ICC trial looms over Kayihura, Kivejinja

By eriasa mukiibi sserunjogi

Why is the government fighting hard to show that opposition leader Kizza Besigye attacked security first before he was brutally assaulted on April 28?

That is the question many are asking since condemnation started pouring in over the macabre arrest of the Forum for Democratic Change (FDC) leader and the government immediately defended the attackers and attacked the victim, Besigye, as the aggressor.

As opposition protests continue to rock the country and the government appears to support security personnel who brutalise civilians and is reluctant to prosecute them, debate is emerging on ways for the victims to seek justice, including from the International Criminal Court (ICC) in The Hague.

The Minister of State for Internal Affairs Matia Kasaija stoked the flames on May 4 when he told Parliament that “Besigye and his group had intentions to harm the police officers.

“This was exemplified by the pepper spray one of his aides sprayed into the eyes of a police officer while he was holding a hammer threatening the police with the words, ‘I will hammer you’,” said Kasaija.

Third Deputy Prime Minister Kirunda Kivejinja, who is also the minister of Internal Affairs which is responsible for the police, first made the claims on April 30, two days after Besigye’s arrest.

President Yoweri Museveni repeated the claims the same day during a Mindspeak business forum in Nairobi, Kenya and later in an interview with NTV in the same capital.

Museveni, Kivejinja, Kasaija, the Inspector General of Police Kale Kayihura and others all refused to condemn police brutality.

Some officials, like the Chief of Defence Forces, Gen. Aronda Nyakairima and the Coordinator of Intelligence Agencies, Gen. David Tinyefuza, have stopped at conceding “mistakes” by the police.

Legal experts have told The Independent that the government’s refusal to condemn and prosecute its officials, like Gilbert Bwana Arinaitwe and others, could backfire as it could form the basis for taking the case to the International Criminal Court (ICC) in The Hague.

The attacks occurred as the ICC and civil society organisations led by the NGO, Human Rights Network for Uganda (HURINET) were organizing a workshop at Hotel Africana in the capital Kampala.

An official of the ICC’s Appellate Division, Judge David Ntanda, told the workshop on May 5 that under the ICC every state has an obligation to try and punish crimes committed within its territory.

The ICC Field Outreach Coordinator in Uganda, Maria Mabinty Kamara, said the ICC prosecutor can initiate investigations and prosecutions even if the government does not refer the cases to the court or back them.

When asked if the brutal acts of the state and government agencies witnessed recently constitute offences triable by the ICC, retired Supreme Court Justice George Kanyeihamba said: “Obviously.”

He said internal affairs ministers and police commanders are usually most vulnerable for trial because they are the ones directly responsible for handling civilians.

But, Kanyeihamba said, if government is not interested in prosecuting persons involved in human rights violations, independent bodies like civil society organisations should initiate litigation independent of the Director of Public Prosecutions (DPP).

Uganda is heavily involved with the ICC and in 2005 set up an Outreach office and an office for the Prosecutor.

In October 2005, acting on a request by the Uganda government, the ICC issued arrest warrants for LRA leader Joseph Kony and four other top Lord’s Resistance Army commanders for crimes against humanity committed against the people of northern Uganda.

Apart from Judge Ntanda, Kampala lawyer Mc Dusman Kabega is on the team prosecuting the Kenyan ‘Ocampo six’.

This heavy level of involvement with the court, a lawyer predicted, would end in indicting some government or state officials.

Judge Ntanda said the ICC intervenes in cases where “national courts prove to be unable or unwilling to effectively try these crimes or if states appear to be shielding perpetrators”. This inability or unwillingness, the Judge said, can include “shoddy investigations and sham trials”.

A lawyer who declined to be named said as long as some alleged crimes remain uninvestigated and untried, there is a growing possibility that the ICC will get more interested in the Ugandan situation.

This could be the reason government and state officials are “panicking and intimidating the media so that their crimes are not exposed”.

Doctored video

In a bizarre twist, the Inspector General of Police, Maj. Gen. Kale Kayihura who has commanded the brutal crackdown on protestors has attempted to refute media reports on the attack on Besigye.

On May 4 he told journalists covering a three-day lawyers’ strike at the High Court in Kampala that video footage of the violent arrest of Besigye being aired locally and internationally was ‘doctored’.

“We have our own representatives in the media and we captured the true picture of what happened,” he claimed.

Kayihura said the government had sent the media houses (he mentioned the Doha-based Al-Jazeera television) the ‘true” video but they had refused to run it.

The video Kayihura is disputing shows Arinaitwe, whose identity remains unclear although the most credible information says he is an Assistant Inspector of Police attached to the notorious Rapid Response Unit, as he brutalised Besigye in a manner that shocked the nation and sparked protests locally and abroad.

Members of the Uganda Law Society (ULS) joined the protest on May 4 when their President Bruce Kyerere handed a petition to Chief Justice Benjamin Odoki castigating the security crackdown on the Walk-to-Work protesters.

Kyerere told Odoki that in a May 2 extraordinary meeting, the lawyers resolved to “document all incidents of contravention of fundamental rights and freedoms of citizens”. He said some contraventions could amount to “crimes against humanity”.  Such crimes fall under the jurisdiction of the ICC.

Kyerere said the government should hold “security officers and public officials” like Arinaitwe who are responsible for these contraventions accountable.

The video Kayihura is peddling on behalf of the government does not show Arinaitwe brutalising Besigye.

Instead it focuses on Besigye holding a hammer. Parliament business stalled for two days over the video starting on May 4 when an unidentified but armed official entered parliament to show it to MPs.

MPs kicked him out as an “intruder” although the government and Speaker of Parliament Edward Ssekandi shielded him. The video was shown the next day but controversy erupted over an unidentified hooded person who was shown in the media video smashing the offside rear windscreen of Besigye’s car. The hooded man is not in Kayihura’s version.

The government’s account is contrary to the images of what happened at the scene of Besigye’s arrest as captured by different media houses. The Daily Monitor newspaper was the first to publish pictures of a hooded man with a hammer hitting Besigye’s car’s nearside rear windscreen and later running away after losing grip of the hammer. The hammer fell inside the car and Besigye picked it and showed it to journalists.

A journalist on the scene of Besigye’s arrest confirmed to The Independent that the hooded man pulled the hammer out of the pocket of his jacket and pounced.

But the government disputes this account and the Minister of State for Internal Affairs, Matia Kasaija told journalists at Parliament on May 5 that the government would investigate the source of pictures of the hooded man.

“We have the footage all the way from Kasangati to Wandegeya (where Besigye was arrested) but the man with a hammer is not there,” he said.

Observers say the government is keen to dispel images portraying it as brutal locally and internationally.

ICC’s role

Experts say that for the opposition to make its case, it will have to show that the brutal attacks on their members by security agents are either a policy or are tolerated and condoned by the government. Isolated or sporadic abuses are not considered.

Some lawyers said the police have cumulatively shot people in separate incidents but the ICC is reluctant to classify these incidents as crimes against humanity.

In neighbouring Kenya, six senior government officials are currently before the ICC on charges of crimes against humanity based on their alleged roles in the post-election violence there.

The Kenyan officials are being sued based on their alleged individual role during the violence. They include two people accused in their capacity as MPs, a radio broadcaster, a minister and top government security advisor, the leader of a political party, and the head of police.

They are accused of being the principal planners and organisers of attacks against their political opponents, authorising excessive use of police force against the opposition, and organising criminal gangs similar to the Kiboko Squads in Kampala to attack opponents.

Most, like Deputy Prime Minister and Minister of Finance Uhuru Kenyatta, are still senior government officials but that has offered them little protection at the ICC.

The 60-day Kenya post-election violence left more than 1, 100 people dead, 3,500 injured and up to 600, 000 forcibly displaced. Hundreds were raped and over 100, 000 properties destroyed.

Uganda’s post-election violence erupted on April 11. Since then riots have been erupting sporadically but the April 29 clampdown by police was the most brutal. Up to 20 people, including two children and a baby, have been killed and over 150 have been injured; some badly – including a pregnant woman who was shot in the stomach. Most of the victims were clobbered with truncheons and sticks on the head and body and inhaled teargas. Over 400 suspects were arrested.

When asked about how many people must die for a crime against humanity to be deemed to have been committed, Judge Ntanda said the magnitude may not matter much where there is evidence that “someone intended to do harm to humanity.”

The ULS is particularly concerned about the excessive use of force by the police leading to loss of life, injuries to persons and destruction of property. The other “crimes” they cited included the use of live ammunition against unarmed civilians, release of teargas into confined spaces including dwelling houses, school, dispensaries and inside motor vehicles, indiscriminate beatings of members of the public and inhuman and degrading treatment of citizens during brutal and violent arrests.

The ICC tries cases related to genocide, crimes against humanity, war crimes and aggression.

Crimes against humanity must be acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Section (h) deals with persecution against any identifiable group for political reasons and section (k) covers other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Under the ICC, torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused and persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group.

On October 6, 2005, the ICC issued arrest warrants for five members of Joseph Kony’s Lord’s Resistance Army rebels for crimes against humanity.

Their crimes include murder, enslavement, sexual enslavement, rape, cruel treatment of civilians, intentional attacks against civilians, pillaging, and forced enlisting of children into the rebel ranks.

Although some of the crimes sound eerily similar to what the police have meted out on civilians across the country recently, a senior official with an international human rights body based in Kampala says the ICC’s role may at the moment be limited.

“ICC cases are a very delicate legal matter and the standard of proof required is very high,” the official said.