Uganda, ICC And Citizens' Rights

[Global--Africa: News Analysis]

Can citizens refer a case against their sitting head of state to the International Criminal Court (ICC) for investigation?

That's precisely what Ugandans have done and although a government minister in the East African country contends these citizens are out of order the ICC's rules seem to side with citizens.

Last September, dozens of Ugandans were reportedly shot and killed by government security agents -- they were supporters of a hereditary monarch, Kabaka Ronald Mutebi II, whose planned trip to a part of his region was blocked by the government prompting a protest.

On March 1, a group called Youth for Human Rights sent a petition to ICC Prosecutor Luis Moreno-Ocampo demanding that President Yoweri Museveni, in his capacity as commander in chief, as well as the country's police commander Maj. Gen. Edward Kale Kayihura, and Army Commander Gen. Aronda Nyakayirima, be investigated for the September killings.

The petition was signed by youth members from what's called the Inter Party Cooperation, which constitutes Uganda’s major political opposition parties (Forum for Democratic Change or FDC; Uganda People's Congress or UPC; Conservative Party or CP; the Justice Forum or JEEMA; and Social Democratic Party or SDP).

The signatories, states the petition to Ocampo in part, "beseech you to consider instituting criminal charges against the above persons and to cause the arrest of these persons whenever they are found, for this gross violation of human rights and assumption of impunity.”

Moreover, states the petition, the individuals ordered "the use of live ammunition against unarmed civilians, showed no remorse nor regret after the cold blooded murder of at least 42 unarmed civilians by security agencies under their command and showed no intention nor commitment to compensate the victims’ families or kin.”

“When a riot is being quelled, there are casualties but the government never killed people deliberately,” Uganda’s minister of Information and national guidance, Kabakumba Matsiko, countered when contacted by telephone. “There were no deliberate killings of the people. Nobody was killed deliberately.”

“You can’t compare Sudan President and the Ugandan President. These are two different cases,” Kabakumba said, in reference to the fact the ICC has precedent for indicting a sitting president, Sudan's Omar Hassan Al-Bashir. “To take the issue to the ICC they don’t know the procedures” Kabakumba said of the petitioners.

The minister may want to check the facts carefully. It seems that cases can be referred even though that in itself wouldn't result in an investigation.

"Neither referrals, whether by a State Party or the UN Security Council, nor private communications automatically 'trigger' the powers of the Prosecutor. In all cases the OTP must first conduct an analysis of information in order to determine whether the statutory threshold to start an investigation is met: there must be 'a reasonable basis to proceed,'" a spokesperson for the ICC said, in an e-mail message response. OTP refers to the Office of The Prosecutor.

"Where the Prosecutor receives a referral, Article 53 provides that the Prosecutor shall initiate an investigation unless he determines that there is no reasonable basis to proceed under the Rome Statute. However, when the Prosecutor receives a communication, the test is the same but the starting point is reversed: the Prosecutor shall not seek to initiate an investigation unless he first concludes that there is a reasonable basis to proceed," the spokesperson added. "Once a decision to initiate an
investigation is taken, senders of related communications are promptly informed of the decision, with reasons for the decision."

The spokesperson also wrote: "The Statute does not specify what the communication should contain. The Office analyses all communications received and the extent of the analysis is affected by the detail and substantive nature of the information available. If the available information does not provide sufficient guidance for an analysis that could lead to a determination that there is a reasonable basis to proceed, the analysis is concluded and the sender informed. This decision is provisional and may be revised in the event that new information is forthcoming."

This wouldn't be the first time a case involving Uganda's top brass has been referred to the court. On June 8, 2006, The Wall Street Journal reported in a front-page article that the Democratic Republic of Congo's president Joseph Kabila referred allegations of war crimes by Uganda's army during its occupation of parts of Congo. The Journal said Museveni urged then U.N. Secretary General Kofi Annan to block the probe. At the time Annan told Museveni he didn't have such powers.

The ICC while acknowledging investigations of alleged crimes in the Congo in the past has never commented on the Kabila referral involving Uganda's leaders. Separately, Ocampo has been criticized for his close relations with Uganda's leadership, including by fellow ICC prosecutors, according to The Wall Street journal article.

Miwambo writes for The Black Star News from Europe. Norman@blackstarnews.com

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