So why did the EALA support such a reckless move?

In my considered opinion, the answer lies in the motives of Uganda’s rulers.  The motive behind the move to amend the court’s jurisdiction is not really to ‘help’ the Ocampo 4, but to protect the National Resistance Movement (NRM) leadership.

Remember, Mr Ogalo, while nominally a member of the opposition Forum for Democratic Change (FDC), he has often, in the name of bipartisan politics, worked very closely with the NRM leadership.  We all know that in Uganda today, for a small fee, Members of Parliament have voted to support the government’s agenda even when it is detrimental to the interests of the general public.

For example, for a fee of 5million Shillings, they amended the constitution to remove term limits for the presidency.  They also, including some in the opposition, voted for a supplementary budget on the eve of a general election for a fee of 20million Shillings to ‘facilitate’ their political activities.

I am not suggesting that Mr Ogalo was paid to move the motion in the EALA.  What I am saying is that based on what Ugandan politicians have been known to do for money in the past, it remains an open question whether or not Mr Ogalo was paid to move the motion.

The AU Route

In the event that the EALA route fails, Uganda will resort to the African Union route to block the ICC from handling cases from the continent.  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 by establishing an African Court that can be manipulated by national governments through the appointment of judges, control over prosecutorial activities, and by 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 in 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 judgement 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 defence they can put forward.

With the ongoing trial of Jean Pierre Bemba, there must be some soul searching going on in Uganda. Top NRM international criminal lawyers, including those representing Uganda on the AU’s Legal Committee of Experts, must be following the Bemba trial at The Hague very closely.

To compound Uganda’s anxiety, there is credible evidence suggesting that Bemba’s army (MLC), which allegedly committed crimes in the DRC and later in Central African Republic (CAR) received critical support from the Ugandan leadership and the UPDF in particular.

Prof Filip Reyntjens in his book The Great African Wars: Congo and GeoPolitics, 1996-2006, (Cambridge University Press, 2009) discusses the role played by senior UPDF offices, including the support Uganda extended to Bemba in the Ituri region of DRC.  Museveni’s young brother Gen. Salim Saleh was, for example, reported to have had close business and military relationship with Bemba.

Brig (now Lt. General) Kale Kayihura was also the UPDF Commanding Officer in the Ituri region of DRC, the epicentre of international crimes committed by MLC and UPDF at the relevant time.  When Kale Kayihura and his troops were captured in Ituri, it was Gen. James Kazini (deceased) with support from Bahema militia who rescued him. During and after the Kayihura rescue, the Bahema militia massacred the Balendu as the UPDF looked the other way.

The Conclusion

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 support the ICC.  END.  Please login to www.ugandacorrespondent.com every Monday to read our top stories and anytime mid-week for our news updates.

Dr Odora is consultant in international criminal and humanitarian law