I can’t resist the temptation to react to this item of news that has challenged me. The news item that youths, some colleagues in a political party of which I am a member are threatening to demonstrate at the ICC Review conference arguing that the ICC prosecutor has delayed to respond to their petition in which they want the ICC to try Museveni and others for the killings during the September 2009 riots. http://www.ugpulse.com/articles/daily/news.asp?about=Uganda+opposition+youth+threaten+to+block+ICC+Kampala+meeting+&ID=14600
They have been advised already about this very matter but maybe, they are taking it too far. http://www.ugpulse.com/articles/daily/news.asp?about=Uganda+opposition+youth+advised+on+ICC+matters+&ID=14602
I honestly think as a member of FDC and also a law student who has keen interest in International Criminal Law that there is a small hiccup not with the demonstration alone but also the petition itself. Sad, but I think genuinely and with due respect that these youths, many my personal friends were not advised properly on what the ICC is, its jurisdiction and how its organs work as an international court set up to try international crimes of genocide, war crimes, crimes against humanity and aggression, soon. I respectfully doubt the killings in September 2009 during the “pro-kabaka” riots fit within the limited jurisdiction of the court.
I know that justice should be done, I actually referred to the same killings myself as a “genocide” in an article on this blog but mine was in regard to the intention; I don’t think the dual-genocide was committed though signs indeed were present. https://bwesigye.wordpress.com/2009/12/29/2009-the-year-that-brought-genocide-closer-to-uganda/
Do the killings legally qualify as crimes against humanity? Well, I do not think the requirements of systematic commission and others as set down under the Rome Statute are satisfied. Of course they are not war crimes, because there was no armed conflict legally speaking but is what can be referred to as internal disturbances in International Humanitarian Law and neither was it genocide though some signs were apparent as I argue in my earlier blog article.
I understand that the Ugandan justice system can not be trusted to try Museveni of counseling and procuring murder under our Penal Code Act because of the nature of the DPP’s office and the factor of presidential immunity.
So, I ask, did our colleagues think of the East African court of Justice (EACJ)? Well, the EAC Treaty provides for human rights, and good governance principles as fundamental principles of the EAC and ordering a “shoot-to-kill” policy to armed people who kill others is a blatant violation of the right to life and other antecedent rights, thus is a violation of the Treaty. This streak of argument was used by Mr. Wandera Ogalo in the famous Katabazi and the 22 others case before the EACJ, though the rights in question in that case were not life but freedom and other rights. And Mr. Wandera Ogalo is a senior lawyer of the FDC party, one of the parties in the IPC.
And why not consider the variety of accountability mechanisms in the African system? Uganda has ratified the Protocol to the African Charter establishing the African court on human and Peoples’ Rights, and the IPC youths can even contact the African commission on human and people’s rights on the blatant violations of human rights. Did it really have to be the ICC? Maybe, a step-too-far or too much trust in the ICC. Or, perhaps these youths are learning from Museveni; using the ICC, a judicial institution for political ends, than a genuine search for justice. I am tempted to believe the latter because of the timing of the demonstration and the thought of it alone.
Demonstrations are political than legal tools. You do not expect a legal/judicial decision by demonstrating. And I think that my friends have gotten this wrong. We should not drag judicial institutions to our political wrangles. That way, we strip the judicial institutions of credibility and respect and render them illegitimate. Perhaps, I should have started by asking, do the IPC petitioners to the ICC expect justice or a political goal scored against NRM? Well, I think the tactics are wrong and not noble. And I say this as a proud FDC member and law student, with a keen interest in seeing an international Criminal court free of politicking but sound justice.
I am curious to know what my party (FDC) lawyers have to say about the petition to the ICC. Maybe, the IPC youths should pick a leaf from the advice alluded to above.
Brian Bwesigye (+256782036263)
Final Year law student, Makerere University
Member, Forum for Democratic Change (FDC)
Brian – this is a really interesting post and I agree with a lot of what you say. While Museveni and others who perpetrated the actions that occurred 2009 should be held to account, the ICC is not the appropriate forum for this to be done for the reasons you give: the facts do not fit within the court’s jurisdiction.
However, I’m not sure I agree with your contentions that “we should not drag judicial institutions into our political wrangles”. The ICC may not be the right court to bring into this situation but it doesn’t mean that courts/judicial institutions can’t be used for political ends. Throughout history courts have been instrumental in changing laws and political culture. Indeed the law and courts can be a great tool for political change.