Prosecuting International Crimes in Africa - PULP - University of ...

Prosecuting international crimes by the LRA in Uganda 219
petitioner argues that this section is inconsistent with articles 23(6)(a) and
128(1) of the Constitution. Article 23(6)(a) provides that where a person is
arrested in respect of a criminal offence the person is entitled to apply to
the court to be released on bail, and the court may grant that person bail on
such conditions as the court considers reasonable.
Additionally, section 59 of the ICC Act which makes provision for
freezing property at the request of the ICC is contested. The petitioner
contends that this provision is inconsistent with article 26 of the
Constitution which guarantees the right to property. Section 90 of the ICC
Act, which allows the ICC prosecutor to conduct investigations on
Ugandan territory is contested as inconsistent with articles 120(3) and
120(6) which vest powers of investigation and prosecution in the Director
of Public Prosecutions. Lastly, the petitioner contests section 94 of the ICC
Act, which prohibits judicial review of judgments or orders of the ICC by
Uganda courts. The provision is contested as being inconsistent with
article 139. This provision gives the High Court unlimited original
jurisdiction and such appellate jurisdiction as is conferred by law.
Although the response of the state, among others, has been to dismiss
the petition as misconceived, an objective assessment shows that the
petition raises a number of fundamental questions. The most important of
these relate to procedures and processes for the domestication of
international treaties. As already mentioned, Uganda is a dualist state,
hence, international treaties acquire domestic legal effect only after
ratification by an Act of Parliament. 120 As a matter of fact, Uganda has
signed and ratified a number of international treaties. In spite of this, only
a few of these instruments have been translated into domestic policies or
laws. 121
Where the government has taken steps to ratify domestic treaties, as is
the case with the Rome Statute, the process has not followed a
comprehensive review of domestic legislation to avoid inconsistencies.
Academically assessed, it is this flawed process that Kezaala’s petition in
effect sets out to challenge. Indeed, one needs not be a constitutional or
international law expert to identify some of the inconsistencies between
the ICC Act and the Constitution as pointed out in the petition. An
example is the inconsistency relating to the presidential immunity clause.
That the inconsistencies between the ICC Act and the Constitution were
at all material times known to the government is evidenced by concessions
made by senior government officials. 122 What is left to be seen is how the
court responds to this interesting petition.
120 See Ratification of Treaties Act, Ch 204, Laws of Uganda.
121 African Peer Review Mechanism Country Review Report 7 (January 2009) 282.
122 See ‘ICC conflicts with constitution’ The New Vision 12 November 2009.