Appeal to ICC proof that Opposition is out of options in fight against Museveni

Sunday November 17 2019

Petition. Opposition activist Kizza Besigye

Petition. Opposition activist Kizza Besigye (centre) signs a petition that seeks to drag President Museveni to the ICC. Looking on is Kampala Lord Mayor Erias Lukwago (right). PHOTO BY ABUBAKER LUBOWA 

By Musaazi Namiti

President Museveni’s political opponents have often relied on elections to try to end his vice-like grip on State power, but electoral tactics have signally failed in part because of numerous obstacles the President deliberately piles along his opponents’ political paths, even as he maintains that Uganda is a democracy.
Now Mr Museveni’s opponents are trying a change of tactics. They want to drag him to the International Criminal Court (ICC). But the move raises more questions than it answers and gives the impression that the Opposition is increasingly running out of options and has been outfoxed and outgunned.

The campaign is being led by Kampala Lord Mayor Erias Lukwago, backed by Mr Museveni’s political arch-rival and former presidential candidate Kizza Besigye, and other leading Opposition politicians. Mr Lukwago told reporters that his team had compiled “cogent and overwhelming evidence to support the indictment” of Mr Museveni. He said his team would deliver a “truckful of evidence” to the ICC.
The move is still in the pipeline and will be backed by a petition by Ugandans. But even without the benefit of legal expertise, it is not hard to see that that the campaign has slim chances of success and seems more like a publicity stunt for the politicians involved than a well-thought-out effort targeting a power-hungry President who has done just about anything to cling to power.

The ICC’s founding treaty, called the Rome Statute, grants the court jurisdiction over four main crimes: genocide, crimes against humanity, war crimes and the crime of aggression, which is the use of armed force by a state against the sovereignty, integrity or independence of another state, according to the ICC.

The court deals with crimes committed on or after July 1, 2002, when it began life. If, as Mr Lukwago and his team allege, Mr Museveni has committed crimes that require intervention by the ICC, he has committed them between 2002 and 2019. Anything before 2002 is irrelevant.
I will look at each of the four crimes separately to try to make sense of the allegations made by Mr Lukwago and his team. And I am not trying to say that Mr Museveni has no skeletons in his closet.

Let me begin with genocide, defined by the ICC as the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members. A pertinent question to ask is whether there is any place in Uganda or in neighbouring countries where the government or security forces have committed genocide (as defined by the ICC) between 2002 and 2019?
During the period under review, three major incidents occurred in Uganda that resulted in a significant loss of lives—but they can’t, by any stretch of imagination, be called genocide. The first were riots in Kampala in 2009 over Kabaka Ronald Mutebi’s blocked visit to Kayunga, which left 48 people dead, killed by police and the military, according to Human Rights Watch.
The second incident involved terror attacks by the Somali militant group Al-Shabaab in Kampala in 2010, which killed 76 Ugandans, and the third incident was the boat tragedy in November 2018 that claimed 33 lives.

How about the November 2016 Kasese killings?
Human Rights Watch says research it carried out in 2017 concluded that at least 55 people died on November 26 when security forces attacked King Wesley Mumbere’s palace in Kasese. Fourteen police officers and one crime preventer in six different sub-counties were also killed.
The attack claimed eight more people at the cultural institution’s offices on Alexander Street. On November 27, security forces killed more than 100 people during the assault on the palace compound, according to Human Rights Watch. The death toll included 15 children.
It is not clear who killed the police officers, but their deaths suggest there was fighting. The government has ignored calls by human rights groups to investigate the killings and tell Ugandans what really happened. While human rights groups compiled reports highlighting serious human rights violations, they stopped short of using the term genocide.


Even in parts of Uganda that have seen conflict, charges of genocide can’t stand up to close scrutiny. Between 2002 and 2010, the UPDF was pressing ahead with its offensive against the Lord’s Resistance Army, and the rebels were in disarray, with their leader, Joseph Kony, on the run. The LRA has since been completely defeated, although Kony has never been captured.
Did the troops or the government commit genocide in the north during that period? The answer to this question can be found in the comments the ICC’s chief prosecutor, Fatou Bensouda, made during an interview with Daily Monitor in December 2016.

“When the Ugandan government referred the [LRA] case to the ICC,” Bensouda said, “they talked about the crimes that were committed by the LRA rebels. However, my predecessor [Luis Moreno Ocampo] made it very clear that the investigations or interventions of the court would require that we look at every party in the conflict, and this we actually made it a condition of the referral, and this was accepted.”
When Bensouda went to northern Uganda, she said, people told her they were mainly concerned that the government did not protect them when they were in the IDP camps, which exposed them to attacks by the LRA.
These remarks suggest there is no evidence government troops committed genocide or any other serious crimes in the north, at least not between 2002 and 2010, when the conflict ended.

President Museveni
President Museveni

Crimes against humanity
Enter crimes against humanity. The ICC lists 15 forms of crimes against humanity in the Rome Statute, including offences such as murder, rape, imprisonment, enforced disappearances, enslavement—particularly of women and children, sexual slavery, torture, apartheid and deportation.
This appears to be the only type of crimes where Mr Lukwago and his team, assuming they have overwhelming evidence as they claim, might have a case against Mr Museveni. If they have conclusive evidence that Mr Museveni committed or caused the commission of murders and torture between 2002 and 2019, they can get the ICC prosecutor to launch preliminary examinations, which would set the stage for investigations, pre-trial and trial stages.

Even then, the ICC has to apply the complementarity principle, which means its intervention is complementary to national jurisdictions and comes only when the court is satisfied that local courts are unable to deal with alleged crimes and deliver justice that meets international standards.

How about war crimes
How about war crimes? Uganda has not fought any full-scale war apart from being involved in combat operations in Somalia where it is battling al-Shabaab militants. Since 2007, it has been part of the African Union Mission in Somalia (Amisom), along with other troop-contributing countries such as Burundi, Ethiopia, Kenya, Djibouti and Sierra Leone.
Uganda deployed troops to South Sudan when the civil war broke out there in 2013, but those troops have since returned home. It also has troops in Equatorial Guinea propping up the regime of president Teodoro Obiang Nguema, a friend of Mr Museveni who seized power in 1979 and is Africa’s longest-serving leader.

Given the fact that there hasn’t been any war to fight between 2002 and 2019, it is inconceivable that Mr Museveni can be prosecuted for war crimes, described by the ICC as grave breaches of the Geneva conventions in the context of armed conflict. They include the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.

Crime of aggression
The fourth and last crime—crime of aggression—can’t apply to Mr Museveni considering that Uganda has not fought or invaded any country since its military adventures in the DRC in the late 1990s. (The DRC took Uganda to the International Court of Justice, which deals with disputes between countries).
Mr Lukwago's claims of “truckful of evidence” against Mr Museveni are surprising. It is not clear how he and his team have gathered the evidence, which would ordinarily attract the attention of the international community but hasn’t. Although he seems to attach a lot of importance to the petition that he said would be signed by two million Ugandans, he only needs evidence to make progress.

In the Daily Monitor interview, Bensouda, the prosecutor, said the ICC and her office “moves on evidence and the evidence that we can collect, evaluate, analyse, and present before the judges”.
But the Opposition has in the past failed to provide evidence even when it insists it has it, and that makes many wonder if Mr Lukwago should be taken seriously.
When Dr Besigye lost the 2016 presidential election, for example, he told his supporters that he had evidence that he, not Mr Museveni, won the vote. He repeated that claim in March in an interview with Sunday Monitor.

“They tried; they invaded our headquarters and took it over, hoping to impound anything we can present as evidence of our winning,” said Dr Besigye. “They failed. We, up to today, very assertively claim that we have evidence that we won the election, and that Mr Museveni is in office illegally, illegitimately.”
Dr Besigye has never told his supporters why he doesn’t want to make the evidence public. He has instead called for an international audit of the election results, but it is hard to see why an audit serves any purpose if Mr Besigye has incontrovertible evidence that he won the election.

Another example of the Opposition failing to provide evidence was during the 2016 election petition filed by former prime minister Amama Mbabazi. His legal team filed the petition on March 1, 2016, and had nine days to prepare everything. But they submitted the petition without affidavits, although they said the petition had been accompanied by affidavits.

Chief Justice Bert Katureebe, who headed a nine-member panel of Supreme Court justices handling the petition, couldn’t hide his disappointment. “Either you are serious or not,” he told Mr Mbabazi’s lawyer, Michael Akampurira. “This is a very important petition. You claim in your petition that these affidavits accompanied your petition. Explain to your client why you’re messing up his petition.”
Mr Mbabazi lost the petition, and Mr Museveni continues in office. Although desperate for votes, and is doing things that were unthinkable 20 years ago, such as engaging with drug addicts he thinks will get him votes, Mr Museveni remains a hard political nut to crack.
His opponents and critics are frustrated. Some have died and many have given up. They include—the list is not exhaustive—Milton Obote, James Rwanyarare, Badru Wegulo, Cecilia Ogwal, Aggrey Awori and Olara Otunnu (UPC); Paul Ssemogerere, Nobert Mao, Michael Kaggwa and Lawrence Kiwanuka (DP); Eriya Kategaya, Bidandi Ssali and Miria Matembe (he fired these three in 2003 when they opposed what then was called the third term).

Others are Herman Ssemuju (was a political clown); Chapaa Karuhanga (ran for president once and sank into political oblivion); Beti Olive Kamya (ex critic who was silenced with a job offer); Nelson Ocheger (former Action Party chief and chairman of the Multiparty National Referendum Committee and now diplomat); Abed Bwanika (former presidential candidate); Kibirige Mayanja (former presidential candidate); Mugisha Muntu (head of ANT); Amama Mbabazi (former presidential candidate); Ken Lukyamuzi (retired critic); Kizza Besigye (former presidential candidate); Bobi Wine (hugely popular political toddler).

Even rebels who took up arms against Mr Museveni’s government didn’t go far. They include Alice Lakwena of the Holy Spirit Movement, Joseph Kony of the LRA, Herbert Itongwa of the National Democratic Army, Jamil Mukulu of the Allied Democratic Forces, Amon Bazira of the National Army for the Liberation of Uganda (NALU), Peter Otai of the Uganda People’s Army (UPA) and the Uganda People’s Democratic Army.
Of all Mr Museveni’s opponents, Dr Besigye remains the most formidable and intrepid. But what he and Mr Lukwago are doing suggest they are now clueless about how they can dislodge Mr Museveni.

The writer is a veteran journalist and has previously worked for Al Jazeera as a digital editor in charge of the Africa Desk.