Mid this month, Mr Bruce Afran, a lawyer based in Princeton, New Jersey, USA lodged a new petition with the International Criminal Court (ICC) requesting the court to investigate allegations that Ugandan officials, including Uganda People’s Defence Forces (UPDF) commander-in-chief and Uganda President, Gen Museveni, together with his son, Gen Muhoozi Kainerugaba, are implicated in the torture and other abuse meted out against regime opponents in secret detention places.
A total of 26 officials are named in the petition, which was filed a week or so ago, on July 11 with the ICC in
The Hague, Netherlands. Alongside it are sworn statements reportedly recorded by more than 200 individuals – all of whom claim to be victims of the alleged crimes.
The International Criminal Court, which celebrates its 20th anniversary on July 1, is the world’s only permanent tribunal to investigate and try alleged cases of genocide, war crimes, crimes against humanity and aggression where member states are unable or unwillling to do so.
Mr Afran yesterday told Monitor over phone from the US that if the ICC admits the petition with a view to try the matter, other Ugandan police and military officers could also find themselves standing trial for the same offences.
“It is important to highlight that along the way, more police and army [officers] will be included. The [court] is open to [that],” he said.
Yesterday, Attorney General Kiryowa Kiwanuka suggested to this publication that although the government has not been officially served with a copy of the petition, the decision to file at the ICC may have been unnecessary.
“ICC by its nature is a court of last resort and it really only complements the justice system of a signatory state where they have not or cannot deliver Justice,” he said.
Mr Kiwanuka said he has “not seen the petition and I do not know what is in the petition, but from what I am seeing in the social media… there is a US lady attorney who is pushing the ICC to do some investigations regarding the 2021 election violence but this is politics because this has been on for the last three years.”
“Investigations have already been conducted in Uganda, taken to courts of law, individuals were charged and even sentenced,” he said.
The Attorney General (AG) Mr Kiryowa Kiwanuka. PHOTO/ DAVID LUBOWA
The Attorney General said, during a short telephone interview, that Uganda has a “transformed justice system and if the lawyers wanted to address any matters in court, the courts are here”.
“Really I have not seen the complaint/petition and, therefore, I cannot say it has any material sufficient for ICC”.
Uganda and ICC
In 2016 and 2017, the Office of Prosecutor of ICC received several petitions relating to the killings in Kasese in western Uganda, which the petitioners said amounted to genocide, war crimes and crimes against humanity.
However, the ICC Report on Preliminary Examination of Activities 2020 concluded that Kasese killings by Uganda’s police and soldiers were not justifiable, but not did not amount to war crimes.
The ICC declined to admit the matter, which would have seen the trial of present-day deputy chief of defence forces, Lt Gen Peter Elwelu and others at The Hague.
Some of the huts that were destroyed during the attack on the palace of Rwenzururu King Charles Wesley Mumbere in Kasese District in 2016.PHOTO / FILE
It was reported that more than 150 people, including women and children, were killed when the army attacked the Rwenzururu Kingdom on November 26-27.
Below are Mr Afran’s responses to questions that we put to him in a July 20 interview held remotely using conferencing software.
President Museveni has had accusations of crimes against humanity hovered above him before. What makes you confident that you will succeed where others seem to have failed?
The difference with the current ICC case is that we now have more than 200 sworn victim statements, all made under oath. These statements meet the ICC standards for evidence that can be used in court. Every statement is detailed as to abduction, torture, electrocution, beatings, tearing of skin from victims’ bodies, chemicals being placed in people’s eyes, rape, forced eating of excrement and other torture.
This case differs from most other cases because we have more than 200 sworn statements from torture victims. Even though the victims are not represented by a Western government, their evidence proves the widespread use of torture by the Museveni regime.
The UN system, under which ICC largely falls, is mostly skewed in favour of States and those who control State power. Is there any realistic chance of a case brought up by non-state actors against state actors succeeding?
We do not need a “state sponsor” to put this case to the world. As far as the UN system is concerned, it is existing precisely to protect people from oppression and dictatorship, and we are confident that the ICC and the UN human rights bodies will take these charges seriously.
President Museveni has often accused the West of sponsoring the Opposition in Uganda. Does this latest ICC case against him and his inner circle lend credence to this accusation?
Gen Museveni is falsely accusing [National Unity Platform party president Robert Kyagulanyi, alias] Bobi Wine of being sponsored by the West since it is the US that is propping up the Museveni regime with $1 billion for the army and the Special Forces Command.
American constitutional and public interest lawyer Bruce Afran. PHOTO/FILE/HANDOUT
Museveni is propped up by the West, but the Opposition is coming from the people of Uganda who are rebelling against abduction, torture, crimes against humanity and the gross human rights abuses. Lawyers and others from free nations must defend human rights even if our own democracies support and aid the dictators.
Media reports indicate that 215 people gave testimonies, accusing the President and his son of sponsoring violence. Did you ask them if they attempted to resolve their matters locally and they failed?
Ugandan victims of abduction and torture can obtain no help from local government or the Uganda police and courts. Police agencies in Uganda have frequently abducted victims, beaten them and moved them to SFC torture centres, often acting directly with the army and the SFC.
Uganda’s civil courts have repeatedly been unable to protect torture victims from being forced into the military courts where they have no civil rights.
Left: National Unity Platform mobiliser Samuel Masereka is aided to walk at the party headquarters in Kamokya, Kampala, on January 31, 2022. Right: A close-up of some of the scars and wounds on Mr Masereka’s feet. PHOTO/ABUBAKER LUBOWA
ICC has always been accused of having a weak record of prosecutions, discord among the court’s judges, and a difficult relationship with the world’s great powers such as Russia and the United States. How sure are you that this matter will be fairly handled?
The ICC will be a fair and neutral court. We have presented more than 200 witness statements, specifying torture and human rights abuses by the Uganda government and military. These victim statements contain dates, places of abduction and a description of the actual torture and abuse. We also have multiple witness statements identifying Museveni’s son, Lt Gen Muhoozi, as operating and controlling SFC torture centres.
This is more than enough for the ICC to fairly consider this case and bring charges against Gen Museveni, his son Muhoozi and other commanders of the military and police. In fact, the ICC just brought charges against [Vladimir] Putin, the leader of one of the two superpowers (Russia) and there is no doubt that it will not be afraid of Museveni and Muhoozi.
President Museveni shares a moment with Russian President Vladmir Putin during a Russia – Uganda Business meeting on December 10, 2012 in Russia. PHOTO/FILE
How secure are you in regard to this matter and how sure are you that the witnesses will not recant their statements? We understand some of the witnesses are still in Uganda. Are they insulated against the state’s alleged coercive measures?
All of our witnesses have confidentiality by the ICC that will never reveal their names to the Museveni government. The witnesses have already shown courage in meeting with our team in Uganda and signing these statements.
The Museveni government is now fearing prosecution and has every reason to leave these victims alone. The victims are safe because they have signed witness statements—they are safer today now that we have told the world about Museveni’s crimes and abuses.
Given the sensitivity of the matter and the personality of the people involved, what gives you strength to pursue this case to a logical conclusion?
As a lawyer, I believe the people of Africa have for too long lived under vicious and oppressive rulers, like Museveni, [Milton] Obote and Idi Amin.
L-R. Apollo Milton Obote and Idi Amin Dada. The two were allies but fell out later in the political game.
Like Europeans, African people deserve the chance to live in dignity and in freedom. Lawyers in the West have a moral duty to fight torture and oppression and give strength to Ugandans and others who are forced to live under dictators and authoritarian governments.
Even before the ICC takes our case, our goals have already been achieved because the police and army in Uganda now realise that they will be charged and brought to court if they continue abducting citizens and committing and aiding torture. We will be watching and any officers who abduct, torture and abuse know they will be reported to the ICC.
African leaders seem to have successfully de-campaigned ICC as a tool that imperial powers use against Africans, and the court seems to be much weaker than before. Do you see it pushing ahead with investigating whatever accusations against Mr Museveni that you’re tabling before it and proceeding to indict him if they find any merit in them?
The ICC quite properly focuses on African countries. Most of the world’s violent and oppressive governments are in Africa and are hurting African people.
The ICC exists to protect people in Uganda and other countries from crimes against humanity and torture. And the ICC is not weak—it just indicted Putin, the Russian leader. A “weak” court would not take on the leader of the world’s second most powerful country and the ICC will not be afraid to investigate Gen Museveni and Uganda.
In this file photo taken on May 27, 2022 chief prosecutor of the International Criminal Court (ICC) Karim Khan poses for a picture at the ICC headquarters in The Hague. PHOTO/AFP
How do you respond to allegations that the newly passed Anti-Homosexuality Act—which rubbed the West the wrong way—is what has informed the birth of this case?
This case is not being brought by the “West” and it is an excuse by the Museveni regime to claim that the ICC case is about trying to stop “The anti-homosexuality” law. Not only is this false, but the Museveni government has not denied the charges of torture and human rights abuses. It is only making wild claims to cause distraction.
What if the prosecutor refuses to even investigate or to take up the case? What would be your next step?
In case the ICC decides not to take the case, it would be impossible to predict future measures.
Do you think Uganda is a safe place?
Up until now, Uganda has been a dangerous place for anyone opposed, even mildly, to Gen Museveni. Uganda’s judges and courts have been unable to protect [their] citizens, but we are now seeing the tide changing.
The Museveni regime now knows that it will face prosecution if it engages in more killings, torture and abduction. Uganda is now moving into a new phase in which the government must respect the rights of its citizens or answer to international law.
Have you been to Uganda before?
I have not been to Uganda, but I have studied Uganda and its government for much of my life.
As a student, I studied the Idi Amin regime and its crimes and I have followed Uganda ever since, knowing that its people want democracy and will eventually have lives of freedom.
Uganda has been blessed with a fine educational and legal system and it can become a vital part of the democratic world.
The legal process
The ICC does not prosecute those under the age of 18 when a crime was committed. Before the prosecutor can investigate an alleged crime, she/he must conduct a preliminary examination considering such matters as sufficient evidence, jurisdiction, gravity, complementarity, and the interests of justice.
When investigating, the prosecutor must collect and disclose both incriminating and exonerating evidence.
The defendant is considered innocent until proven guilty. The burden of proof lies with the prosecutor.
During all stages of proceedings (Pre-Trial, Trial and Appeals), the defendant has the right to information in a language he or she fully understands, thus the ICC proceedings are conducted in multiple languages, with teams of interpreters and translators at work.
Pre-Trial judges issue warrants of arrest and ensure there is enough evidence before a case can go to trial.
Before a case is committed to trial (during the Pre-Trial phase), the defendant is referred to as a suspect. Once the case is committed to trial, since at that point the charges have been confirmed, the defendant is referred to as the accused.
Trial judges hear the evidence from the prosecutor, defence, and the victims’ lawyers, render a verdict, and if a person is found guilty, the sentence and decision on reparations are delivered.
Appeals judges render decisions on appeals from the prosecutor or defence.
If a case is closed without a verdict of guilt, it can be reopened if the prosecutor presents new evidence.
Who is Bruce Afran?
Bruce Afran is a constitutional and public interest lawyer, who also teaches first amendment law at Rutgers Law School in the United States. Among other cases, he obtained the release last year of former Black Panther Sundiata Acoli, one of the world’s longest-serving prisoners after 48 years’ incarceration.
He was also the lead counsel in the US national slave reparations appeal that sought recovery of damages from American businesses that had traded in slaves.
Mr Afran has been international counsel for Bobi Wine and the National Unity Platform since Uganda’s 2020 election. He is based in Princeton, New Jersey.
*Additional reporting by Benson Tumusiime
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