Uganda gambles on pan-Africanism for redemption in $10b DRC plunder case

When lawyers stumble, only their clients fall. When governments stumble, states don’t fall but the consequences are usually extreme, and burdens are sometimes passed onto governments to come.

The German Federal Government for example, years after World War II ended, continues to pay unparalleled reparations to Israel and Jewish victims of the Third Reich/Nazi aggression. An estimated Shs166 trillion ($61 billion) had been paid out, for example, by 1998.

Aggression in the context of international law is defined as the use of force by one country against another, not justified by self-defence or other legally recognised exceptions.

In the same year (1998), Uganda invaded and for almost four years occupied a sizeable territory of neighbouring Democratic Republic of Congo (DRC) in the name of stamping out rebel outfits, notably the LRA and ADF, operating in the eastern region.

The episode, which attracted widespread disapproval both home and away, would later be raised to the International Court of Justice (ICJ) which then described it an act of aggression.
Consequently, Uganda was compelled to compensate DRC of an unspecified figure, but the working sum for negotiations was/is Shs27 trillion ($10 billion)-the sum almost half the size of [Uganda’s] current GDP at market price (Shs68,407 trillion).

Deferred to 2015
Negotiations between the two countries over the payment have been lukewarm since the court judgment in 2005.

They were, however, ignited late last month and officials from the two countries met in South Africa but middle ground was not reached. The Permanent Secretary in the Foreign Affairs ministry James Mugume told Sunday Monitor in an interview shortly upon return that, talks had been deferred to 2015.

“Such kind of negotiations is not hurried owing to their sensitivity,” Ambassador Mugume noted. “First, we have to agree on an international criterion for the negotiations, layout parameters for payments which must be approved.”

Kampala from the onset vehemently contested the figure but Attorney General Peter Nyombi recently in an interview with this newspaper revealed that Kinshasa had now sent a revised bill of Shs62.6 trillion ($23 billion), and accompanied it with a trove of documents to justify the amount.

Both Mr Nyombi and Ambassador Mugume seemingly reading from the same script, however, exuded optimism that the matter could be resolved amicably because the two countries are like “brothers” and have a cordial relationship ingrained in history.

Uganda is renowned “big brother” in the region and a champion of the pan-African ideology that bolsters solidarity of Africans for African problems. In fact, DRC president Joseph Kabila has on numerous occasions run to Kampala for counsel in the face of turmoil at home.

However, Uganda lost the case brought against it at the ICJ by DRC for plunder of its natural resources after defence lawyers stumbled. A senior official at court told this newspaper recently that the mistake made by the defence attorneys was avoidable but once the payment is approved, “the damages to be paid to Congo will affect the lives of Ugandans who pay taxes”.
Authorities at the DRC embassy in Kampala declined to comment on the matter.

In the fall of 1998, Uganda together with Rwanda and Burundi invaded DRC under the pretext of sorting out rebel outfits sheltered in the remotely and mostly forest covered eastern region. According to documents filed at the ICJ at The Hague, Netherlands, the occupation goes back to events of 1996-1997 during the struggle to overthrow the dictatorship of then Mobutu Sese Seko.

After the military coup anchored by late DRC president Laurent Kabila, the three countries that had supported the struggle in yield, would gain some ground in Congo to neutralise rebel outfits , Hutu (Interahamwe) rebels and Lord Resistance Army (LRA), respectively.

In fact, Uganda argued later in Court that after taking power; between May and July 1998, president Kabila cut off his erstwhile allies and instead “established new alliance” with Sudan, Chad and several anti-Ugandan insurgent groups.

In August, the three countries invaded Congo, markedly in a region famous for vast resource wealth-cooper, diamonds, gold, and trees for timber, name it. In the 288 page application filed December 1999, it was noted that the trio seized the moment to themselves and instead claimed the deployment was meant for border security against insurgent groups apparently backed by the late Kabila.

Uganda’s military on its part occupied gold-rich areas of Watsa Territory, a site said to be home to three mainstream gold mines -- Agbarabo, Gorumbwa and Durba. A Human Rights Watch Group report published at the time quoting geological estimates indicated that “nearly one ton of gold was extracted from this region during the four-year period of Ugandan occupation”.

Based on price estimates of the time, the value of gold plundered was said to be $9 million (Shs24.5 billion presently). Uganda was found to support a local rebel outfit-Rally for Congolese Democracy - to fuel instability in the area.

In 2000, the UN Security Council got concerned of “deadly war” in Congo, the second heaviest in the country’s history and appointed a panel of 11 experts to explore the matter; including the role of natural resources in flaring the conflict.

In the first report issued in April 2001, the panel pinned several top brass in the Ugandan military, notably Gen Salim Saleh (then Lt Gen), the late Maj Gen James Kazini, (then Colonel), Brig Noble Mayombo, Rtd Maj Gen Kahinda Otafiire (then Col) and then Col Peter Kerim. Private individuals included Sam Engola, Jacob Manu Soba and Mannase Savo; and rebel politician-cum-administrator Prof Wamba dia Wamba.

“The objective of the elite network in the areas controlled by Uganda has been to exercise monopolistic control over the area’s principal natural resources, cross-border trade, and tax revenues for the purpose of enriching members of the network,” the report observed.

Amidst fury from the international community, then Foreign Affairs minister Amama Mbabazi flew to New York to contain verbal artillery at the United Nations. In order to wash its hands clean, government established a separate inquest into the matter led by Justice David Porter.

The Porter Commission report issued in November 2002 confirmed pillage of DRC’s resources; but exonerated government and the military from any official involvement in the plunder but absorbed the same officials named by the UN. The commission recommended disciplinary action against Kazini and criminal investigation against Saleh.

Such action would, however, only be sanctioned by the President. Supporting documents sent twice by the commission to the Ministry of Foreign Affairs were said to have got “lost” on the way. The recommendations suffered a natural death.

One undoing by the defence team led by an American lawyer, Paul Reichler, and then Attorney General Bart Katureebe at the trial was the submission of the Porter report as part of its evidence for defence.

It would appear that whilst government acted in haste to clear the names of those close to the centre of power, it inadvertently ended up selling out the country legally.

ICJ is one of the six organs of the United Nations, and its verdicts are final and binding on states such as Uganda that submit to its jurisdiction.

The court also rejected Uganda’s claims of acting in defence to occupy another country to stamp out dissidents.

Uganda had cited a series of attacks such as the 1998 attacks Kichwamba and Kasese, as evidence and further maintained that they had a formal agreement with DRC to deploy in DRC, a fact the latter did not deny but said the occupation was outside international law.

Retired career diplomat Harold Acemah, who has been keenly following the events, is of the view that government still has hopes of settling the matter harmoniously, which explains why they have never been serious with negotiations.

“Court gave the two room to negotiate, arrive at substantive figure but Uganda has never been about this because of its big brother attitude in the region,” Mr Acemah noted. “It’s in Uganda’s interest to engage Congo seriously otherwise delay means that we are leveraging the country.”

He nonetheless point to the fact that the two enjoy mutual relationship but payment is way of “Uganda accepting culpability” because Congo lost people, resources and situation was generally distressing.

During hearing of the case, Uganda made a counter-claim that DRC forces ransacked Uganda’s embassy in Kinshasa and maltreated its diplomats at Ndjili International Airport on August 20, 1998, in violation of the Vienna Convention on Diplomatic Relations; a fact that court took into account but ruled it was not partly as a result of the occupation.

The court, according to a senior official at the ICJ, currently awaits the outcomes from the negotiations of the two parties to make a final ruling and submissions are expected next year.

But yet Kampala is determined to resolve the matter melodiously, the change of government in Kinshasa (if Kabila does not seek a fourth term) could also haunt Uganda as is the payment.
But like the Court said: “The political climate between states does not alter their legal rights.”

The December 2005 world court ruling

“The Republic of Uganda, by acts of looting, plundering and exploitation of Congolese natural resources committed by members of the Ugandan armed forces in the territory of the Democratic Republic of the Congo and by its failure to comply with its obligations as an occupying power in Ituri district to prevent acts of looting, plundering and exploitation of Congolese natural resources, violated obligations owed to the Democratic Republic of the Congo under international law… and unanimously, decided that failing agreement between the parties, the question of reparation due to the Democratic Republic of the Congo shall be settled by the Court…”

According to media reports, Uganda had by the time of the judgment paid foreign lawyers representing it Shs2.3 billion ($865,000) besides expenses of the Attorney General and other officials who regularly flew to The Hague.

THOSE ACCUSED OF PLUNDER IN THE REPORT

Rtd Gen Salim Saleh: He is President Museveni’s brother and currently his adviser on military matters and a high ranking official in the UPDF ranks.
Maj Gen Kahinda Otafiire: The NRA Bush War hero is currently the Ruhinda County MP and Minister of Justice and Constitutional Affairs.

Brig Noble Mayombo : A Bush War hero, he died in 2007.

Maj Gen James Kazini : The Bush War hero and former army commander died in 2009.

Brig Peter Kerim: He died in 2012 while serving as deputy commander of the UPDF Reserve Forces.

Sam Engola: He is currently the State minister for Housing