Vanguard (Lagos)
Chidi Anselm Odinkalu
6 February 2004
opinion
London — In asking the Office of the Prosecutor (OTP) of the newly established International Criminal Court (ICC) to investigate egregious abuses by the rebels in Northern Uganda, Yoweri Museveni, Uganda's President has acted clever. He has given the OTP something to do and scored a first for himself and Uganda - the first case to be referred to the ICC. The real question now is how wise the OTP will be in utilizing this opportunity.
On 29 January 2004, Argentine lawyer, former Harvard Professor and the Prosecutor of the ICC, Jaime Moreno Ocampo, addressed the world press at the Intercontinental Hotel in London in the company of Museveni. Moreno Ocampo was there announced that he had accepted Museveni's request to investigate violations committed by the Lord's Resistance Army (LRA, as the rebels in northern Uganda are known), in the long running civil war in Northern Uganda.
This is the first case to make the dockets of the ICC. The international agreement setting up the Court was adopted by over 120 countries in Rome in July 1998. It entered into force early in 2002. The headquarters of the Court is in The Hague. It exists to prosecute cases that national courts cannot or do not wish to handle. Its role is confined to cases that are considered most heinous, such as war crimes, crimes against humanity and genocide.
Only violations occurring after the entry into force of the Statutes in 2002 can be investigated by the ICC. The Security Council or member governments to the ICC Statutes may refer cases to it. The Prosecutor himself may also initiate a case by himself if the judges of the ICC permit him.
The irony of Museveni, himself the first African guerilla leader to shoot himself to power through a bush war, resorting to the ICC is self evident. He called his guerilla army the National Resistance Army, which was later to be transformed into the Uganda's regular army as the Uganda Peoples' Defence Force (UPDF). Through Moreno Ocampo, Museveni may have found a new way to fight an old war, a war that he's been unable to win.
Since taking over power in Uganda in 1986, Museveni has battled an odd combination of shamans, bible thrashers and bashers, and genocidaires on different sides of the Ugandan border. In 1986, Alice "Lakwena" Auma, a young woman from Northern Uganda assembled a force of young people. She called them the Holy Spirit Mobile Forces and gave them a simple mission: to rid Uganda of human "impurity", a category that included Museveni's conquering guerilla army, soldiers, sorcerers and politicians. Lakwena gave the government a good fright before fleeing in defeat to neighboring Kenya half a decade later.
Lakwena's cousin, Joseph Kony, raised the LRA from the ashes of the Holy Spirit Mobile Forces to install a Christian theocratic government in Uganda based on fidelity to the 10 commandments. From base camps allegedly in southern Sudan, the LRA has successfully captured and retained control of significant territory in northern Uganda. The LRA's war has employed a campaign of fear, scorched earth and terror against civilian populations, including children.
But, so, many say, has Uganda's government. In the past seven years, Uganda's government has taken the war to the LRA in the North. To run this operation, Museveni persuaded his brother, easily Uganda's most decorated soldier, General Salim Saleh, out of retirement. General Saleh did his best, which was ultimately not enough. Allegations of war atrocities, admittedly not on the LRA scale, trailed the operations of the UPDF in Northern Uganda. General Saleh was later moved to the Democratic Republic of the Congo where he was to be indicted by a United Nations investigation for alleged complicity in the plunder of the DRC's resources. After this, Saleh's brother, the President, quietly eased him aside. Saleh is now under investigation for corruption on Museveni's orders.
By referring only the crimes of the rebel side to the Prosecutor, President Museveni blocks an investigation into any allegations against the conduct of his own UPDF forces in Northern Uganda. But this is not all. It is now an open secret that Museveni is interested in running for an unconstitutional third Presidential term in Uganda's presidential elections in 2005. He could calculate that if Moreno Ocampo can flush out the LRA from the north, he (Museveni) would have the voters of Northern Uganda in his debt.
Having changed the Constitution to enable him run for another term, Museveni can then win the votes of a grateful north.
The one little glitch here is how to catch the LRA's leaders. Joseph Kony is allegedly holed up in base camps in Uganda's northern neighbour, Sudan. Sudan is presently busy burnishing its international image. This is an incentive to turn in the LRA. In Naivasha, central Kenya, the government of Sudan is putting final touches to an agreement that will bring an end to its five decade long civil war with the Sudan Peoples' Liberation Army in the South.
Meanwhile the war in the Nuba in Sudan's west, intensifies. Prudence would argue against too many wars on too many fronts.
So, the requirements of Khartoum's own internal calculations may argue for delaying any action on tracking down the LRA for now. The USA, the most influential guarantor of the Naivasha Talks, has no goodwill towards the ICC or its Prosecutor. Washington cannot be counted on to put any pressure on Khartoun to locate or turn in the LRA leadership. But Museveni is not yet out of favour in Washington. He may indeed be counted as one of Washington's more trusted clients in Africa. He may wish to get Washington's help in leveraging Sudan's co-operation. That will be tricky. Kenya, the host of the Naivasha Talks, would very much wish to stay out of this one if it can help it. No one wants the Sudan talks to fail. Game theory must have a name for this kind of situation. It fails me.
African leaders with dynastic designs on power and rebel irritants in their way will be licking their chops as they enviously study what the ICC makes of this. The Museveni Manouvre as this may in the end be called, is all gain and no pain. It's a no risk, low cost, high impact manouvre with three elements: it judicializes civil war; externalizes internal conflict; and transfers the cost of prosecution. If it fails, the ICC and a nebulous international community carries the can. If it succeeds, then Museveni reaps immediate political gain with an unconstitutional third term and a lasting legacy of far reaching international dimensions. As far as political manouvres go, it is clever beyond compare. For the quite likeable Jaime Moreno Ocampo, this chalice with mixed potions comes with a health warning. The future of the ICC may depend on how well he reads it.
Chidi Anselm ODINKALU is Africa Programme Director, Open Society Justice Initiative and Jeremiah Smith Jr. Visiting Professor, Harvard Law School
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