Uganda

Kampala War Crimes Court Under Scrutiny

Critics point out major flaws in new judicial body – an apparent attempt to circumvent International Criminal Court.

By Rosebell Kagumire in Kampala (AR No. 188, 29-Sep-08)

The first moves to create Uganda’s first war crimes court have generated controversy and doubts about its credibility and purpose.

In May, three judges were quietly named to a special Ugandan tribunal intended to put Joseph Kony and other top commanders of the rebel Lord’s Resistance Army, LRA, on trial for war crimes and crimes against humanity.

The commitment to create the court was contained in the reconciliation and accountability annex to the peace agreement negotiated early this year between the Uganda government and the LRA.

The annex was signed by the government and the LRA on February 19 in Juba, the capital of South Sudan. The final agreement, two years in negotiations, remains unsigned.

How Kony and the LRA commanders will be tried, either by this special Uganda court or the International Criminal Court, ICC, in The Hague, remains the major stumbling block to further negotiations.

Kony and two of his top commanders face ICC charges of war crimes and crimes against humanity for their role in the rebel war that consumed northern Uganda from 1986 to 2006. The charges focus on events in 2003 and 2004, considered to be the most intense years of conflict.

Kony has vowed not to sign the deal until the ICC indictments are lifted, which the ICC has shown it is not prepared to do. However, some close to Kony have suggested that he may be willing to face a Ugandan court on the charges.

The annex agreement indicated that court would address serious crimes and human rights violations of the past two decades in northern Uganda. This includes crimes allegedly committed by the Ugandan army as well as the LRA.

Launched in May, the court still lacks an office or a courtroom, or a budget and the other necessities, and this has sparked worries.

“We are in a formative stage,” explained one of the judges, who agreed to talk to IWPR only if his anonymity was guaranteed. “We put up the court to kind of break the [deadlock] to show [that] we are ready whenever everyone [else] in this matter is.”

But the court has a long way to go, agreed the judge.

“We’re not ready to try anybody,” he said. “We don’t know even whether investigations into the crimes that we’re to try have started.”

If the court is to be effective, police must be trained to investigate war crimes, continued the judge. Likewise, prosecutors and defense lawyers need to be trained on how to prosecute and defend the accused.

The major stumbling block facing the court is that no one knows what kind of crimes will be handled because the Ugandan parliament has not adopted laws on prosecuting genocide, war crimes and crimes against humanity – the crimes currently covered by the ICC.

“We have no law yet,” said the judge, “which means we don’t know what crimes the court will handle and which people shall be arraigned.”

Caleb Alaka, a Kampala lawyer who has represented Kony and the LRA, said the special Ugandan court was created as an alternative to putting Kony on trial in The Hague.

"The creation of this court came about because it was a way to subvert the ICC,” Alaka told IWPR.

He criticised the Ugandan judiciary for appointing the court without the necessary legislation to support it.

"With all due respect, the judiciary rushed to set up this court,” said Alaka. “They can't even define a war crime or how the hearing will be conducted."

Sentencing guidelines are lacking, yet crucial if the court is to be a success, he said. The problem is that the ICC does now allow execution of convicted criminals, but Ugandan law does.

Alaka said the special court should be independent and not a branch of the Uganda’s supreme court –
which will require a constitutional change.

Alaka criticised the court for lacking an appeals process and insisted that it should put Ugandan army officers on trial as well, not just the LRA.

"There are two parties in the conflict,” said Alaka. “If it is to be regarded as a war crimes court and to be fair, it must cut across all parties. You can't say [Ugandan] officers implicated will be tried by the military court."

Ugandan president Yoweri Museveni, however, has refused to agree to this, saying that the army’s courts martial system is sufficient to handle the prosecution of crimes among its ranks.

Likewise, the ICC has indicated that it will not pursue crimes allegedly committed by the Uganda army because they don’t compare in severity to those of the LRA.

Not all agree.

Amnesty International released a report in March that criticised the exclusion of Ugandan soldiers from the court’s jurisdiction.

“The international crimes committed by armed forces shouldn’t be tried by the military courts since they took place during the conflict,” said the report. “You can’t try crimes committed parties in the conflict in different courts.”

Ugandan army soldiers have been accused of rape, forced displacement, murder and use of child soldiers.

Morris Ogenga Latigo, leader of political opposition to Museveni in parliament, said that the purpose of the peace talks was to end the rebel war and begin reconciliation, not pursue retribution.

“To have this special court is basically a manoeuvre by the government to get Kony to give in to the peace agreement,” charged Latigo.

“[The] government was stuck with the ICC, and it sees this court as the only way to show they don’t accept impunity.”

Because as the final peace agreement has not been signed by the LRA or the government, Latigo said it may be too early to pass laws that would regulate the court.

“We cannot legislate in anticipation,” said Latigo. “The legal process will only commence once there’s a peace agreement in place.”

Judging from recent attacks attributed to the LRA, which is now holed up in the Democratic Republic of Congo, Latigo doubted that the agreement would be signed any time soon.

The LRA recently abducted an estimated 90 school children from Duru, a community close to the LRA’s base, and also attacked a military outpost of the South Sudan army.

This prompted Ugandan state minister for defense, Ruth Nankabirwa, to say that Uganda would no longer agree to press the ICC to withdraw the warrants against the LRA commanders.

The Ugandan government has not formally made such a request, although a delegation from the LRA traveled to The Hague earlier this year and asked the ICC to withdraw the indictments.

"These attacks have proven that the LRA is not serious about pursuing the comprehensive peace agreement that both government and the rebels are to sign," said Nankabirwa.

"Of course we are going ahead to implement parts of the peace agreement, especially resettling people living in internally displaced people's camps back to their villages."

Latigo, however, said that what the LRA did was nothing new and should not change previous government positions regarding the peace agreement.

“What the LRA did in the Congo is what they have done for years in Uganda, and therefore doesn’t change the basis of negotiations,” he said.

“It makes no sense for a minister whose government is still hoping Kony signs a peace deal to engage in such extreme outrage.”

Rosebell Kagumire is an IWPR-trained journalist.