ICC Bill: Why did MPs trap Museveni and save Kony?

By Isaac Mufumba

The International Criminal Court Bill 2006, that was passed on March 10, (more than five years after it was first tabled before parliament) continues to raise eyebrows.

If President Yoweri Museveni approves it, the Uganda’s War Crimes Court will become operational and pave the way for the trial and conviction in Uganda of people accused of war crimes, genocide and crimes against humanity. This is in line with the Rome Statute, which was ratified by Uganda on June 14, 2002.

Issues such as the timing of the passing of the Bill, its contradiction of the provisions of the constitution that grants immunity to a sitting president and the President’s comments about the Bill are attracting a lot of attention.

Deputy Attorney General and State Minister of Justice Fred Ruhindi says the Bill allows the ICC to conduct proceedings in Uganda and to provide the basics for Uganda’s cooperation with the International Criminal Court (ICC) in the performance of its functions including the investigation and prosecution of those indicted for crimes listed under the Rome Statute.

On its face, it paves the way for the prosecution of Lord’s Resistance Army Leader, Joseph Kony, and his Commanders Okot Odhiambo, Dominic Ongwen, who along with their demised colleagues Vincent Otti and Raska Lukwiya, were indicted for their alleged roles in over 2000 killings and 3200 abductions in over 850 attacks committed between July 2002 and June 2004.

The LRA chiefs were indicted in July 2005 after Uganda became the first country to refer a case to the ICC.

But the Bill was passed hardly a month after some youths with links to the opposition, in an unprecedented move petitioned the ICC seeking an indictment of the President, the Chief of Defense Forces, Gen. Aronda Nyakairima, and the Inspector General of Police, Maj. Gen. Kale Kayihura, over the death of at least 30 people during the September 2009 riots that rocked parts of Kampala after Kabaka Ronald Muwenda Mutebi’s visit to Kayunga was blocked.

Not to be forgotten are the pending matters of the April 2001 UN report on the illegal exploitation of natural resources of the Democratic Republic of Congo by Ugandan and Rwandan troops, which named senior Ugandans like Gen. Salim Saleh, Gen. Kahinda Otafire, and their demised colleagues Gen. James Kazini and Brig. Noble Mayombo.

Also pending is the matter of Uganda’s settlement of an order by the International Court of Justice to pay the Democratic Republic of Congo reparations for its five year occupation of the country.

Museveni not safe

The Bill was first tabled in December 2004 but was never debated by the 7th parliament. It was once again tabled on 5th December 2006, making it the first Bill to have taken such a long time to be passed.

So why was it passed at this time, 10 years after Uganda ratified the Rome Statute and 53 months after the first candidates for appearance before the local chapter of the ICC court were first indicted by the ICC?

Why did the House reject the proposed amendment to delete the clause on immunity of the President, contradicting Article 98 of the Constitution?

Why is the President making pronouncements that are legally at variance with the punishments provided for under the Rome Statute?

For the first time in its history, parliament, despite provisions of the constitution to the contrary, passed into law a bill that waives immunity for a sitting President.

Article 98(4) says that ‘While holding office, the President shall not be liable to proceedings in any court’. Article 98(5) adds that ‘Civil or Criminal proceedings may be instituted against a person after ceasing to be President, in respect of anything done or omitted to be done in his or her personal capacity before or during the term of office of that person: and any period of limitation in respect of any such proceedings shall not be taken to run during the period while that person was President’.

Even the ruling NRM’s majority seemed impotent in the face of opposition legislators’ insistence that Article 25 of the Bill, which stripped the President of immunity, be maintained.

Finally, President Yoweri Museveni, whose signature is required to make the Act into law, is openly at variance with its provisions on matters of the punishments that it prescribes for those found culpable of genocide, war crimes and crimes against humanity.

Two days after the Bill was passed, Museveni, while speaking at Kamwokya during the opening of the NRM Communication Bureau, said that the indicted LRA leaders will be tried locally because the Hague ‘will put them in a hotel’ instead of hanging them.

MPs stampeded?

During final debate on the Bill, MP Hussein Kyanjo (Makindye West), raised concerns about what appeared like the House being stampeded into passing the Bill, when many countries are yet to ratify the Rome Statute. But the pace of action on the Bill was quickly defended by the Chairman of the Committee on Legal and Parliamentary Affairs, Stephen Tashobya.

‘110 member states have ratified the statute. I think the move in the international community is to fight impunity and to resist abuse by people in authority; to stop them from killing and maiming people and getting away with it,’ Tashobya said.

Sources within the corridors of parliament say that the Bill was pushed through as part of Kampala’s preparations to host the first review conference, which is highly expected to drastically change the mandate of the ICC.

During the conference, which is to run between May 31 and June 11, the Assembly of State Parties to the Statute is expected to determine how the ICC functions in future and to influence the struggle for global human rights.

Ruhindi dismisses talk of a stampede saying that action on the Bill was actually belated.

‘We ratified it [Rome Statute] in 2002. Immediately we were bound to cooperate with the ICC in prosecuting any person. Besides, it is a legal requirement that international treaties of which Uganda is a signatory are domesticated,’ he says.

Naming the Geneva Conventions of August 1949 which were laid out in the Laws of Uganda in October 1964 and the International Conventions on Civil and Political Rights that came into force in 1995, Ruhindi says that this is not the first time that elements of international law have been domesticated.

In a strange twist, Kampala Central MP, Erias Lukwago, who is also a member of Tashobya’s committee, says the Bill does not portend well as Uganda prepares for another potentially acrimonious general election. He is concerned about the powers the Bill bestows on the office of the Directorate of Public Prosecutions (DPP).

‘Government intends to use the law as an instrument of persecution of people that it perceives to be opponents. The Director of Public Prosecutions has in the past abused his powers and is likely to abuse them again now that it is that office that has the power to sanction charges against those accused of crimes under the bill,’ he says.

But Ruhindi dismisses those fears saying that the scope of crimes to be tried under the Bill is very clear.

On the variance between what Museveni has been saying and what is provided for under the Bill, Ruhindi says that having ratified the Rome Statute which provides for a life sentence as a maximum, and having domesticated it, Uganda is bound to respect the punishments prescribed in the Statute.

During final debate on the Bill, Ben Wacha, while responding to queries raised by Godfrey Ekanya, Hussein Kyanjo and Alice Also on the amnesty clause, said the President could have immunity within Uganda but that does not exclude the powers of the prosecutor or of the Security Council to ask for a reference to the court. ‘So, I am sure even in Sudan, Bashir must be having immunity but it has not stopped the court from going ahead with the proceedings against him’.

The contradiction between what the Bill and the Constitution provide in terms of immunity for the President has since caused confusion in many a circle, but Ruhindi explains that Articles 27 and 120 of the Rome Statute render void any privileges that one may enjoy under their national constitutions.

Article 27(1) of the Statute says that’s ‘This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself constitute a ground for reduction of sentence’, while Article 120 says that ‘No reservations may be made about this statute’

‘Immunity only remains relevant at a national level. Immunity remains legally applicable in Uganda and not beyond’ Ruhindi told The Independent.

No one, it seems, can run from the long arm of the ICC.