The capture of Lord’s Resistance Army (LRA) commander Dominic Ongwen has once again proved Ugandan President Yoweri Museveni to be the master of realpolitik. An avowed critic of the International Criminal Court in recent times, President Museveni last month surrendered Ongwen to the same court for trial.
Ongwen, captured in the Central African Republic (CAR), was one of the five LRA commanders that the Ugandan government had referred to The Hague court for crimes against humanity and war crimes committed in Uganda since July 2002. The others were Joseph Kony, Vincent Otti, Raska Lukwiya and Okot Odhiambo.
In those early days of the court, however – in which nearly all African states actively sought quick membership – it was evidently unthinkable to their leaders that it could ever “turn” on them. Rather, it was seen by many as a mechanism they could call upon to deal with their political rivals.
But times have changed. President Museveni, a self-confessed critic of ICC has been at the forefront with calls for members of African Union (AU) who are also signatories to the Rome Statute to walk out of the ICC en masse.
The reason he wants a mass walk-out from the ICC, the Ugandan strongman has repeatedly stated, is because the court has become a Western puppet created to destabilise African regimes. This is after the court indicted President Omar al Bashir of Sudan, President Uhuru Kenyatta of Kenya and Kenyatta’s deputy William Ruto. Criminal proceedings were initiated against the latter two before they assumed their present positions.
“I will bring a motion to the next sitting of the African Union to have all African states withdraw from the court and then, they (wale wazungu) can be left alone with their own court,” President Museveni told a cheering crowd at the Nyayo Stadium in Nairobi at Kenya’s Jamhuri Day celebrations in December 2014.
For lawyer James Mamboleo of Africa Nazarene University, the capture of the LRA commander has revealed the true intentions of President Museveni. “His involvement in the Kenyan cases, particularly, and to an extent, the Sudan case, demonstrates that he is just being an opportunist at a time when he wants to spread his tentacles in the region,” said Mamboleo.
“He is a dishonest player on the entire question of the ICC and will cooperate with the court when it suits him but castigate the same court when it doesn’t act in his best interests. He doesn’t believe in institutions; all he is interested in is to turn the ICC into an extension of the Ugandan courts which operates on his whims.”
The arrest of Ongwen has been a subject of debate, with the CAR’s Seleka rebels claiming that he was captured during a battle near the eastern town of Sam Ouandja earlier in January. As a result, the rebels demanded reward money from the US government which had placed a $5 million (Sh450 million) bounty on him for his arrest, transfer or conviction. But Ugandan and US officials said that Ongwen had turned himself in.
President Museveni’s government had initially announced that Uganda was ready to try the warlord on its own with the government spokesman Ofwono Opondo asserting that Uganda now has “institutional capacity to try him locally”, which of course would have allowed Uganda to by-pass the ICC. But that narrative has since changed with Henry Oryem, President Museveni’s Minister of State for Foreign/International affairs stating that the crimes Ongwen is indicted with are extra-territorial (they go beyond the jurisdiction of Uganda).
In a phone interview with Oryem from Nairobi, he explained that some of the crimes took place within the territory of CAR, South Sudan and the Democratic Republic of Congo. “What do these other countries feel? Uganda alone does not have jurisdiction over the crimes he committed, and that is where the ICC comes in,” the minister said.
Oryem confirmed that before the decision to surrender the LRA commander was reached, the ICC had been in contact with Uganda’s International Crimes Division, the special Division of High Court of Uganda which was established in July 2008 to deal with crimes of such nature.
According to the minister, President Museveni respects the law and mechanisms of the ICC. “However, he does not respect the way the ICC has been behaving lately, which is also the position of the AU,” said Oryem in an interview.
The Ugandan strongman’s unrelenting criticism of the ICC, the minister explained, has to do with how the court has handled African heads of states, “not terrorists.”
“The AU has also pronounced itself on this matter of sitting heads of state and that is where our quarrel with the ICC is,” he said.
President Museveni was among the earliest African leaders to make reference to the ICC with regard to the LRA.
Pre-Trial Chamber II of the ICC followed the Uganda government’s act by unsealing the warrants of arrest for LRA leader Kony, Otti, Lukwiya, Odhiambo and Ongwen on October 13, 2005. The warrants of arrest for the LRA leaders were the first to be issued by The Hague court following its creation by an international treaty, the Rome Statute, adopted on July 17, 1998.
At the time, President Museveni was a strong defender of the court as he sought to eliminate the LRA menace in the Northern Uganda.
Fast forward to 2010 when the ICC began investigating the Kenyan 2007/08 post-election violence cases and a different Museveni emerged, rallying African leaders to pull out of the court and form its own African court “that will respect the independence and sovereignty of the continent.”
With a group of African leaders that include Rwanda President Paul Kagame, Kenya’s Uhuru Kenyatta and Ethiopian Prime Minister Hailemariam Desalegn, he described the ICC as “a biased instrument of post-colonial hegemony.”
“The problems that occurred in Kenya in 2007 and that happen in other African countries are, first and foremost, ideological. For ICC to handle them as just legal matters is the epitome of shallowness,” he said during national celebrations at Kololo to mark 52 years of Uganda’s independence in October 2014.
Oryem reiterated that Uganda was not backing down in its quest for African States to pull out of the ICC despite agreeing to surrender Ongwen to the same court he has so openly disparaged. “We still retain our position of pulling out of the ICC because the court has been used to belittle the AU,” said Oryem.
Advocate Henry Kilama from Gulu, Northern Uganda, which had for some time borne the brunt of the LRA meanwhile reported that the general feeling among the Ugandans was that Ongwen, being a citizen of Uganda should be granted amnesty.
In any case, Mr Kilama said, a number of Ugandan commentators are of the view that the government should invoke the reciprocity provisions of Article 98 Agreements (Non-Surrender Agreements) with the US government.
Uganda is among a host of countries that signed the Non-Surrender Agreements, derogatively called Impunity Agreements, which provides bilateral immunity in an effort to shield US citizens from prosecution by the ICC. “Whether or not that happens, it is important to realise that Ongwen had been indicted by the ICC. But a number of commentators were of the view that the reciprocity provisions apply in Ongwen’s case,” said Kilama.
Ongwen had been in the custody of US forces before he was handed over to the AU to surrender him to the ICC, making Mr Kilama’s argument valid.
For Mamboleo, by agreeing to surrender Ongwen while opposing trial of sitting heads of state by the ICC, President Museveni has simply perfected the art of speaking out of both sides his mouth. “He is just being a practical African autocratic leader,” said Mamboleo.