By The Independent’s Investigative Team
General’s fight linked to ICC
In mid-April, the International Criminal Court (ICC) at The Hague in the Netherlands received a dossier on alleged human rights violations by the Uganda government generally, and President Yoweri Museveni and the Inspector General of Police, Gen. Kale Kayihura, specifically. The dossier was said to be from ‘credible sources’ within Uganda because of its amount of detail.
It reportedly included information that, if correct, could only be known by someone who was involved in the behind-the-scenes details of the decisions that informed the specific actions that led to the alleged human rights abuses.
This was not the first time a case against Museveni and Kayihura was being taken to the ICC and, although the dossier was not officially shared with them, they got it from their sources in The Hague.
The first question that Museveni and Kayihura asked as soon as they saw the dossier was: who could be behind it?
The dossier had been sent to the ICC by a team of lawyers based in London, calling themselves the “ICC mercenaries” or “international legal guns for hire.”
These are individuals and lawyers who have worked with the ICC before on several cases and investigations. They offer expertise to the ICC and to individuals, groups or even governments on how to petition the ICC or deal with other ICC-related issues. Their job is to help put cases into a believable dossier, complete with legal justification and evidence to warrant the ICC’s intervention.
The first hint about the source of the dossier was that its authors claimed to have “a credible witness from the top echelons of Uganda’s intelligence establishment”.
The top intelligence officer, the dossier claimed, could produce evidence that Museveni and Kayihura personally and individually gave instructions to open fire and kill protesters in the September 2009 Buganda riots. Kayihura says, officially 27 people were killed in the riots that erupted after police blocked the Buganda king, Ronald Muwenda Mutebi from travelling to Kayunga.
Besigye, Lukwago involved
Sources in Ugandan intelligence told The Independent that Museveni and Kayihura knew that in 2011, Besigye and Lukwago had approached the ICC either directly or by proxy.
They had raised three issues; first that during the Kayunga riots in 2009, there was “systematic and targeted execution” of Baganda by the police.
Second, that under Museveni and through Kayihura, the government was running assassination squads. They alleged that elements of the now disbanded Rapid Response Unit (RRU) had been transformed into an assassination squad under Kayihura.
Finally, that because of the personal and direct involvement of the President and the IGP, it was not possible for victims to get justice within Uganda’s court system – hence the decision to seek the intervention of the ICC.
The ICC responded that since Uganda is a member of the court and has a fairly independent judiciary – the evidence being the many high profile cases the state has lost – it could handle the cases of human rights abuses alleged by Besigye and Lukwago. The ICC also said the evidence adduced did not meet the minimum threshold for ICC intervention with its own investigation.
The ICC explained the three circumstances under which it gets involved in a case; first, that the court intervenes when matters are referred to it by the United Nations Security Council; second, when a member country voluntarily refers the matter to it as Uganda did in the case of the Lord’s Resistance Army of Joseph Kony, and three, on the ICC’s own volition especially when there are sufficient grounds to directly open investigation. This is when the concerned country proves incapable or unwilling to handle gross abuses and human rights violations. The matter appeared to have been ended.
However, on March 26, Lukwago and Besigye filed a case at the Nabweru Chief Magistrate’s Court alleging that Kayihura, Kampala Metropolitan Police Commander Andrew Felix Kaweesi, and four other police officers had organised a mob to beat up leaders of the opposition protest group, For God and My Country (4GC).
On the face of it, it seemed Lukwago was pursuing the problem in local courts. However, intelligence sources say, Lukwago was trying to find a way to create legal conditions for the intervention of the ICC.
It all started when Lukwago, Besigye, and other opposition leaders travelled to Kawempe, a division of Kampala City. The grounds for the visit were that Lukwago, as Lord Mayor, was officially visiting projects by Kampala Capital City Authority (KCCA). Lukwago had written to and gotten clearance from the police.
However, before they could reach the site of the projects, a crowd confronted them. Describing themselves as local businesspersons and vendors, they said they did not want chaos in their area and that each time Besigye and Lukwago visit a place, they attract large numbers of un-employed youths, idlers and hooligans who cause riots, fights, chaos, and disruption of business activities.
A scuffle ensued and Besigye and Lukwago fled the mob and were rescued by police. The function did not take place.
Lukwago later called a press conference and said the people who attacked them were not businessmen but hooligans hired by police to disrupt their rally and also beat them up.
On their part, the police claimed Lukwago and Besigye were not visiting any projects, but were using the visit as a pretext to hold an unauthorised political gathering or rally, instigate a riot, and cause the police to overreact in order to get media coverage.
Lukwago took the matter to Nabweru Court and used a private prosecutor to ask the chief magistrate to compel Kayihura, Kaweesi and other police officers to come to court to plead on criminal charges of assault. Police suspect that Lukwago’s aim was really not to prosecute the officers but to create a situation to show the ICC that Ugandan courts cannot handle a criminal case against Kayihura.
Whatever the claims and counter claims by either side, the chief magistrate instructed the Criminal Intelligence and Investigations Department (CIID) officers at Kawempe police station to investigate the matter and report to court. CIID investigated and said the case had no merit since one cannot commit assault by proxy. Given that neither Kayihura nor Kawesi were present in Kawempe on that day, they could not be remotely accused of committing assault.
The court wrote back to Lukwago and Besigye informing them of the matter. At this point, Lukwago called a press conference and announced that he was taking the matter to ICC.
New dossier sent
At about this time, the ‘ICC legal guns for hire’ in London sent a dossier to The Hague. The new dossier alleged that over the last three years, they had received numerous petitions and complaints of alleged government complicity in crimes against humanity and gross abuses of human rights.
They alleged that these complaints and petitions came from local political parties, civil society organisations and some individuals within Uganda. They also attached reports by international human rights organisations like Amnesty International and Human Rights Watch.
They attached international human rights groups’ reports that were critical of the government and said the State had failed to investigate some of the human rights abuses.
Some of the attached reports claim that the government of Uganda routinely scoffs at human rights reports, especially where security agencies are involved in the killing of civilians. Sometimes, the reports claimed, the government does a cover up of the abuses.
The London-based lawyers recommended that Museveni and Kayihura be held personally accountable and liable for the violations by security agencies. They named cases where it can be demonstrated that the President and the IGP personally issued instructions to fire live ammunition at crowds or were made aware of the violations and killings and did nothing to hold the perpetrators accountable for their actions.
Once again, the ICC replied that the cases did not meet the minimum threshold for its intervention. It advised them that the process of instituting a formal investigation is long and laborious and that the government of Uganda as a member of the court has to be involved and consulted at all stages.
The ICC told them it does not carry out “sneaky” investigations behind the backs of member States. Lukwago’s and Besigye’s case against Museveni and Kayihura, once again, seemed dead.
It is at this point that the lawyers in London, who were working with Besigye and Lukwago to bring the president and the IGP to trial at the ICC, got a major boost.
In mid-April, the London-based lawyers submitted what they described as “the most credible case”, backed with affidavits and listing in detail specific cases of human rights abuses. Not only that, the new dossier provided nitty-gritty details of alleged behind-the-scenes decisions and instructions that led to alleged human rights violations.
According to documents seen by The Independent, the new dossier was seen to be “credible” because its main source was “an insider” who knew exactly what was happening.
The attached affidavits to the dossier now provided the same human rights violations as Lukwago, Besigye and their lawyers in London had done. This time, however, they provided more detail and gave specific meetings, places and dates when decisions were taken and instructions given that allegedly led to gross human rights abuses.
The dossier provided what it said was evidence that Museveni and Kayihura were personally involved and gave specific incidences when they had personally given instructions to open fire at demonstrators.
The dossier said Museveni had personally issued instructions for the April 28, 2011 attack on Besigye at the Mulago roundabout in Kampala. In that attack, Besigye was blocked by police and, when he resisted, he was pepper-sprayed, dragged out of his car, bundled into a police truck, and driven off under the glare of local and international media cameras.
Hundreds were injured and an unknown number of people reportedly died in riots that broke out across the country and police opened fire on demonstrators who feared that Besigye had been killed.
The dossier claimed that the government, through Kayihura, has systematically been eliminating ringleaders of opposition demonstrations through Assistant Inspector of Police Nixon Ayegasirwe.Tinyefuza named Ayegasirwe in his letter, which was published in the media recently.
The officer allegedly runs an assassination squad only answerable to Kayihura and that the key ringleaders of the demonstrations are sometimes framed as robbers and shot in cold-blood in stage-managed attempted robberies.
The dossier also alleged that Kayihura is involved in trading with rebels based in the eastern Democratic Republic of Congo, the M23, and helps to market their gem stones, as well as providing them material and logistical support. The dossier alleged that he does this for both financial and material gain but also for emotional reasons given his Rwandese ancestry.
The ICC responded in early May to this dossier by saying that it also is, like the previous two dossiers before it, speculative.
However, this time the lawyers in London wrote back to the ICC saying they have a very senior Ugandan security and military officer ready to come forward and prove each and every allegation contained in the dossier.
The officer, the London-based lawyers informed the ICC, was willing to come forward on condition that the Court first grants him immunity from prosecution since he was also personally involved in the decisions from whence instructions leading to human rights abuses were given.
In late May, the lawyers named the officer to be Gen. David Sejusa, aka Tinyefuza, then-coordinator of Intelligence Services. The lawyers said the general was in London and available any time.
Gen. Sejusa who appears to have fled into exile in the UK, is said to have travelled there just days before a letter he reportedly wrote on April 29 appeared in the press.
The Daily Monitor on May 7 published a story under the headline, “Probe assassination claims, says Tinyefuza”. In it, Gen. Sejusa aka Tinyefuza reportedly had written to the Director General of the Internal Security Organisation asking him to investigate allegations that President Museveni had plans to assassinate army officers and politicians opposed to his son, Brig. Muhoozi Kainerugaba becoming his successor. He named Prime Minister Amama Mbabazi and then-Chief of Defence Forces Aronda Nyakairima among those targetted.
The New Vision newspaper, which picked up the story, said Gen. Sejusa travelled to London on April 30 but the UK government, according to The Monitor, has refused to say whether or not the general is in the UK and is seeking asylum.
Was Gen. Sejusa working with Lukwago and Besigye?
The ICC reportedly picked Gen. Sejusa’s name and went to work. They developed a profile of the general from his days in the bush through his command of Operation North in 1990/91 during which many civilians were killed and senior political leaders arrested and tortured. They also profiled his role as coordinator of intelligence services.
Once a full profile was finished, the ICC, internal sources say, reached a conclusion that it could neither work with Gen. Sejusa nor promise him any immunity. In early June, the ICC recommended that the case be closed. It claimed that the credibility of the source was at stake and would make its case more difficult to prosecute.
Because Gen. Sejusa was an active participant in his own allegations of human rights abuses, including more serious abuses like the famous tortures at Bur Coro in Gulu District when he was in charge of Operation North against rebels Alice Lakwena and Joseph Kony of the Lord’s Resistance Movement, the ICC legal team possibly realised it would be in a difficult position with Gen. Sejusa as a witness.
Legal experts in Kampala told The Independent that defense lawyers could tear Gen. Sejusa’s evidence to pieces on account of his lack of credibility and his active role in the alleged atrocities.
Lawyers frequently do not address how credible a client or witness appears to others; they focus on the cause. In some cases, however according to legal experts, the cause may be just but the client or witness attitude or method of expressing themselves may be lacking and their antecedents questionable. This is what makes the assessment of the credibility of a witness essential to a case.
Although there are no formal rules that bind a court’s assessment of credibility in those circumstances, it is never enough that someone should assert something as a fact: a competent and properly constituted court like the ICC must assess the credibility of the speaker and of the statement that is made.
It thus became difficult for the ICC to grant him immunity on the basis that he had turned “complainant.”
It is not yet clear how the government will react to this new development and where it will leave Tinyefuza in light of the government’s intent to have him apprehended to face various charges in the General Court Martial.