UPDF continues their occupation of Kasese, as they detain the King and burns his Palace!

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“We suspect that the attackers might have acquired weapons from Congo” – AIGP Andrew Felix Kaweesi

As there been reported that even as the siege of Rwenzururu Kingdoms Palace at Kasese, the levels of killings of Royal Guards, Soldiers, Police Officers and Civilians; as well as their reports of Crime Preventers that we’re sent from Fort Portal to Kasese to settle scores with the civilians.

The Ombusinga bwa Rwenzururu Charles Wesley Mumbere we’re arrested and taken by helicopter to be questioned at in Kampala. What is been showed online is disturbing pictures of civilians killed in the streets and carried away by the Police Officers and Soldiers, pictures I don’t want to share, but is possible to see on Facebook. Its brothers and sisters, who could have been our kin. That been called terrorist by the Authorities, but before trial killed in the midst of streets of Kasese, as the Security Operatives sealed the town and also went with all force towards the Buhikira Royal Palace, where they killed a dozen of Royal Guards and casualties on the way.

Earlier this morning the gunshots and bullets have been fired around the palace as it has continued from yesterday. It’s been heard in the streets around the palace so the Automatic Weapons has been used by the Army and Police to stop the men at the Palace.

While the Uganda Police Force under the Intelligence of Kaweesi pounds on the creation of “Yiira Republic” like the useful tool it is, because it resurface every-time the Authorities knocks on the Palace in Kasese. This proves the inevitable excuse of the Security Organziation. The Army has claimed they have killed 41 militants, if so they are partly the Royal Guards of the King of Kasese, that the

“Now, UPDF second division spokesperson Capt.Arthur King Timbaganya says the death toll is increasing. He however says the force will further update the media later. He adds that they are engaging the Obusinga bwa Rwenzururu king and leaders in closed door meetings aimed at bringing back peace to the region” (91.2 Crooze FM, 27.11.2016).

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“Update: 23 royal guards,13 police officers dead. Omusinga insists on keeping his guards while army wants them to surrender” (NTV Uganda, 27.11.2016).

Today the Army as they have airlifted the Omusinga and yesterday the Queen detained at Kabarole, they have taken it further and even lit the Palace on fire to prove their ill-intent against the Kingdom.  The king himself will during today be transferred to Luzira Maximum Security Prison while waiting for charges as he was besieged from yesterday.

A look into the History as the Mengo Palace has also been attacked by the Government back in the day. As they didn’t want to comply with then President Obote, as the King didn’t want his Kasese District put into four districts. Therefore the President Museveni sent his guns to silence the Kingdom with force and forcing him to comply.

“The 1966 Crisis:

On 15 April 1966 with the  Parliament surrounded by troops, Milon Obote introduced without notice a new constitution to be voted upon that very day. It was passed without debate and the Prime Minister informed Members of Parliament (MPs) that they would find their copies in their pigeonholes. This constitution came to be known as the Pigeonhole Constitution. Amongst other things, the federal constitutional status of kingdoms was abolished and the office of Prime Minister merged with that of the President and all executive powers became vested in Milton Obote.Milton Obote declared Uganda a republic” (…) “The Kabaka and his kingdom establishment at Mengo refused to recognize the supremacy of the pigeonhole constitution, insisting on the 1962 consitution. On 24th May 1966 the Uganda army under the command of General Idi Amin but on the orders of Obote stormed the Kabaka’s Palace. . The Kabaka managed to escape and went to exile in Britain where he later died from” (Fortuneof Africa.com – History of Uganda).

One of killed Royal Guards ID Card!
One of killed Royal Guards ID Card!

So now the UPDF has under another General or Operative attacked a Royal Palace and forced the King out of it, this after killing dozens of Royal Guards, which they also did earlier in the year. This is revising of the history under Dr. Milton Obote, but in the name of President Museveni who tends to repeat history, with just more flawed outcome and modern excuses like the Yiira Republic, which hasn’t been in the lingo except for when they attack the Palace.

Today there are even reports that people are still hiding in Kasese, for instance at the Springs Hotel International in the Central Kasese.

“Security source tells us over 130 royal guards have been arrested in the raid on the palace” (Raymond Mujuni, 27.11.2016). If so this with the levels of killings from the soldiers are the total guards of the Palace into the levels of 160 or 170. Because the reports of killings yesterday we’re 32 Royal Guards, together with all the other who died over the 48 hours shows the ill-intent of the Security Organization.

This here is not over. There will come more and the reported numbers of civilians, soldiers, royal guards and Police Officers who has lost their lives, and all the ones that has been hurt by the violence, as I am sure there even Crime Preventers with machetes who has hurt fellow citizens in the will of the President. Peace.

Update: On the Kasese skirmishes at the Rwenzururu Royal Palace!

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There been movement as even on NBS TV AIGP Andrew Felix Kaweesi has gone with numbers from the Police Force, who has taken part of the skirmishes at the Palace today. This is where they have attacked the Palace of Ombusinga bwa Rwenzururu Charles Wesley Mumbere.

The numbers which now are more than earlier there are reported up to 46 Royal Guards (NTV Uganda figures are saying 32 Royal guards) and up to 10 Police officers who have lost their lives, than they have not counted the Special Operatives from the Uganda People’s Defense Force (UPDF). Also, there reports of numbers about 40 civilian casualties. One of the UPDF men that are down is a Mayor.

Hon Yokas Bihande stated this earlier today:

“The situation is very tense in the whole District. Many cultural sites were attacked. Bulemba in Ihandiro the grave of Isaya Mukirania; kagando the grave of Kapolyo Tibamwenda and Nyamutswa was burnt down; the cutural site at Kabwe in Kisinga is right now under attack; Buhikira Royal Palance is sarrounded and the Queen was detained at the Police station in Fort Portal. Thats how the situation is. So as you go to sleep pray to God to make the people of Rwenzururu Kingdom react to this situation in a sober manner. God save the King and the Kingdom” (Bihande, 26.11.2016).

All roads into Kasese have been sealed-off so there, the UPDF believes the attacks at Kabarole earlier this month was made by the Royal Guards.

What the New Vision reports after the Skirmishes in the Palace today are: “The police and the Uganda Peoples Defense Forces (UPDF) recovered an AK47 gun during an operation to secure the Rwenzori region” (the New Vision, 26.11.2016).

So the worth of using massive force in the whole region was for one gun, is that what the National Resistance Movement newspaper is saying? Is that all the dead civilians, the dead police officers, the dead soldiers and other casualties!

This was reported from Arthur King Timbaganya:

“UPDF/UPF conducted another operation against armed criminal groups/camps in Rwenzori region/Kasese. 12 armed gangs some wielding SMGs, matchets, spears pangas were killed in areas of Maliba, Bugoye, Kagando, mubuku and Kasese town. 10 police officers killed at Malina, Mubuku, Kagando, Bugoye. 01 UPDF soldier and 03 police officers were injured. 08 suspects arrested by police for interrogation. 01 SMG belonging to police was lost to the gangs. 01 police pick up burnt at Kagando. 02 full SMG magazines, matchets, OBR uniforms, Military shoes recovered at Hihandiro hills . The town is now calm with UPDF and UPF patrols. The people of Rwenzori are assured of their right to security. The operation is to rid off the region Kirumira Mutima’ armed gangs that are establishing ‘milintary’ camps aimed at threatening the peace of the people of Uganda and especially Rwenzori region” (Timbanganya, 26.11.2016).

The Agnes Ithungu Nyabaghole Queen of the Kingdom was earlier in the day arrested and is detained at Kabarole Police stateion. She was on her way on the way to Kampala when she was arrested.

Little material damage of the day: “Police truck burnt in Kagando as reprisal attacks continue in Kasese”.

This here is what I could get until now. The situation isn’t clear and numbers-game of dead shouldn’t be important now. Families have lost the loved ones, both of soldiers, police-officers, civilians and royal-guards. What should worry is how the Army can just besiege a royal institution and kill, without statements and therefore the different rumors are coming. Like the Yiira Republic, ADF or the Kirumiramutima.

Unconfirmed is that there are over a 100 civilians who are wounded.

So now that they claim that the Royal Guards we’re behind the earlier clashes in the Kabarole area, while today the Royal burial sites has been put on fire as the Royal Palace has been sieged and attacked by the army. Together with the Police Officers who has claimed that the Operation is under way and everything will go well.

Well, if the amount of lives and the unnecessary violence is needed for an operation like this, like an occupation force in their own country. They have now done the same with the Flying Squad earlier in the year after the General Election, which seems like it is repeatedly attacked to stop the Kingdom from exists.

We can just wonder and questions when is going on, or if it is just that the UPDF on order from Mzee wants to make kingdom silent. As he wants Kasese District into four districts, but that is just talk for the moment.

We will see what kind of statements the Kingdom, the UPDF, the Police and other civil society in the Rwenzori or Rwenzururu will say, as the coming hours and days will remind us of the violence and killings. What is sure is that there been too much of it this year in Kasese and Rwenzori as they have been targeted by the NRM and their Security Operatives. Peace.  

Rwenzururu Prime Minister says kingdom is ready to talk with government (Youtube-Clip)

The Army besiege and kills Rwenzururu King’s Royal Guards at the Palace in Kasese!

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“If you had any plans of coming to town,please dont” – A Plea from a Kasese resident!

There is risen tension and problems in the Rwenzori and Rwenzori Sub-Region as the Kabarole skirmishes and today the Kasese town has been closed off by the UPDF who has put the Obusinga bwa Rwenzuru Charles Wesley Mumbere. The UPDF has closed the office of the King; also the Palace has been under siege as the King is there with his Royal Guards.

The DPC of Kasese said this:

“Guys don’t worry we just having a small operation in town and we fully incharge..but ofcourse just keep where u are until we are done..lest u become a victim of circumstances”.

Heavily-armed elite units of Uganda’s armed forces have been heavily deployed in Kasese District following clashes with armed militants in Rwenzori region on Thursday night. The UPDF overran several bases of a militia group linked to the radical Rwenzururu Kingdom. At least 12 people died in the clashes though locals say the number could be much higher. Since then, the UPDF have been increasing deployments in the area to thwart attempts of a possible breakout of violence” (Grejeen News Uganda, 2016).

“The attackers are not yet identified. They are gangs. If you remember just recently , schools were closed, a health centre closed and they were scaring people so we thought we should take action,” said UPDF spojesperson Col Paddy Ankunda.

So the DPC is saying the army will violently charge against civilians if they are in the area of the UPDF. This again, proves the elements of the army who at times just occupy their own and takes control with force and no thoughts of the locals or why they are attacking the Kingdom, again!

All shops have been closed and usually busy streets are deserted as the UPDF and gun-shots around the Palace. None of whom is the reason or why the UPDF again starts battling in Rwenzori. At the Palace there been a stand-off between the Royal Guards, the Police Force and the Army. As the NRM regime continues to fight the Kingdom with all force, as they have done since before and after the General Election in 2016. Wonder why the Army has issues with the Kingdom now. There is one confirmed dead on the side of Kingdom Mbusa Kabwe. But the numbers that the Army has killed this time around is unsure.

The UPDF and UPF are claiming a youth counter-terrorist group who has taken their own tax in the area. Well, this is here is directly again aiming against the kingdom, not some random rebels as they claim. So their validation of the attacks seems weak and like excuses more than actual intelligence. People have been forced by the Army to evacuate the town with hands-up as the streets we’re taken with mambas and rifles.

Its again blamed on a group called: “Kirumiramutima” the Strong hearted, though they just surface every-time the UPDF rolls in with heavy gear into town like morning dew; they pop-up, as there speculated that the King resisted to be taken into custody and therefore the Royal Guards are sealing off and fending of the Army and Police for the sake of his safety. There been reported up to 4 Royal Guards killed in the skirmish from the UPDF. The Spokesperson for UPDF confirm they have shot 18 persons in Kasese District, they claim their fighting insurgents from the Allied Defense Force (ADF) that has been inside Democratic Republic of Congo, but it’s heritage is from the Rwenzori region. Captain Arthur Timbagnya has confirmed this.

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But what boggles me than, that the Royal Guards are not ADF or Strong Hearted, why are they killing more Royal Guards as they did during the skirmishes in March? What is up with the UPDF hatred for the Rwenzururu Kingdom?  There are some who even say 8 Royal Guards has been killed, wonder if the Army has plans to finish off the king to as they are clearing his guards of apparently. This report comes from the OC CID and OC Station of Maliba in Buyisumbo Sub-County who confirms.

The thing we should also wonder about, this comes a month after the King didn’t accept the request of the Republic to try to split the District. Something the Central Leadership has proposed in the past. That he did on the 20th October, and now the Army besiege his Palace.

“The proposal which was tabled in a meeting of the Kasese NRM Caucus and the NRM Executive Committe together with the selected NRM leaders at State House Entebbe on Wednesday seeks to split Kasese into four districts of Bwera, Hima, Kasese & Katwe. “When my people are together, i dont have a problem. I agree with the split of Kasese district because a district with over a million people can not provide everyone service delivery , decentralisation removes friction based on sectarianism” said Mr.Museveni” (Sonnie News, 13.10.2016).

So if it that the reason, that the King doesn’t want to comply with the wish of the President as he has to show force to silence the Royal King with his Special Operatives to prove who is the Grand Leader and who orders are just. Therefore the new skirmishes happen as the King doesn’t want to follow the President. Therefore the President and his Army says it is radical elements, but that might be radical because he doesn’t want Kasese to become scattered.

While we’re on it:

“According to an eyewitness, loud gunshots and military movements are audible and visible in what is the ‘frontline’ of UPDF and the Yiira separatists who were armed with spears and arrows face off” (…) “Speaking to Lydia Tumushabe police spokesperson for Rwenzori region, a combined security operation has taken over Nyamuswa to containing the ferocity of the ‘Esyomango’ a popular group with the Rwenzururu king though still visible in embalmed t-shirts” (…) “A local leader who preferred anonymity due to the sensitivity of the matter said tension has been brewing in the area with bickering between the Bakonzo and the Batooro over the proposed secession” (…) “Yiira State is said to be a wish for some officials and supporters of Rwenzururu Kingdom. However, Rwenzururu King Omusinga Charles Wesley Mumbere previously said the Yiira Republic is being agitated for by his subjects in eastern DR-Congo. There are many ethnic Bakonzo who live in eastern DRC” (Kasese orugambo hottest secrets and rumours news bulletin’s post, 26.11.2016).

So the Yiira Republic comes dusted up like relic who nobody has seen or heard about since last skirmish. But a succession between Bakonzo or Batooro seems more likely as they also want to regain status as Kingdoms on the same level as the Rwenzururu King Mumbere as he is a Bakonzo. But that is all talk right now. If the wish for a Yiira republic where real, than the fights would have continued all year and the people would have come with force, as they have been silenced since the last time the Ugandan Army went into town.

Also reported that two policemen are feared dead in the battles, three are feared to be dead, by the battles on the outskirts of Kasese (Raymond Mujuni, 26.11.2016) .

So there are many reasons for this, either thing that counts is the wish for power or control, the others are just that the UPDF and Police needs to validate their return and killings of Royal Guards, which they have done before with different reasons. Something that they tried to force and didn’t silence the violence when IGP Kale Kayihura visited Rwenzori neither was happening when President Museveni came with his rifle. Peace.

RDC: Accuse de Reception – A Messieurs William Bandoma et Victor Tesonga, membres de la coalition der Mouvements LUCHA et FILIMBI (24.11.2016)

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RDC: Le Procureur Général de la République RDC Flory Kabange Numbi demande la levée d’immunité de Kyungu wa Kumwanza afin qu’il soit poursuivi

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UN Special Envoy calls on Congolese political stakeholders to demonstrate flexibility and readiness for comprimise to facilitate peaceful election process (25.11.2016)

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RDC: La Position des Mouvements des Citoyens et Des Ligues de Jeunes Des Partis Politiques du Rassemblement et Des Forces Acquises au Changement du MLC ainsi que Des Associations et Mutualites des Jeunes Apres le Discours du Cheif de l’Etat sur l’Etat de la Nation (23.11.2016)

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Advocacy Brief on Kenya: 15th Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court 16-24 November, 2016 (21.11.2016)

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Background

At the height of the violence that gripped Kenya after the disputed 2007 elections, the Party of the National Unity and the Orange Democratic Movement, who were parties to the conflict, wrote to the International Criminal Court (ICC) seeking its intervention to stop what they called genocide. A local investigatory commission with international participation found that some actions during the post-election violence likely met the threshold of crimes against humanity and recommended the establishment of a Special Tribunal for Kenya, or in the alternative, the handover of the sealed evidence to the Prosecutor at the ICC.

Efforts to establish the Tribunal were defeated by political forces aligned to suspected perpetrators, hence triggering the handover of evidence to the ICC and the subsequent investigation. Six Kenyans were named in connection with seven crimes against humanity charges; the ICC Pre-Trial Chamber II confirmed charges against four suspects. Two suspects – Uhuru Kenyatta and William Ruto were subsequently elected President and Deputy President, respectively, before their trials could begin at the ICC. Thereafter, the Prosecutor withdrew charges against two suspects – Francis Muthaura and Kenyatta – citing witness bribery and intimidation, as well as failure by the Kenya government to cooperate with the court. The remaining case against Ruto and journalist Joshua arap Sang was terminated citing “intolerable levels of witness interference and political meddling”.

Kenyans for Peace with Truth and Justice (KPTJ) has followed closely the developments around accountability for the crimes committed during the 2007 post-election violence. Since the opening of the investigations in March 2010, we have observed certain shortcomings and challenges on the part of the Government of Kenya, the ICC, the Assembly of States Parties (ASP) and the African Union (AU). This brief seeks to focus on key issues emerging from the situation that the ICC and international justice finds itself in today, while drawing linkages from how the Kenya cases and other ICC cases were managed. KPTJ also makes recommendations on actions that require to be undertaken by the ASP, the ICC and African governments in order to address the emergent challenges.

  1. Engage and Withdraw Simultaneously?

A Contradiction in the Mandate of the AU Open Ended Committee

  1. The 27th ordinary session of the African Union’s assembly in July 2016 issued a decision on the ICC[1] pursuant to a similar one from the previous session[2]. Besides praising the court’s termination of the case against Kenya’s Deputy President William Ruto, the AU outlined a five-point agenda for the Open-Ended Committee of Foreign Ministers on the ICC, which included the following:
  • Engaging with the United Nations Security Council (UNSC) before the January 2017 AU Summit and before the 15th Assembly of State Parties in November 2016.
  • Maintaining the earlier decision from January 2016, to develop a comprehensive strategy to inform the actions of AU member states that are party to the Rome Statute; a strategy that includes collective withdrawal from the ICC.
  • Concluding a review of the ICC’s interpretation of Article 93 of the Rome Statute regarding the compulsion of unwilling witnesses to testify, with a view to inform debate at the 15th
  • Conveying the message that AU member states object to the inclusion of language requiring the UNSC to mandate UN peace-keeping missions to enforce arrest warrants in Africa.
  • Utilising the AU Mission in Brussels, Belgium, as the secretariat to the Open-ended Ministerial Committee and provision of institutional support to the African Group in The Hague, Netherlands, to ensure effective coordination of its activities.
  1. The AU has since held a meeting with the UNSC in September 2016 to present pre-formulated terms developed by the Open-ended Ministerial Committee as conditions to keep African States as parties to the Rome Statute. These conditions were as follows[3]:
  • Immunity under the ICC’s Rome Statute for sitting heads of state and government as well as senior officials;
  • Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
  • Reduction in the powers of the ICC Prosecutor.
  1. Recent developments have seen South Africa, Burundi and The Gambia commence processes to withdraw from the ICC; seemingly as part of actualising the intention cited in the agenda of the Open-ended Ministerial Committee. These actions expose the agenda by the AU to be disingenuous and presupposes that the deliberations within the ASP would be futile.. The wave of withdrawals occurs against a counter-wave of support for the Court by countries including Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana[4]; an indication that the strategy for mass withdrawal does not enjoy the consensus suggested by the AU decision of July 2016. These countries have suggested that concerns expressed by African states are not insurmountable and can be addressed within the framework of the ASP. Their support for the ICC underscores the fact that the obligations under the Rome Statute are State obligations and not AU obligations; as such, decisions on withdrawal will be based on national interest that cannot be assumed by the AU.
  1. Furthermore, the strategy for AU member states to withdraw undermines the other outlined agenda items of engagement with the ASP, such as the review of the interpretation of Article 93 of the Rome Statute and the enforcement of arrest warrants. Such contradictory actions raise the question of whether the AU is negotiating ICC reforms in good faith.
  1. In light of the foregoing, KPTJ recommends that:
  • African States abandon and disregard calls for mass withdrawal from the Court and instead consolidate the member bloc to advance their concerns within the bounds of the ASP in deliberations based on good faith.
  • African states should continue to publicly reaffirm their support for engaging with the ICC through the ASP and prevail on the AU to adjust its engagement strategy accordingly. We applaud the statements made by Cote d’Ivoire, Nigeria, Senegal, Sierra Leone, Tanzania, Malawi, Zambia and Botswana.
  • An ICC Liaison Office should be established at the AU headquarters in Addis Ababa to facilitate more productive and sustained communication between African States and the ICC as part of restoring a relationship that has become plagued by mistrust and misunderstandings.
  1. Absence of Accountability?

Peace, Security and Stability

  1. The characterisation of the ICC as undermining the peace and security of states or threatening their stability has become a recurring theme by those advocating disengagement or withdrawal from the ICC. In its notice of withdrawal, South Africa claims that its aspirations for the peaceful resolution of conflicts were being hindered by its obligations under the Rome Statute[5] to arrest Sudanese President Omar Al Bashir when he attended the June 2015 AU Summit in Johannesburg. Kenyan government officials have also previously described the cases against Kenyatta and Ruto as an existential threat to peace and stability.
  2. A closer scrutiny of this assertion in the face of ongoing conflict situations suggests the contrary. The absence of accountability processes does not necessarily facilitate peaceful resolution of conflicts; the South Sudan and Burundi conflicts instead point to protagonists willing to escalate violence, even in the context of peace negotiations. Burundi and The Gambia have commenced processes to withdraw from the ICC at a time when their respective governments stand accused of acts of repression and mass human rights violations. Rather than advance the cause for peace, the clamour for withdrawal from the ICC is playing into the hands of those wary of the prospects of accountability in the aftermath of conflict. Even more concerning is an apparent trend of rising post-election violence, such as that witnessed in Kenya previously and in Gabon currently, or violence stemming from efforts to instal third-term incumbencies in the Democratic Republic of Congo (DRC) and Burundi. Such trends are bound to persist in the absence of mechanisms for accountability, of which the ICC is a critical component.
  3. The assertion that the African Court of Justice and Human Rights (African Court) and its proposed expanded criminal jurisdiction through the Malabo Protocol would fill in any void created by a mass withdrawal from the ICC is erroneous. The African Court is a distant prospect for addressing the impunity gap: it is far from being operational. Since 2013, only five states namely Benin, Kenya, Congo, Guinea Bissau and Mauritania have signed but not ratified the Malabo Protocol, which requires the ratification of 15 states to begin operations. Kenya is the only state thus far that has made a financial pledge of USD 1 million to operationalise the court — a far cry from the resources required for a court of broad jurisdiction consisting of a mandate on human rights as well as international law and interstate disputes. It has previously been estimated that a singular international criminal trial costs USD 20 million to undertake. In addition, the protocol contains contentious provisions that undermine its viability as an alternative platform for international crimes, the most notable being the clause of immunity for sitting heads of state and senior government officials. As a testament to the inability of the African Court to be an immediate replacement of the ICC as desired by some, even South Africa through its Justice Minister has indicated that it will ask for a review of the Malabo Protocol to address contentious issues. Furthermore, limited progress has been made towards establishing national mechanisms that can sufficiently undertake the obligation of accountability for international crimes.
  4. KPTJ recognises the pursuit of justice in conflict and post-conflict settings as an essential pillar of rebuilding democracies and restoring rule of law. These are the pathways to lasting peace, security and stability. Rather than push to void international justice mechanisms after the conflict to facilitate mediation, we recommend that:
  • African states fully implement and consistently apply already established norms on democracy, peace and security as a preventative measure to conflict including: the African Charter on Human and Peoples’ Rights; the African Charter on Democracy, Elections and Governance and; the African Governance Architecture.
  • African states must critically reflect on and address the issues of the African Court’s capacity, accessibility, legal standards outlined for crimes under international law and expunge provisions conferring immunity on sitting Heads of State and senior government officials. This process must not be rushed or predicated on a manufactured crisis precipitated by a strategy of mass withdrawal from the ICC.
  • African states should establish robust and credible national mechanisms to address the accountability question at first instance and in complementarity with regional and international mechanisms. They must also broaden their policy considerations to include comprehensive reparation programmes for victims of international crimes.
  • Disparity between State Obligations and Reality?

A look at State Cooperation

  1. The Kenya and Sudan cases have exposed the frailties within the Rome Statute framework in as far as state cooperation is concerned. These cases have laid waste to the presumption that States will willingly engage with the court in the face of cases seeking to prosecute sitting heads of state, their deputies or powerful elites in close proximity to power. State cooperation has only demonstrably worked in instances where the target for prosecution is a vanquished foe of conflict as seen in the cases of Uganda and Cote d’Ivoire, that are fast advancing a notion of “victor’s justice”. This challenge is further compounded by the fact that the final recourse for addressing the lack of state cooperation rests with the ASP. The ASP being a political organ of the Rome Statute is influenced by political rather than purely legal considerations in making its decisions, which makes the issue of resolving the non-cooperation of states problematic. A final challenge to state cooperation is the failure of the United States, China and Russia to ratify the Rome Statute while also being members of the UNSC with the power of referral of matters to the court. This has created the notion of double standards within the international justice system and emboldened other states to disregard cooperation with the court.
  2. KPTJ calls on the members of the UNSC who have not ratified the Rome Statute to display leadership on State cooperation with the court by first ratifying the Statute and utilising its discretion on referral and deferral in a manner that adheres to the objectives of the Statute. We further wish to reiterate that state cooperation must denote effective cooperation that facilitates the mandates of the respective organs of the court and not feigned cooperation which creates the perception of facilitating the court but in fact consists of using procedural and technical obstacles to undermine the court. We call on the ASP to adopt a consistent and objective legal standard in the assessment of state cooperation.
  3. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

  1. The Kenya cases and the manner of their termination carry critical lessons for consideration to inform future actions by the court and the content of reforms within the strategic plans of its respective organs. The Office of the Prosecutor (OTP) as well as the bench on various occasions decried the instances of witness tampering and intimidation as well as non-cooperation by the state in responding to the OTP requests for information and a failure to execute ICC warrants of arrest with respect to three Kenyans suspected of witness tampering. This in fact has led to a finding of non-compliance against Kenya and led to its referral to the ASP under article 87(7) of the Rome Statute. In the midst of all this, was an unprecedented and disruptive diplomatic effort that deliberately exerted political pressure on the court with a view to influencing the outcome of the Kenya cases. It is arguable that these diplomacy efforts yielded the concession of excusing President Kenyatta and Deputy President Ruto from continuous presence at their trial and that the current wave of withdrawals from the ICC on the basis of an apparent bias by the court against Africans are a fallout from these diplomatic efforts. The capitulations of the cases have also pointed to significant flaws in the investigative and prosecutorial approaches that informed the development of the cases and must lead to some introspection from the relevant mechanisms. The fact that the Trust Fund for Victims is yet to commence operations in Kenya cannot go without mention.
  2. KPTJ urges all the organs of the court to reflect on these experiences and take due cognisance of the following lessons and recommendations:
  • The ICC, particularly the ASP, should do more to ensure that it does not allow political statements to interfere with the judicial independence of the Court.
  • The ICC should ensure that it takes steps to respond to messages of a political nature and correct inaccurate statements in a timely manner. In addition, it should ensure that such key messages reach the right audiences, including victims and affected communities.
  • The Court should continue to build its relationship with African States that openly support the mandate of the ICC; in addition, the ICC should do more to improve its relationship with, and image at, the AU.
  • The Trust Fund for Victims should commence operations in Kenya, as victims have received little to no assistance from the Kenyan government.
  • The Prosecutor should carefully consider when to request ‘summons to appear’ as opposed to ‘warrants of arrest’ and take into account the individual circumstances of each accused person in doing so, particularly their potential to intimidate witnesses and interfere with evidence.
  • Swift action should be taken by the Prosecutor and the Court in instances of non-cooperation by States Parties. Any instances of non-cooperation should be resolved as speedily as possible, in such a manner that the outcome of proceedings on non-cooperation can be applied to strengthen an ongoing case and not be delayed to the point that the outcome is only of academic significance.
  • The Prosecutor should continue to carry out a review of its investigative strategies and methods in order to improve its chances of success at trial.
  • The Prosecution should ensure that its staff are able to spend as much time as possible on better understanding the context and nuances of a given situation country.
  1. Pursuit of reform without prejudice?

UN Reform vs ICC Reform

  1. The unique role played by UNSC in referral and deferral of cases before the ICC means that the debates on reforming the court and reforming the UN and in particular the UNSC have inevitably intersected. We have witnessed both undertones and overt accusations of imperialism and undue influence directed at the court on account of cases on Africa referred to it by the UNSC (Libya and Sudan). Arguments made to amend the Rome Statute to confer immunity for sitting heads of state and senior government officials are laced with grievance against the UNSC permanent five members possessing a de facto immunity from prosecution under the ICC on account of their veto power. The end result is a misdirected effort to amend the Rome Statute or in the extreme withdraw from the ICC on the basis of perceived excesses that are better addressed by engaging the broader debate of UN reforms.
  1. While KPTJ acknowledges the slanted relationship of the UNSC with the court and supports a robust conversation on its reforms, we call on states not to misdirect the agenda of reforming the UNSC into discussions on improving the functions of the court and occasion amendments to the Rome statute that sacrifice the future of the court as part of a bargaining process on UNSC reforms. We call on African states in particular, to distinguish the broader question of UN reforms as enshrined in the “Ezulwini Consensus” from the question of reforming the Rome Statute and reflecting on the performance of the court. We call upon African member states to the Rome Statute not to sacrifice the promise of justice for victims of atrocity crimes at the altar of grievance against the unequal power relations represented by the UN Security Council.

end/kptj/16.06.2016

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About KPTJ:

This brief was prepared by Kenyans for Peace with Truth and Justice (KPTJ), a coalition of Kenyan citizens and over 30 organisations working in the human rights, governance and legal fields that came together during the crisis over the disputed results of the 2007 presidential election to seek truth and accountability for the elections and the widespread violence that followed; and who continue to work closely with the victims of that period. It is a brief update on the situation in Kenya as pertains to pursuing accountability for the crimes against humanity committed during the 2007-2008 Post-Election Violence as well as its adherence to its obligations under the Rome Statute.

[1] Assembly/AU/Dec.616 (XXVII)

[2] Assembly/AU/Dec.590(XXVI)

[3] Press Release: “UN/African Union: Reject ICC withdrawal”. Available here: http://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/552-un-african-union-reject-icc-withdrawal.html

[4] Article: “Which African states slammed Burundi, South Africa and Gambia’s withdrawal from ICC?” Available here: http://www.ibtimes.co.uk/which-african-states-slammed-burundi-south-africa-gambias-withdrawal-icc-1589711

[5] https://www.justsecurity.org/wp-content/uploads/2016/10/South-Africa-Instrument-of-Withdrawal-International-Criminal-Court.jpg

RDC: Communique du Rassemblement (19.11.2016)

rassamblement-19-11-2016-p1rassamblement-19-11-2016-p2