The abduction of citizens is crime against humanity

Since late last year, hundreds of Ugandans, mostly members of the National Unity Platform, have been abducted, tortured and detained incommunicado in ungazetted places. Some have appeared before the Court Martial on different charges.

Others have been dumped in swamps and forests (in the middle of the night). Almost all those who have been dumped or released have clear signs of what appears to be mental and physical torture. 

Although the exact number of those who have been victims of these unlawful activities remains disputed, three things are clear. One, these activities have been carried out by State security agencies and in particular the UPDF and CMI. Two, senior military officers and politicians have either approved these acts or have acquiesced in their commission.

This can be inferred from the statements they have made about these abductions. Three, neither the UPDF nor the DPP has shown any interest in prosecuting those who have allegedly committed these crimes. This is understandable because these people enjoy practical immunity from prosecution. 

Uganda ratified the Rome Statute of the International Criminal Court (ICC Statute). The ICC has jurisdictions over four crimes - genocide, war crimes,  crimes against humanity, and aggression. In 2010, the Ugandan Parliament passed the International Criminal Court Act.

This Act domesticates the ICC Statute. Section 8 provides for the crimes against humanity and refers to Article 7 of the ICC Statute for the definition of these crimes. 

Article 7 of the ICC Statute provides that crimes against humanity include torture and enforced disappearance “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’

Article 7(2)(e) defines torture to mean “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.” Article 7(2) defines enforced disappearance to mean “the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.” 

The mistreatment to which NUP members have been subjected to amounts to crimes against humanity of torture and enforced disappearance and to possibly other crimes under Article 7.

The perpetrators of these crimes have the necessary intent and knowledge as required by Article 30 of the ICC Statute. 
Uganda established the International Crimes Division of the High Court. This Division has jurisdiction over, among others, crimes against humanity.  

However, suggesting that the perpetrators of these crimes may be prosecuted before this court would be too optimistic for two reasons.

First, these crimes have been committed with the approval or knowledge of senior military or government officials. They have been committed with the purposes of intimidating and persecuting the opposition and entrenching the government into power.

Secondly, the military is very unlikely to investigate itself or cooperate with any police investigators. The police don’t even know how many people have been abducted and where they are being detained.

These are not just crimes under Ugandan law. They are also crimes under international law. It is indisputable that the perpetrators enjoy practical immunity from prosecution in Uganda. They are above the law. A few, of the many examples, illustrate this. Nobody has been prosecuted for the murder of the famous Boxer (Zebra) and of the several Ugandans in the aftermath of the arrest of Bobi Wine.

This is the case although the President, if we to go by his public statements, is fully aware of the military officers who commanded these operations. 

Mr Mujuzi is a professor of Law, University of the Western Cape, South Africa. [email protected]