By Moses Ngorok, Martha Chemba & Neona Kristina
In true Big African man fashion, President Museveni during his inauguration speech on 12th May 2016 questioned the usefulness of the International Criminal Court (ICC); a court whose help he once sought in 2003 to deal with the Lord Resistance Army (LRA), a rebel group then present in the northern part of his country. Equally to mention that Uganda is still signatory to the Rome statute, the law establishing the ICC while Domenic Ogwen, a Ugandan citizen is still under trial before the ICC.
In an act of reprimand, the US and European envoys attending the inauguration ceremony quietly glided out. The US envoy later explained themselves in a press conference that it was indeed in demonstration of the President Museveni’s ‘disparaging remarks’ about the ICC that they walked out.
It is the view of these authors that actions of Uganda’s President and the attending envoys led by US Ambassador Deborah Malac although mostly politically significant form the basis of a moral conundrum which these authors wish to explore.
th May 2016.
Where therefore does the moral question lie concerning President Museveni’s actions on the day? We won’t provide footnotes here but if you googled this up, you will find an array of articles citing the increasing extent of dissent by African heads of state to the ICC—Kenya’s, Sudan’s and other African heads of state to be more euphemical than Uganda’s president was, think the ICC should go south! ; But should President Museveni be joining the queue?
We mention above that Uganda is signatory and even mention that President Museveni has before utilized the services of the ICC to his and his country’s benefit. Why then a reversal in opinion?! ; sufficing that Museveni and his country are much entitled to a change in opinion! If the reader cares, another google search will bring you scours of articles where African leaders and others have termed the ICC discriminatory in as far as it seems to only target Africans—which statistically speaking is a very true assertion—only one arrest, indictment or issued warrant of arrest has been from outside Africa—that is from Georgia!
A change of mind or opinion is quite frankly alright were we daily see great advocacy initiatives for the respect of freedom of expression and right of belief. In this guise, probing President Museveni’s May 12th actions would seem to be choosing to work at cross purposes with the above key human rights values. Redeeming the authors from this catch 22 situation though are an ancient English idiom legal maxim.“ You cannot have your cake and eat it as well”- the idiom says and “ He who comes to equity must come with clean hands”- the legal maxim states.The former basically means that one cannot or should not try to have two incompatible things. The latter, is brief states that the law of equity or if you want to call it fairness, will not grant relief from a self-created hardship.
Both idiom and proverb are easily applicable to President Museveni’s lock of horns with the US government over the ICC. In the context of the idiom, it rings of hypocrisy and is morally repugnant for President Museveni to castigate the ICC yet Uganda and Ugandans are relying on the ICC for justice.
How then about Ambassador Deborah Malac’s and by extrapolation, the US government’s actions?
Unlike Uganda, the US government is only a signing state and not signatory to the Rome statute. It therefore under international law is not bound by the statute. In this light it seems peculiar for the US to play watch dog for the ICC--that is to ensure state compliance with the provisions of the Rome statute. The US government’s actions concerning the ICC are incompatible with the level of its legal commitments to the ICC. Why as a forerunner in war against terror and overall protection of human rights wouldn’t the US ratify the Rome statute? - The compatibility of US ideals regarding human rights protection and those of the ICC are as good as bread and butter. To not have ratified the Rome statute is therefore quite quizzical. No surprise that there is with the statistical proof that exists, an emerging notion that the ICC is designed as a court for Africa and Africans!
Adding to reservations about the motives of the ICC is the fact that unlike the US government’s thinks that ratifying the ICC would undermine its sovereignty, it is seen that to the contrary, the US and other nations which are permanent members of the United Nations (UN) Security Council seem to operate on higher ground when it comes to the implementation of the Rome statute. A method of institution of cases before the ICC is by referral of a case by the UN Security Council; a method that was applied to President Omar El Bashir’s case. As a permanent member of the UN security council, the US in effect therefore gets a say on who is to be tried or not tried by the ICC; a court who jurisdiction the US has yet to acknowledge!
In light of the idiom and legal maxim earlier elucidated upon, the US’s actions would seem to be contradicting its legal level of commitment to the Rome statute. Trying to superintend over a court whose jurisdiction one doesn’t not recognize would seem as hypocritical as President Museveni’s scathing remarks about the ICC have earlier been described.
In the grand scheme of things though, it’s the political and not moral questions that matter, its issues of democracy and not theocracy that stand out. Politics in every way, the Democrats will have to forgive us ‘trumps’ reason, justice and morality. Where the very concepts and idea of the ICC as a court to accord justices to victims of war crimes and other gross acts of violence is important, is replaced with political objectives.
We cannot claim to know the true thoughts of either President Museveni or the US government on the ICC but what remains rife though is that each party’s actions on 12th May 2016 seem discordant with their current level of commitment to the Rome statute. It is our view that President Museveni and Uganda should do more to respect their duty as a signatory to the Rome statute and in the same way the US if it wishes to better play a watch dog/ superintending role concerning the ICC should legally commit itself more to the court- In this regard being both hot and cold won’t work for both parties.