NATIONAL PROSECUTION OF INTERNATIONAL CRIMES IN AFRICA Law and Practice from Kenya, Rwanda and Uganda Gift Joseph Kweka PhD (Law) Thesis University of Dar es Salaam October, 2017 NATIONAL PROSECUTION OF INTERNATIONAL CRIMES IN AFRICA Law and Practice from Kenya, Rwanda and Uganda By Gift Joseph Kweka A Thesis Submitted in Fulfilment of the Requirements for the Degree of Doctor of Philosophy (Law) of the University of Dar es Salaam University of Dar es Salaam October, 2017 i CERTIFICATION The undersigned certifies that he has read and hereby recommends for acceptance and examination by the University of Dar es Salaam a thesis titled: ―National Prosecution of International Crimes In Africa: Law and Practice from Kenya, Rwanda and Uganda”, in fulfilment of the requirements for the Degree of Doctor of Philosophy (PhD) of the University of Dar es Salaam. ........................................................ Dr. Benedict T. Mapunda (Supervisor) Date: ........................................... ii DECLARATION AND COPYRIGHT I, Gift Joseph Kweka, declare that this thesis is my own original work and that it has not been presented and will not be presented to any other university for a similar or any other degree award. Signature: ............................................... This thesis is a copyright material protected under the Berne Convention, the Copyright and Neighbouring Rights Act of 1999 and other international and national enactments, in that behalf, on intellectual property. It may not be reproduced by any means, in full or in part, except for short extracts in fair dealings, for research or private study, critical scholarly review or discourse with an acknowledgment, without the written permission of the Directorate of Postgraduate Studies, on behalf of both the author and the University of Dar es Salaam. iii ACKNOWLEDGEMENT I thank the Almighty God for helping me through the power of the Holy Spirit to write this work and produce what I have produced. Praise be to His holy name. Special thanks to my supervisor Dr. Benedict T. Mapunda who mentored me at every step along the way. It is with a sincere heart that I admit without him that this work would not be what it is now. I started with a very underdeveloped proposal. But now, with my head held high I hold a document that is well written. To my counsellor, mentor and advisor Justice Lovemore Green Munlo retired chief Justice of Malawi and the former Registrar of the Special Court for Sierra Leone. Thank you for your tireless and immeasurable support. You have been my right hand throughout my academic career and as I journeyed through the last leg of my academic passage, you have made it possible. I must say that you saw a ―tree in my nut;‖ thank you for believing in me. To my Mom, special thanks for your support, for keeping me in your daily prayers, my late dad would have been the proudest father in the world. However, where you are now, I know you are smiling down from heaven. My son Jason Ekari and my siblings Joy, Sweet (and their families), Innocent and Praise who provided support throughout the period, I am extremely grateful. Also, I would like to thank my friends and the people working in different institutions where I collected data who never tired to support me in the process. I may not thank each one by name but know that I am very thankful. Thank you all. iv DEDICATION This thesis is dedicated to my late father Mr. Joseph Julian Kweka (1954-2014). v ABBREVIATIONS AND ACRONYMS ACDEG African Charter on Democracy, Election and Good Governance ACHPRs African Court of Human and Peoples‘ Rights ACJHRs African Court of Justice and Human Rights ADF Allied Democratic Forces AU African Union AUC African Union Commission CAP Chapter CAR Central African Republic CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CID Criminal Investigation Department CIPEV Commission of Inquiry into the Post-Election Violence CRIM. Criminal DP Democratic Party DPP Director of Public Prosecution DRC Democratic Republic of Congo EAC East African Community EACJ East African Court of Justice ECOWAS Economic Community for West African States EU European Union FORD Forum for the Restoration of Democracy ICC International Criminal Court vi ICCPR International Covenant on Civil and Political Rights ICD International Crimes Division ICGLR International Conference on the Great Lakes Region ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law ILC International Law Commission IMT International Military Tribunal IMTFE International Military Tribunal for the Far East IOCD International and Organized Crimes Division JSC Judicial Service Commission KADU Kenya African Democratic Union KANU Kenya African National Union KNCHR Kenya National Commission on Human Rights LDP Liberal Democratic Party LRA Lord's Resistance Army NAC National Alliance for Change NAK National Alliance (Party) of Kenya NARC National Rainbow Coalition NDP National Development Party NGO Non-Governmental Organization NPK National Party of Kenya NRA National Resistance Army vii NURC National Unity and Reconciliation Commission Misc. Miscellaneous OAS Organisation of American States OAU Organization of African Union ODM Orange Democratic Movement OHCHR Office of the High Commissioner for Human Rights PNU Party of National Unity R.E Revised Edition RECs Regional Economic Communities RES Resolution RPF Rwandese Patriotic Front SADC Southern African Development Community SADCC Southern African Development Co-ordination Conference SCSL Special Court for Sierra Leone TJRC Truth, Justice and Reconciliation Commission UDHR Universal Declaration of Human Rights UHRC Uganda Human Rights Commission UN United Nations UNGA United Nations General Assembly UNSC United Nations Security Council UPC Uganda People‘s Congress UPDM Uganda People's Democratic Movement WPVA Witnesses and Victims Protection and Assistance Unit WWI World War I WWII World War II viii ABSTRACT This thesis investigates the national prosecution of international crimes in Africa with specific focus on Rwanda, Uganda and Kenya. The study has traced the prosecution of international crimes in Africa from the period international criminal justice was incepted to date. The study engaged doctrinal and empirical legal research in collection of data. The thesis gives an account of African position in different eras of the development of international criminal justice. On the basis of this account, it has been concluded that, historical factors have played part in the passiveness of African countries towards the prosecution of international crimes in domestic courts. The thesis further provides an analysis of the existing legislative framework for the prosecution of international crimes at regional, sub-regional and country level in Africa. This analysis provides the substantive law that exists in the area of international criminal justice as it stands today. The laws have improved over the years and it is concluded that there is a reasonable legal framework addressing core international crimes in selected countries. Being anchored in two parameters namely legislative framework and practice; the study also provides the practice of Africa in prosecuting international crimes at regional, sub regional and country level. There is more emphasis on the practice of selected countries which leads to the conclusion that, domestic courts could offer viable venue for the prosecution of international crimes where identified challenges are addressed. With this flow, the study gives a conclusion on the legislative framework and practice in national prosecution of international crimes in Africa with particular focus on Kenya, Rwanda and Uganda. ix TABLE OF CONTENTS Certification ................................................................................................................................ i Declaration and Copyright .........................................................................................................ii Acknowledgement ................................................................................................................... iii Dedication ................................................................................................................................. iv Abbreviations and Acronyms .................................................................................................... v Abstract .................................................................................................................................. viii Table of Contents ...................................................................................................................... ix List of Cases ..........................................................................................................................xvii List of Treaties and other International Law Instruments ..................................................... xxvi Table of National Constitutions and Legislation .............................................................. xxviiii CHAPTER ONE: INTRODUCTION .................................................................................... 1 1.1 General Introduction ..................................................................................................... 1 1.2 Background to the Study ..............................................................................................