UN Experts Report expose illegal Gold Export to Uganda!

Again and again, the UN Experts are getting validated sources of mineral exports, which are ending up in the hands of the Gold Refinery in Entebbe, Uganda and ending in Dubai, United Arab Emirates. These stories continues, as the National Resistance Movement (NRM) and President Museveni are taking advantage of the lack of authorities and control of the borders. That is why the Ugandan can get the illicit gold and earn fortunes of the trade.

They are forging documents and doing so by tricking customs and ways. To ensure, the gold goes from Bukavu to Entebbe into the hands of the AGR. The company, which happens to run by Gen. Salim Selah, the brother of the President. The State House of Uganda is earning fortunes on the illicit trade of gold and forging the gold sources even.

Take a look:

“In addition, the Group found that Ugandan authorities lacked a coherent policy to combat smuggling. The Group also found that Kampala-based gold exporters did not have an efficient system to avoid the contamination of their supply chains with illegally traded gold from the Democratic Republic of the Congo” (…) “In fact, documents concerning a supplier for AGR obtained by the Group show the risk of contamination of the supply chain with gold illegally sourced or traded from the Democratic Republic of the Congo. The supplier, a Congolese national based in Bukavu who provided AGR, in October 2018, with gold worth more than $3 million, travelled with an official document, delivered five months earlier, identifying his occupation as that of an electrician. The supplier declared to AGR that the gold was sourced from the United Republic of Tanzania. Initial investigations conducted by the Group suggested that the individual was used as a broker by many Bukavu-based gold smugglers” (UNSC, 2018).

We have seen these stories before, its still vital and important to show, yet more evidence of the illegal export and illicit trading of the Congolese gold through Ugandan exporters, which happens to be in connection with the President and his brother Gen. Selah. This is common knowledge, but has to be addressed. As the ownership of the AGR is known and also, how that implicates the State House.

This is just a few statements of what they do, but still enough to prove how they do it. As this is very fresh reports and just out from the UNSC and their experts. Peace.

Reference:

United Nations Security Council (UNSC) – ‘Letter dated 18 December 2018 from the Group of Experts on the Democratic Republic of the Congo addressed to the President of the Security Council’ (31.12.2018)

The Sentry’s new report have been digging into the export of conflict Gold to the Gold Refinery in Entebbe!

“The conflict gold trade sustains ruthless armed groups such as the FDLR and Congolese army units that commit mass atrocities, sexual violence, and other human rights abuses against the population of eastern Congo. It is critical that actors in the international community, especially global banks that trade gold and the consumers of gold, know the origins of the precious metal they are buying. More importantly, governments and companies need to take action against the corporate networks that traffic conflict gold and move it into the global economy” (The Sentry, P: 20, 2018)

Just as the Global Witness Report of June 2017 named “Under Mined” and United Nations Security Council Report from June 2018 named “Final report of the Group of Experts on the Democratic Republic of the Congo”. Today, the Sentry launched today the report named “The Golden Laundromat”. They are all digging into the illegal and sinister gold trade of the Democratic Republic of Congo and the possible money laundering scheme of President Yoweri Kaguta Museveni and his brother Gen. Salim Selah. Who is both invested in this operation.

This report is again stating the fact and the reality with this trade. As the Sentry is proving new perspective to the matter. These being their analysis of the documentation of the operation and more into the Goetz business practices, which are vital for the export of these conflict minerals. They are showing the trail from the fields and mines in the DRC to the World Market.

Here is some quotes, which I think was worth taking a minute to digest:

“According to interviews conducted and documents obtained by The Sentry, there is a significant risk that AGR sources conflict gold from eastern Congo, and that it imports illegally exported artisanal gold mined in eastern Congo. In 2017, according to documents reviewed by The Sentry, AGR refined and exported 9.3 tons of gold, although the company says it exported 7.7 tons. Several people involved in the trade of Congolese gold with direct knowledge of AGR’s operations told The Sentry that the company sources gold from conflict-affected parts of eastern Congo. Two prominent gold smugglers in eastern Congo acknowledged they sold illegally mined and trafficked gold to AGR from 2016-18, which two South Kivu-based traders confirmed” (The Sentry, P: 8, 2018).

“Furthermore, there is at least reason to suspect that AGR buys gold. Trade insiders told The Sentry that AGR buys gold, and Goetz reportedly decides on the price paid to traders, as well as arranging terms and scheduling of payment. Ugandan export records indicate that AGR exports gold: it exported 9.3 tons of gold in 2017, although AGR says it exported 7.7 tons. Goetz’s original AGR project proposal sent to President Museveni in 2014 calls into question the company’s commitment to due diligence. In the document, Goetz, on behalf of Tony Goetz NV, states that AGR should attract gold from the region and that any gold traders who do not have official documents should be allowed to sell gold to AGR but pay a $500 penalty” (…) “From Uganda, AGR’s gold flows to other Goetz-controlled companies in Dubai. The DMCC was scheduled to audit another company in the Goetz network, Tony Goetz NV, in 2017, but no new audit report has been published. Despite the lack of an updated audit, Tony Goetz NV remains a Dubai Good Delivery (DGD) member today. It had passed the DMCC’s audit on responsible practices in 2015 based on its 2014 activities – before AGR was launched” (The Sentry, P: 13, 2018).

“According to documents reviewed by The Sentry, Goetz sought the intercession of President Museveni in 2014 in order to gain a 10-year tax break for AGR. Three years later, that became a reality when President Museveni announced a pending zero percent tax rate essentially benefitting only AGR. This, in turn, potentially relates to a fourth FATF AML red flag that is applicable to the Goetz network: registration of a trading company in a tax haven even though its business relates to another jurisdiction. While Uganda is not a traditional tax haven, as a practical matter, it presently serves as one for gold refining since Uganda changed its tax structures on gold to attract gold companies” (The Sentry, P: 17, 2018).

What we are seeing as some would be shocked, other would see the deliberate action of the President to support and earn of the illegal gold trade, also ensure the business in Uganda. That the DRC can be used and illegally export the gold, where the business-partner are acting on behalf of the President that has made the arrangement for the refinery in Uganda. This has been done, while also giving AGR a tax-holiday, so that the production will not be taxed and neither able to follow ordinary customs. That means the President and brother together with Goetz knows perfectly well what happens from the DRC to the World Market. They are earning fortunes on the illegal gold trade and is single-handed securing the profits because of it.

The Sentry has done great work collecting the documentation for this and proving their allegations. As others has done to of late. They have extended their work and shown more meat to the bones. Making it a juicy stake. That is showing the acts of violence and killings in the DRC are benefiting the Ugandan President to this day. He is earning wealth on the misery of the Kivu’s, as they by doing this trade keeping up the in-security there. So, that the illegal gold trade can persist… and linger on.

President Museveni knows this and blames the MONUSCO still for being there to long. But his reach and his hands are in the cookie jar. As it has been since he supported Laurent Kabila to overthrow Mobutu. Peace.

Reference:

The Sentry – ‘The Golden Laundromat – The Conflict Gold Trade from Eastern Congo to the United States and Europe’ October 2018

RSA: EFF Welcomes the Rejection of Morocco to host the FIFA Soccer Wold Cup (12.06.2018)

Fresh UN Report: Illigal Gold Smuggling from the DRC to Uganda!

There been new reports on the gold smuggling to Uganda from Democratic Republic of Congo (DRC). However, it needs more reporting, as this illegal trading and looting of mineral resources from the Republic needs to be put a spotlight on. As this trade is feeding illegitimate government and militias whose using force against innocent civilians and citizens in general. This report that is reported in the report from the Group of Experts are expelling a deep, but also a volatile story of how they are transporting and getting the illegal gold into the market.

We can wonder if this gold enters the Gen. Salim Selah owned African Gold Refinery Limited in Entebbe, before flying away into the World Market through the brokers and traders there. We can question that, as the government on both sides of the border is accepting this. They are both earning on this and not registering it. Therefore, the location of extraction is kept secret, while the production and the paperwork is kept under the radar. That is why the consumer cannot know under what condition the gold came from and that is worrying. The smuggling, the lack of paperwork and forging of documents shows they are really pushing the boundaries to get into the global markets.

Also, this shows how blatant disregard for maladministration, they have done deliberately and not cared about the public.

“Smugglers used the road to Mahagi, where they travelled either by motorbike, taxi or even truck. At the border with Uganda, when they were eventually checked, they bribed customs officials on the Congolese side. All of the Group’s informants on this issue confirmed that, in Goli, on the Ugandan side of the border, they were not asked to present papers or explain the origin of gold that they carried. Mahagi is a long-established hub of the smuggling route” (P: 22)

“Two brokers told the Group that they mainly carried gold from mining sites in Kawa and Monbgwalu in Djugu territory. When they arrived in Goli, they would meet with a broker from the Democratic Republic of the Congo, who would accompany them to sell to Kampala-based dealers. One of the brokers told the Group that, until February 2018, he travelled to Kampala every two weeks with about 3 kilograms of gold (approximately $132,000) 20 per trip” (P: 22-23).

“The Group confirmed that, in Entebbe Airport, companies sell empty seats. As previously documented, empty seats are used by smugglers to transport gold concealed in hand luggage. Two individuals associated with the gold sector in Kampala, one Kampala-based gold broker from the Democratic Republic of the Congo and one migration officer stationed at the airport in Entebbe told the Group that, despite the official claim that minerals cannot leave the country without proper paperwork, gold smugglers continue to travel either without documentation or with forged documents. The migration officer and the broker told the Group that the owners of gold being trafficked do not travel themselves but use couriers who fly to Dubai to deliver the gold to buyers there. The two sources added that couriers can operate easily because they bribe customs and security officers at Entebbe airport” (…) “Two Ugandan nationals working for two airlines operating from Entebbe informed the Group that they are not requested to check gold in hand luggage. In the course of its current mandate, the Group held discussions with senior officials of eight airlines operating in and out of the Great Lakes region, who said that their primary role in checking passengers was to make sure no one was carrying anything that could jeopardize the security of the plane, a policy focusing almost entirely on weapons and explosives. The Group is of the view that gold transported on commercial aeroplanes should not be banned as it represents a key form of export for responsible artisanal and small-scale mining activity that observes the requisite due diligence guidelines. However, there is a need to address the loopholes related to the illegal transportation of gold carried in hand luggage on commercial aeroplanes” (P: 24, 2018).

Clearly, the illegal trade of gold should be looked into and be a worry for the international community, as the is funding militias and illegal activity within the DRC. This should not be overlooked, the clear indication of smuggling gold and also not registering the conflict minerals. Therefore, this is sophisticated and using all means to bribe lower level civil servants on both sides, to secure the trade of this can go-on. Both republic’s can do something about this, if they cared or had incentive to do so. However, they seem pretty fine and dandy with this activity. As the state and the close connected activity with the elites who are sponging the funds made from it.

That is why even President Museveni was there for the opening of the Gold Refinery in Entebbe. That shows that the Republic have no trouble with illegal smuggling of gold from the DRC. Peace.

Reference:

United Nations Security Council – ‘ Final report of the Group of Experts on the Democratic Republic of the Congo’ (04.06.2018).

In Uganda the President’s family directly involved in the Gold Industry and the export of conflict minerals!

“Basically what we do is taking advantage that I’m in government, it’s not a conflict of interest, I don’t use my position for conflict of interest issues, but it’s an advantage in itself.” – Jackson Mayanja, TMT Mining and DGSM employee, August 2016

When you thought the Mineral Industry in the Republic of Uganda couldn’t be questioned more. There is a Global Witness report on the subject. That clearly shows signs of common cronyism and National Resistance Movement (NRM) who uses their connections to get better licenses and deals. The NRM and President Museveni, together with family members are in the midst of the transactions surrounding the Mineral Industry. Especially considering also the well-known fact that Ugandan government are helping with exports from South Sudan and Democratic Republic of Congo. This been done with shaky licensee deals.

The report is spelling how Gen. Salim Selah or President Yoweri Museveni are parts of the inside the mineral trading and export from Uganda. The other NRM cronies and the brown envelopes that pays for the licenses and the insider knowledge of DGSM gives an edge. Instead of being ethical and protocol through the laws, instead it is more of the personal connections the owners of licenses has. Take a look!

Gen. Salim Selah and Ragga Dee connected with minerals:

“Senior political figures appear ultimately to call the shots. Their patronage facilitates access to the sector and allows investors, including political elites, to flaunt the law. In one example, a small group of Belgian and Ugandan businessmen, with close ties to the President, were found to be shipping out hundreds of millions of dollars’ worth of gold, apparently paying barely any taxes and failing to disclose the origins of the gold. Their exports may include gold which could be fuelling conflict in neighbouring DRC and South Sudan. In the absence of government data and evidence of rigorous supply chain checks it is not possible to tell” (…) “In one example, an Australian home loans broker with no evident experience of mining, was able to secure licences for over 6000km2 of land (more than any other company or individual Global Witness has seen) by making payments to DGSM officials, and later teamed up with pop star turned businessman, Ragga Dee, who has close ties to the president’s brother Salim Saleh” (Global Witness, P: 7, 2017).

Bwindi National Park:

“One licensee is NRM MP Elizabeth Karungi, whose story is emblematic of how well placed individuals claim to be able to use their political connections for personal gain. The woman representative for Kanungu District told Global Witness that she was able to carry out mining activities in Bwindi because the former tourist minister Maria Mutagamba was a “good good friend.” It is remarkable that the DGSM saw fit to issue her with a licence in this area despite the obvious threat to the wildlife there. In a letter to Global Witness dated January 2017, Mutagamba claimed that she did not know who Elizabeth Karungi MP was, however Karungi was on the Committee of Tourism, Trade and Industry which held meetings with the Minister during her period in office. The DGSM Commissioner told Global Witness that mining activities in national parks require the permission of the Uganda Wildlife Authority”. (Global Witness, P:10, 2017)

Kilembe National Park:

“One of these is the Tibet Hima Mining Company, which won a multi-million dollar contract to re-open the former colonial Kilembe Copper Mines on the border of Rwenzori in 2013. Two DGSM staff told Global Witness that the President instructed the government to partner with Tibet Hima. Global Witness wrote to President Museveni in December 2016 but has not received a response. As part of the deal, Tibet Hima also received two mining exploration licences that run deep into the national park and right up to the DRC border. The DGSM Commissioner told Global Witness that Tibet Hima had been awarded the concession through a competitive bidding process” (…) “As well as obtaining exploration licences inside a World Heritage site, Tibet Hima appears to have been carrying out operations at Kilembe – one of the largest mines in the country – without an Environmental Impact Assessment (EIA), which is required by law. The company produced an environmental ‘project brief’ in February 2015, but this did not cover the activities witnessed by Global Witness staff at the site in November 2015” (Global Witness, P: 11-15, 2017).

Africa Gold Refinery:

“African Gold Refinery is run by a small group of Belgian and Ugandan businessmen, including former government minister Richard Kaijuka, who are managing to ship hundreds of millions of dollars’ worth of gold out of Uganda without disclosing its origin and paying very little tax in the process. They are the owners and managers of a newly built gold refinery on the shores of Lake Edward near Entebbe airport. Remarkably, Barnabas Taremwa: brother-in-law to Salim Saleh, Museveni’s most famous brother and Uganda’s de facto number two, told Global Witness that he had helped negotiate the company’s huge tax breaks with the government (corroborated by documents seen by Global Witness) and set up supply routes for the refinery” (Global Witness, P: 27, 2017).

“When an undercover Global Witness staff member spoke to Kamuntu in November 2016, he claimed that he continued to export 10,000 tonnes of iron ore a month out of Uganda under the waiver he received from the President. He told us he ships out minerals as “samples” in order to avoid taxes. He explained that he was the only person in Uganda able to export iron ore. He also told Global Witness that he deals in minerals originating from the DRC, labelling them as Ugandan to get around regulations. Kamuntu said that he exports tantalite from the DRC, labelling it as iron ore to pay less tax. If this is true then conflict minerals from Eastern DRC could be entering the international supply chain via Kamuntu’s shipments. Perhaps most remarkable of all is the fact that Kamuntu told us that “as a local person” he had paid US$10,000 to a third party to get a meeting with the President, in order to seek the permission he needed to continue with his business. (The price for foreign investors is US$15,000, according to Kamuntu.) A letter from the President to the Mining Minister explains that the two met at a private Chamber of Mines and Petroleum event. Global Witness wrote to President Museveni and Mr Kamuntu in December 2016 but never received a response” (Global Witness, P: 42, 2017).

AGR ownership:

“Alain Goetz, who is also the CEO of the company, a Belgian national, is one of the most famous dealers of Congolese gold in recent history. During the 90s the Alain and his father Tony, who died in 2005, were reported as dominating gold exports from the Congo through their networks to Belgium and later Dubai” (…) “Mr Barnabas Taremwa, who previously worked for AGR is the brother in law of Salim Saleh, the President’s brother. AGR told Global Witness in a letter dated January 2017 that Taremwa’s sister and Salim Saleh had divorced three years ago, seemingly in an attempt to distance themselves from the General. However, Salim Saleh told Global Witness that “Barnabas Taremwa is still my brother in law and it is false and an insult to me for you to state that I divorced his sister.” (…) “Richard Henry Kaijuka is the Chairman of AGR.160 According to an article in Africa Energy in June 2011, Mr Kaijuka is “a childhood friend of President Yoweri Museveni, who fell out with the regime after he opposed a controversial constitutional amendment in 2005 that removed presidential term limits.” (Global Witness, P: 73, 2017).

Infinity Minerals:

“Ragga Dee, whose real name is Daniel Kyeyune Kazibwe, is a popstar turned businessman, famous as much for being the first musician in Uganda to own a Hummer as he is for his music. Ragga Dee does not appear on any of the company documents relating to Ellie’s companies, however while discussing his business interests in an interview with Uganda’s Observer newspaper in 2015 Ragga Dee said, “I also mine for gold under my other company, Infinity Minerals” (…) “Global Witness has identified two sales of Infinity’s rights to other investors after Ellie left Uganda. In the first instance a company called Afrisam Cement Uganda Limited paid US$75,000 for prospecting access to licence number EL1083 which was held by Infinity” (…) “The whole episode raises serious questions about the way that licences are awarded, the licence transfer process, and the accuracy of the mining cadastre. If the information on the cadastre is inaccurate or wilfully misrepresented this has serious impacts for the governance of the sector. While AfriSam appears to have received its licence through the proper channels at the DGSM questions remain about the way that Sunbird acquired its licence. In a letter dated January 2017, Salim Saleh told Global Witness that the Big Picture Corporation, a company which is part owned by his wife, is “one of the companies which duly applied for, and inherited, the expired Licences previously held by Infinity Minerals Limited, under TN 2370.” According to the Cadastre, however, this application, which was made after the licence had expired, was rejected” (Global Witness, P: 48 – 51, 2017).

Special Export:

“The latest OAG report noted that during the financial year 2015/16, the DGSM assessed royalty and awarded export permits for only 93kgs of gold worth just over US$3 million. However, reports from the Customs and Excise Department of Uganda Revenue Authority indicated that 5,316 kgs of gold had been exported with a total value of US$195 million. Accordingly, Government should have collected between US$2 million and US$9.7 million in royalties depending on the applicable rates of 1% and 5% for the imported or locally mined gold respectively” (Global Witness, P: 74, 2017).

If you didn’t think there was anything fishy in the trades, in the Mineral Ministry and the Mineral Resources Exports in Uganda. This here reports proves the amounts of gold exported combined with the gold extracted. That these numbers doesn’t add-up. This together with the NRM leadership and the closest partners in and around the President. Therefore, it is even his own family involved in the mineral industry. This reports is saying what people and rumors has been, therefore, the implications of the government, the president in the business, and also they are involved in exporting and cleaning conflict minerals for the exporters of South Sudan and Democratic Republic of Congo. This is not surprising for the ones following the situation. Peace.

Reference:

Global Witness – Under-Mined (June 2017)

Statement by the African National Congress on the Readmission of the Kingdom of Morocco to the African Union (31.01.2017)

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)

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 27^th 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 15^th 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 15^th
• 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.

2. 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.

3. 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.

4. 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.

5. 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

6. 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.
7. 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.
8. 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.
9. 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

10. 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.
11. 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.
12. Are there lessons to be learned?

Taking stock of the experience in the Kenya cases

12. 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.
13. 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

14. 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.

15. 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

——–

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

[Wish I had a bigger Microphone] The World right now is too Bloody…

There aren’t only murders and mysteries on the telly, its real life and not fiction as the Syrian civil war continues rapidly without whomever force and whomever ally around Aleppo or other check-points where the Presidents force, rebels or ISIS are shooting. The bullets don’t have names, but the men and woman on the side-line and at the battle who dies does; the men and woman who loses their life for themselves or a Nobel-cause.

As much as there are forces battling inside the Iraq nation as Government Forces are attacking together with American soldiers ISIS stronghold around Mosul. There are continued fighting inside of Afghanistan. Still battles between civilians and the Indian Army inside the Kashmir state that has issues there and on the Pakistan side of Kashmir. The long battle for freedom or justice, as the Kurds are battling for in Syria, Turkey and in Iraq; being the minority in the middle of the civil war in Syria and Iraq.

That is just some places, as the deteriorating state of affairs are attacking all sort of freedoms inside Ethiopia, as the army and Aghazi squad are killing and harassing the people’s in Amhara and Oromia states. Together with the arrests of bloggers, silencing media outlets, and detaining demonstrators, burning the homes of people and inflicting violence on the citizens. This state of emergency is used as a useful tool to oppress, silence and make sure the violence and killings doesn’t get out; while the Central Government works to find reasons and solutions to ways of total control of minds and bodies in the states of demonstrations against the Addis Ababa regime.

In Burundi the central government are using the Police and army, together with the Imbonerakure that are detaining, harassing, killing and torturing civilians, silencing the opposition and the ones not loyal to the  President Pierre Nkurunziza narrative of keeping power by any means. The Burundian Government has claimed that the Rwandan Government has created armies and guerrillas that wished for a coup d’état against the Nkurunziza regime. Therefore the fleeing civilians are in the wind as the Rwandan government has been wonder for a spell, if they would banish the Burundian refugees a place in the country.

While in the Democratic Republic of Congo, several guerrillas are still running wild, burning and killing villagers in the States of North and South Kivu, Katanga and so on. Where the foreign based groups that have been started in Rwanda and Uganda, continues to battle the locals for the valuable minerals; as even today a former M23 Commander Sultani Makenga who been in Uganda has crossed with a militarized group, surely from Kisoro as before to cause more havoc in the Kivu’s. The ADF-NALU, Mayi-Mayi and others doesn’t create enough death and crimes against humanity already, as the MONUSCO and FARDC haven’t the ability or will to silence them.

In South Sudan, the internal battle that started in July 2016, the resurgence of skirmishes between the SPLA/M and the SPLM/A-IO who are the TGNU and the Opposition party, which is the armies for President Salva Kiir and his former First Vice-President Riek Machar. That has since July battled each other with forces, in Western Bahr El Ghazal State, Equatoria State and Upper Nile State. There been fighting between the two in other states, but just show how big and powerful the forces are. The South Sudanese civilians are the losers who flees to Ethiopia, Uganda and Democratic Republic of Congo, even in Congo because the Opposition we’re there has been asked to leave to other destinations. Therefore the internal power-struggle those fear of genocide, as still creating implications inside other nations.

In Somalia the Al-Shabab, the different state continues to have infighting together with the AMISOM mission. The running battles for land between Galdumug Interim Administration and the Puntland Government inside the Federal Republic of Somalia. Doesn’t really help for a peaceful session and making dialogue in the war-torn nation where Piracy and Khat been the ways of securing funds for ammunition and AKs, not for building a state and security.

Eritrea is closed and the continuation of the flow of refugees, as the internal controlling central government that forces the freedoms and liberties, as the men and woman does what they can to even enter Ethiopia, where they are badly treated. Eritrean reports are staggering as they are even supporting internal guerrillas in Ethiopia and Djibouti to unsettle their neighbours.

There are wars and running battles between government forces and rebels in Central African Republic, Mali, Mozambique and so on. This is happening in silence and without little flash, even as the ones are guerrillas like Boko Haram that are going in between Nigeria and Cameroon, to stop the Government from functioning and spreading fear of locals.

What is worrying how these actions continues, and how there are other I could mention, the issues in Libya, the Algerian complex and the Western Sahara colony of the Kingdom of Morocco.

The death that dies in silence, in the midst of homes, villages where their families have been living for decades, while big-men fight like two elephants; the grass get hurt, but the big-men be fine. The same is with all of these civil wars, the civilians are dying, the societies are deteriorating, the central government are controlled by little amount of people instead of procedure and rule of law.

The worry is how it becomes pro-longed, how the innocent dies and the power-hungry survive and the lucky get refugee somewhere else in uncertainty, like for how long can they stay, as been seen with the Kenyan Government work to get rid of Somali refugees in Dadaab Refugee camp during this calendar year, while the Somalian Federation if far from peaceful. Even as the Ethiopian troops has went home again surely to use their knowledge to chop heads in Amhara and Oromia. That is what they do now, they just doesn’t want people to know about it.

We shouldn’t allow this actions to happen, this killings, this violence and the silence of freedom, liberty and justice to our fellow peers, we should act upon it, question our power-to-be and the men who rules over these armies, the ones creating the havoc and the ones who are behind the crimes against humanity. Those are the ones that earning money on the wars and the ones that doesn’t want the words on the acts; those are the worst ones in it all as they are accomplices to destruction of lives and societies as we speak. Peace.

Eritrea: UN Commission has urged referral to the International Criminal Court (28.10.2016)

The Commission has concluded that the Government of Eritrea has neither the political will nor the institutional capacity to prosecute the crimes we have documented.

GENEVA, Switzerland, October 28, 2016 – States must heed the pleas of countless victims of crimes against humanity for justice and accountability, Sheila Keetharuth of the former UN Commission of Inquiry on human rights in Eritrea urged the UN General Assembly today. The Commission has recommended that the situation in Eritrea be referred to the International Criminal Court.

Speaking for the Commission of Inquiry, Keetharuth, who is also UN Special Rapporteur on the situation of human rights in Eritrea, highlighted the Commission’s clear findings that crimes against humanity have been committed since 1991 by Eritrean officials, adding that such a dire assessment left no room for “business as usual” in the international community’s engagement with the Government of Eritrea.

“The crimes of enslavement, imprisonment, enforced disappearances, torture, other inhumane acts, persecution, rape and murder have been committed as part of a widespread and systematic campaign against the civilian population. The aim of the campaign has been to maintain control over the population and perpetuate the leadership’s rule in Eritrea,” Keetharuth told the UN General Assembly.

“The Commission has concluded that the Government of Eritrea has neither the political will nor the institutional capacity to prosecute the crimes we have documented. The Commission therefore recommends that the UN Security Council refer the situation in Eritrea to the prosecutor of the International Criminal Court and that the African Union establish an accountability mechanism.”

“My plea to you, Excellencies, on behalf of the three members of the former Commission of Inquiry on Human Rights in Eritrea, Mike Smith, Victor Dankwa and myself, is for you to pay heed to voices of victims of crimes against humanity in Eritrea.”

Keetharuth said the Commission had found that there was no material change in the country that could potentially have a positive effect on the situation of human rights.

“There is still no constitution, no parliament where laws are discussed, enacted, and where questions of national importance are debated; indefinite national service persists, with its adverse impacts on individual rights; there is no free press and no NGOs, except for Government-sponsored ones. The population lives in fear and the Government still controls their daily life, making the enjoyment of all human rights and fundamental freedoms by all Eritreans a remote possibility,” she said.

She noted that while several foreign delegations, journalists and others had been invited to visit Eritrea over the past year, the rampant human rights violations taking place in isolated locations and detention facilities were not apparent to the casual visitor.

Keetharuth noted that Eritreans were among the largest numbers of African nationals seeking asylum in Europe and that the overall recognition rate for Eritrean asylum seekers in European countries remained high.

“The findings of the Commission underscore that it is not safe to forcibly return those who have left Eritrea. The Commission, in its first report, documented that individuals forcibly repatriated, with a few exceptions, have been arrested, detained and subjected to ill-treatment and torture,” she said.

“I appeal to Member States to grant Eritreans access to their territory and asylum procedures. I strongly reiterate my call to protect all Eritrean asylum-seekers from refoulement and to refrain from any forced repatriation to Eritrea or to third countries where they may still be at risk or unwelcomed.”

EU Court of Justice Advocate General Finds that Western Sahara not part of EU-Morocco Trade Deal (14.09.2016)