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Preventing Human Rights Violations by Law Enforcement Agencies During Counterterrorism Operations in Kenya and Uganda

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Preventing Human Rights Violations by Law Enforcement Agencies During Counterterrorism Operations in Kenya and Uganda b PREVENTING HUMAN RIGHTS VIOLATIONS BY LAW ENFORCEMENT AGENCIES DURING COUNTERTERRORISM OPERATIONS IN KENYA AND UGANDA By EMMANUEL OKURUT Student number: 12258122 Thesis submitted partial in fulfilment of the requirement for the degree of Doctor of Laws in the Faculty of Law at the University of Pretoria Supervisor Prof Magnus Killander November 2017 DECLARATION I, Emmanuel Okurut, hereby declare that the work contained in this thesis is my own original work and has not previously in its entirety or in part been submitted at any other university for a degree. i ACKNOWLEDGEMENTS I would like to dedicate this thesis to my parents, Prof Francis N Okurut & Mrs Leah M Okurut and my family for the support and encouragement they have given me throughout this long journey. I am eternally grateful to my parents who have gladly supported me financially and emotionally throughout my academic pursuits. You have always taught me to aspire for excellence and I know I have made you proud with this monumental achievement. To my sisters Esther Tino Ochieng, Apolot Joy Christine Musiime, Julie Adeke, Hope Chodry, Grace Acam and Rachel Kedi, you are such a blessing. It has certainly not been a smooth ride and many times I felt that I could not take it anymore. However, your kind words and advice encouraged me to keep working against all odds. I would also like to acknowledge my wife, Lorraine Mulalo Makhado for the support she has given me. You have always encouraged me to keep pursuing my dreams and you keep pushing me to be better in everything I do. I appreciate you in my life and I would not have it any other way. I also acknowledge the input of friends and colleagues - you made a big difference. God bless you all. Last but not least, I want to specially thank my supervisor Prof Magnus Killander for accepting the task of supervising this thesis. Your guidance and valuable input cannot be overly stressed. ii ABSTRACT The problem of terrorism has escalated over the past two decades and has continuously posed a challenge to global peace and security. While the major terrorist organizations like ISIS and al- Qaeda have devastated the Middle East, Europe and the United States, the East African region has not been an exception to the influence of radical Islamist terrorist groups. Kenya and Uganda have particularly been targeted by al-Shabaab, a Somali based Islamist terrorist group that has sworn allegiance to al-Qaeda. These attacks have mainly been in response to the deployment of military troops under the AU’s peace-keeping mission in Somalia (AMISOM. In addition to the threat by al-Shabaab, the two countries have also battled internal home-grown terrorist organizations that have threatened the peace and security of their respective homelands. In response to the threat of terrorism and its impact on the various institutions, the international community adopted the United Nations Global Counter-Terrorism Strategy to fight against terrorism in order to preserve peace and security. These counterterrorism measures also contain safeguards that are designed to ensure that states do not unjustifiably infringe on human rights. The African region under the African Union has also adopted counterterrorism measures under the OAU Terrorism Convention and numerous other instruments which tackle the problem of terrorism in great detail. Kenya and Uganda have been vulnerable to terrorist attacks and have adopted some interventions including the adoption of counterterrorism legislation and reinforcing law enforcement to be able to respond better to the threat of terrorism. Kenya enacted its Prevention of Terrorism Act in 2012 while Uganda’s Anti-Terrorism Act was passed in 2002. There are a number of legitimate counterterrorism measures within these pieces of legislation for example the criminalization of terrorism and terrorist organizations. However, there is a danger that some of these interventions may unlawfully erode fundamental human rights and freedoms. This is particularly true for their counterterrorism police and security agencies which usually conduct their operations in secret with no clear channels of accountability. This poses a challenge for any effective form of review because most of such operations are protected as state secrets. iii The thesis examined the extent to which counterterrorism legislation and policy affects the enjoyment of human rights. The analysis showed that there were some significant deficiencies in the counterterrorism legislation of Kenya and Uganda. The most prominent challenges were the lack of supervision and review of exercise of discretion by law enforcement during counterterrorism operations, and weak accountability frameworks. In this regard, the thesis recommends the immediate codification of the Joint Anti-Terrorism Taskforce of Uganda; the amendment of the Uganda Police Act to take into account proportionality in the use of force by law enforcement; the amendment of the Anti-Terrorism Act of Uganda to remove the unfettered discretion of a security officer; and the inclusion of the right to silence and the right to apply for release from unlawful custody in Uganda’s Constitution. A closer look at the practice of counterterrorism agencies also reveals a pattern of gross violation of human rights and disregard for the rule of law. Such unlawful conduct also violates the principles of democracy that require public officials to be accountable for actions taken in their official capacity. In an effective democracy, public officials are appointed by the authority of the public and they serve the collective interests of the society at large. In addition, there are certain law enforcement accountability mechanisms that are established in order to ensure the efficiency, professionalism and discipline of the police forces. While most of these accountability mechanisms are carefully thought out and drafted, they are not always implemented in practice. Nevertheless, they constitute a potential avenue for the prevention of abuse of human rights during counterterrorism operations. In order to improve the overall effectiveness and accountability of the police forces, the thesis recommends freeing the police from undue influence of the executive branch of government; exercising accountability before, during and after counterterrorism assignments; education of law enforcement officials in the protection and promotion of human rights; and improving the living and working conditions of members of law enforcement in order to prevent unprofessionalism. iv LIST OF ABBREVIATIONS Journal abbreviations AHRLJ: African Human Rights Law Journal AJIL: American Journal of International Law Am. U. Int’l L. Rev.: American University International Law Review ASIL: The American Society of International Law AUILR: American University International Law Review BMC Psychiatry: BioMed Central Psychiatry Buffalo HRLR: Buffalo Human Rights Law Review Cardozo J. Int'l & Comp. L.: Cardozo Journal of International and Comparative Law Chi. J. Int'l L.: Chicago Journal of International Law CICJ: Current Issues in Criminal Justice Colum. L. Rev. Columbia Law Review Deakin Law Review: Deakin Law Review Denv. J. Int'l L. & Pol'y: Denver Journal of International Law and Policy Direito GV L. Rev.: Direito Getulio Vargas Law Review EJIL: European Journal of International Law Eur J Int Law: European Journal of International Law Eur. J.L. Reform: European Journal of Law Reform Ga. L. Rev.: Georgia Law Review J. Legal Educ.: Journal of Legal Education N.C.J. Int’l L. & Com. Reg.: North Carolina Journal of International Law and Commercial Regulation NWC: Naval War College Review Nw. J. Int’l L. & Bus.: North Western Journal of International Law & Business Or. L. Rev. Oregon Law Review v SAIS Rev. Int’l Aff.: School of Advanced International Studies Review of International Affairs. Tul. J. Int'l & Comp. L.: Tulane Journal of International and Comparative Law Tul. L. Rev. Tulane Law Review Vand. J. Transnat’l L.: Vanderbilt Journal of Transnational Law Yrbk Int’l Humanitarian L: Yearbook of International Humanitarian Law Other abbreviations ACHPR: African Charter on Human and Peoples’ Rights ADF: Allied Democratic Forces AMISOM: African Union Mission in Somalia ATPU: Anti-Terrorism Police Unit (Kenya) AU: African Union AUMF Res: Authorization for Use of Military Force Resolution BBC: British Broadcasting Corporation CAR: Central African Republic CBP: Community Based Policing CIA: Central Intelligence Agency CNN: Cable News Network CSO: Civil Society Organization DRC: Democratic Republic of Congo EAC: East African Community EAPCCO: East African Police Chiefs Cooperation Organization FATF: Financial Action Task Force HRC: Human Rights Council ICCPR: International Covenant on Civil and Political Rights ICED: International Convention for the Protection of All Persons from Enforced Disappearance ICESCR: International Covenant on Economic, Social and Cultural Rights vi ICJ: International Court of Justice ICTY: International Criminal Tribunal for the former Yugoslavia IGAD: Intergovernmental Authority on Development IS/ISIS/ISIL: Islamic State of Iraq and the Levant ISO: Internal Security Organization JATT: Joint Anti-Terrorism Taskforce (Uganda) JSOC: Joint Special Operations Command (United States of America) LRA: Lord’s Resistance Army OAU: Organization of African Unity OHCHR: The Office of the High Commissioner for Human Rights NGO: Non-Governmental Organization PCT: The Public Committee against Torture in Israel PLO: Palestine Liberation Organization S.J. Res:
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