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

Positive complementarity and the fights against impunity in Africa 273
system is able to deal with the northern Ugandan conflict by setting up the
WCD. On 10 March 2010, the Parliament of Uganda passed the Rome
Statute of the International Criminal Court 2006 Bill 164 into law, thereby
incorporating provisions of the Rome Statute into Uganda’s domestic legal
system. 165 President Museveni subsequently signed the bill into law
shortly before the commencement of the Review Conference. 166 The
Ugandan government recently charged Thomas Kwoyelo – a former LRA
commander – before the WCD. 167
The knotty issue that is yet to be resolved is whether the WCD is an
answer to Uganda’s initial inability to hold members of the LRA
accountable and whether the government can use the International
Criminal Court Act of 2010 to try individuals for crimes committed in
northern Uganda in the WCD in contravention of the constitutional
provision of non-retroactivity. 168 It has been argued that if a credible war
crimes court is established in Uganda, the ICC may decide to declare the
LRA case inadmissible. 169 By creating the WCD, Uganda is taking steps
to institute accountability mechanisms that the ICC was created to
promote through the process of positive complementarity. 170 It is therefore
argued that the ICC should support the effective running of the WCD,
thereby assisting in the development of a strong national judicial system in
Uganda.
Can Uganda possibly prosecute members of the LRA with the current
state of the criminal justice system? Would the prosecution be seen as
shielding members of the LRA from the ICC? With the referral of the
conflict to the ICC, Uganda automatically submitted its jurisdiction over
members of the LRA to the ICC. But under the Rome Statute it can bring
an application to suspend the activities of the court based on challenges to
the jurisdiction of the ICC or admissibility of a case. 171 It would be up to
the decision of the ICC judges if there are reasonable grounds to believe
164
‘MPs Pass ICC Bill’ New Vision 10 March 2010 http://allafrica.com/stories/
165
201003110195.html (accessed 11 August 2010).
ICG ‘LRA: A regional strategy beyond killing Kony’ Africa Report – 28 April 2010
http://www.crisisgroup.org/en/publication-type/media-releases/2010/africa/lra-a-
166
regional-strategy-beyond-killing-kony.aspx (accessed 11 August 2010).
The International Criminal Court Act 2010 Uganda Gazette 39 CIII, 25 June 2010,
assented to on 25 th May 2010 http://www.beyondjuba.org/policy_documents/
167
ICC_Act.pdf (accessed 10 November 2010).
W Anyol ‘Former LRA commander sent to war court’ The New Vision 6 September
168
2010 http://www.newvision.co.ug/D/8/13/731176 (accessed 14 September 2010).
Art 28 (7) Constitution of Uganda, 1995, provides that ‘[n]o person shall be charged
with or convicted of a criminal offence which is founded on an act or omission that did
169
not at the time it took place constitute a criminal offence’.
A Dworkin ‘The Uganda-LRA war crimes agreement and the International Criminal
Court’ 25 February 2008 http://www.crimesofwar.org/onnews/news-uganda2.html
170
(accessed 11 August 2010).
W Rist ‘Why Uganda's new war crimes court is a victory for the ICC’ 29 May 2008
http://jurist.law.pitt.edu/forumy/2008/05/why-ugandas-new-war-crimes-court-is.php
171
(accessed 11 August 2010).
Arts 17 & 19 Rome Statute.