The lead story this week is the surrender/capture of a senior commander in the rebel Lord's Resistance Army (LRA) movement, Dominic Ongwen.
Ongwen is wanted by the International Criminal Court (ICC) for war crimes and crimes against humanity.
The ICC became actively involved in Uganda after peace talks in 2003 failed between the government and the Lord’s Resistance Army (LRA).
In 2003 the Ugandan government referred situations of international criminal law committed on its territory to the ICC. The LRA had been at war with the UPDF since 1987 and has perpetrated mass killing, looting, abduction, and other forms of violence against civilians.
The ICC then launched its investigations in Uganda in 2004, but to date is yet to arrest or hold a trial of an LRA combatant. In mid-2005, the ICC issued arrest warrants for Joseph Kony, the LRA leader, and four of his commanders.
The commanders included Vincent Otti (deceased), Okot Odhiambo (deceased), Raska Lukwiya and Dominic Ongwen. Ongwen is said to have commanded the LRA's Sinia Brigade which has been blamed for some of the worst atrocities the LRA carried out in northern Uganda.
Although his surrender comes as a victory in the war against LRA, it poses serious legal questions. The first is the question of jurisdiction. The ICC and the International Crimes Division of the High court of Uganda (ICD) both have jurisdiction to try Ongwen should he be prosecuted.
The ICC was created as a result of the Rome Statute which was domesticated by Uganda and entered into force as the International Criminal Court Act of 2010. The Act mandates Ugandan courts to try crimes against humanity and war crimes among others.
Section 6 of The High Court (International Crimes Division) Practice Directions, NO.10 of 2011 grants authority to the ICD to try any offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime as may be provided for under the Penal Code Act, Cap 120, The Geneva Conventions Act, Cap 363, The International Criminal Court Act, No.11 of 2010 or under any other penal enactment.
Although the ICD in this case has jurisdiction to try Ongwen, we must be alive to the fact that there is still an existing warrant of arrest issued by the ICC against Ongwen.
The ICC Act created a complimentary type arrangement between the ICC and the ICD. In theory, the ICD can try suspects like Ongwen and leave cases which it doesn’t have capacity to try or which it doesn’t want to try to the ICC.
By the time of authoring this article, it was not clear whether the Government of Uganda had expressed interest in prosecuting Ongwen.
What is clear, is that the ICC has come under scathing attack from President Museveni who has in the recent past blamed the ICC for ‘selective justice’ against African leaders. His sentiments came in the wake of the ICC summoning a sitting head of state, Kenyan president Uhuru Kenyatta over charges of crimes against humanity.
The second legal question is that of amnesty. The Amnesty Act in Uganda was passed in 2000 as part of efforts to end hostilities in northern Uganda and bring the LRA to the negotiating table.
The Act provides blanket amnesty for anyone who surrendered peacefully. It came under scrutiny in 2011 following the trial of Thomas Kwoyelo who was the first person to be prosecuted in the new International Crimes Division of Uganda’s High Court, even though he was in theory eligible for amnesty.
The matter reached the Constitutional Court which ruled that the refusal to grant amnesty to Kwoyelo was indeed a violation of the equal treatment provision of the constitution. It ordered that the Kwoyelo trial be returned to the High Court’s International Crimes Division and be dismissed.
The decision has been appealed and is currently before the Supreme Court. It is however safe to speculate that Ongwen might in fact be offered amnesty if he can provide valuable information about the whereabouts of Joseph Kony.
In the end, this case will definitely prove to be an interesting case study for the interplay amongst issues of international criminal law, domestic prosecution of international crimes and amnesties in general.