Counterterrorism Law and Practice in the East African Community [1 ed.] 9789004389892, 9789004389885

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Counterterrorism Law and Practice in the East African Community

Counterterrorism Law and Practice in the East African Community By

Christopher E. Bailey

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Bailey, Christopher E., author. Title: Counterterrorism law and practice in the East African Community /  by Christopher E. Bailey. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Based on author’s  thesis (Doctoral — George Washington University Law School, 2018). |  Includes bibliographical references and index. Identifiers: LCCN 2018061266 (print) | LCCN 2018061732 (ebook) |  ISBN 9789004389892 (ebook) | ISBN 9789004389885 (hardback : alk. paper) Subjects: LCSH: Terrorism—Prevention—Law and legislation—Africa, Eastern. Classification: LCC KQC982.T47 (ebook) | LCC KQC982.T47 .B35 2019 (print) |  DDC 344.67605/3257—dc23 LC record available at https://lccn.loc.gov/2018061266

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-38988-5 (hardback) isbn 978-90-04-38989-2 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Disclaimer vii Abstract viiI List of Tables ix List of Abbreviations x Table of Authorities xii 1 Counterterrorism in the East African Community 1 1.1 Introduction: Partners in a Shared Fight 1 1.2 The East African Community 6 1.3 The Need for a Regional Legal Framework for Counterterrorism 16 1.4 Book Overview 17 1.5 Key Findings 22 2 A Normative Framework for Counterterrorism Law in the EAC 26 2.1 Introduction: a Counterterrorism Framework for the EAC 26 2.2 International Human Rights Law 35 2.3 African Human Rights Law 46 2.4 The Transition to the Use of Force and UN Charter Law 57 2.5 International Humanitarian Law 62 2.6 Concluding Comments 74 3 Counterterrorism Law and Practice in Kenya 82 3.1 Introduction: Kenyan Law and Practice 82 3.2 The Administration of Justice: Courts, Statutes and Issues 86 3.3 The Terrorism Threat to Kenya: Domestic and Foreign Actors 98 3.4 Counterterrorism Assessment and Recommendations 133 4 Counterterrorism Law and Practice in Uganda 139 4.1 Introduction: Ugandan Law and Practice 139 4.2 The Administration of Justice: Courts, Statutes and Issues 141 4.3 The Terrorism Threat to Uganda: Domestic and Foreign Actors 163 4.4 Counterterrorism Assessment and Recommendations 179 5 Counterterrorism Law and Practice in Burundi and Rwanda 182 5.1 Introduction: Ethnic Conflict between the Hutu and the Tutsi 182 5.2 Burundian Counterterrorism Law and Practice 205 5.3 Rwandan Counterterrorism Law and Practice 214 5.4 Counterterrorism Assessment and Recommendations 221

vi

Contents

6 Counterterrorism Law and Practice in Tanzania 227 6.1 Introduction: Tanzanian Law and Practice 227 6.2 The Administration of Justice: Courts, Statutes and Issues 236 6.3 The Terrorism Threat to Tanzania: Domestic and Foreign Actors 242 6.4 Counterterrorism Assessment and Recommendations 247 7 Towards Community Integration 252 7.1 Introduction: the Fundamental Principle of Increased Political Legitimacy 252 7.2 Key Findings and Recommendations 253 7.3 Recommended Changes in EAC National Laws 260 7.4 The EAC: the Need for a Mutual Legal Assistance Treaty (MLAT) 265 7.5 Counterterrorism Assessment and Recommendations 273 Bibliography 275 General Sources 275 Burundi Sources 282 Kenya Sources 285 Rwanda Sources 293 South Sudan Sources 296 Tanzania Sources 297 Uganda Sources 301 Other International Sources 309 Index 315

Disclaimer Dr. Christopher E. Bailey is an Associate Professor at the National Intelligence University in Bethesda, Maryland specializing in international and comparative law, national security law, and professional ethics. He is licensed to practice law in California and the District of Columbia, and is a member of the American Society of International Law. He has an LLM degree in National Security & U.S. Foreign Relations Law and an SJD degree in International and Comparative Law from the George Washington University School of Law. Some sections of this book, particularly in the Uganda chapter, have been previously published at: The Quest for Justice: Joseph Kony & the Lord’s Resistance Army, 40 Fordham Int’l L. J. 247 (2017). Dr. Bailey expresses his profound appreciation to all who have contributed to this work and any errors of fact or omission are his and his alone. All statements of fact, analysis, or opinion are the author’s and do not reflect the official policy or position of the National Intelligence University, the Department of Defense or any of its components, or the U.S. government.

Abstract This book conducts an in-depth examination of the existing counter-terrorism laws and practices in the six-member East African Community (EAC), as it applies to a range of law enforcement activities under a range of international legal obligations. This book provides a comparative examination of existing law at the national level for South Sudan, Kenya, Uganda, Burundi, Rwanda and Tanzania, to include compliance with obligations under international human rights and international humanitarian law, and offers a range of reform recommendations. This book addresses two primary, related research questions: To what extent do the current national counter-terrorism laws and practices of the EAC Partner States comply with existing international human rights safeguards? What laws or practices can the EAC adopt to achieve better compliance with human rights safeguards in both civilian and military counter-terrorism operations? Initially, this book provides an extended examination of international legal norms, namely under international human rights law, the Charter of the United Nations, international humanitarian law, and regional treaty law, as it applies to the counter-terrorism obligations of the EAC Partner States. This book examines the administration of justice in each Partner State, to include constitutional, statutory, and—where available—decisional law to identify the principal means of addressing that nation’s counter-terrorism threat. This book concludes that updated national laws, with enhanced law enforcement operations and national criminal prosecutions, can facilitate greater regional political and economic integration—by eliminating some of the underlying human rights problems that can bring about unwanted international scrutiny. This book recommends specific constitutional and statutory changes in each country, as well as a regional mutual legal assistance treaty and increased support to the East African Court of Justice (EACJ).

Tables 1 2 3 4-A 4-B 5-A 5-B 6 7-A 7-B

Regional parties to CT/human rights treaties/conventions (by effective date of accession, ratification or succession) 75 Regional parties to CT/human rights treaties/conventions (by effective date of accession, ratification or succession) 76 Regional parties to CT/human rights treaties/conventions (by effective date of accession, ratification or succession) 76 Compliance with UNSCR 1373, municipal legislation 77 Compliance with UNSCR 2178 (foreign terrorist fighters), municipal legislation 78 Anti-corruption and money laundering conventions 78 Anti-corruption and money laundering memberships 79 Major regional non-international armed conflicts 80 East African participation in regional PKO 80 East African participation in regional PKO 81

Abbreviations ADF AfCHPR ALIR AMISOM AMYC ATPU CCM CEWARN CNDD-FDD CNIDH CORD CUF DPP EACJ EASF ECOWAS ESO FAR FATF FBI FDC FDLR FIB FNL GCTF ICC ICD ICJ ICRC ICTR ICTY IGAD IGG IOM IPI IPK

Allied Democratic Forces African Court on Human and Peoples’ Rights Army for the Liberation of Rwanda African Union (AU) Mission in Somalia Ansar Muslim Youth Centre Anti-Terrorism Police Unit (Kenya) Chama Cha Mapinduzi (Tanzania) Conflict Early Warning and Response Mechanism National Council for the Defence of Democracy-Forces for the Defence of Democracy (Burundi) Independent National Commission on Human Rights (Burundi) Coalition for Reform and Democracy (Kenya) Civic United Front (Zanzibar) Director of Public Prosecutions East African Court of Justice East Africa Standby Force Economic Community of West African States External Security Organisation (Uganda) Forces Armées Rwandaises Financial Action Task Force Federal Bureau of Investigation (United States) Forum for Democratic Change (Uganda) Democratic Forces for the Liberation of Rwanda UN Force Intervention Brigade National Forces of Liberation (Burundi) Global Counterterrorism Forum International Criminal Court International Crimes Division (High Court of Uganda) International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Intergovernmental Authority on Development Inspector General of Government (Uganda) International Organization for Migration International Peace Institute Islamic Party of Kenya

Abbreviations IPOA ISO JATT KANU KDF KNCHR KNFP KPR LRA MINUSCA MINUSMA MLAT NCHR NCRC NCTC NCTC NFP NRM ODM PFLP PNU RECSA RDF RPF RTLM SALW SLAA SLDF SPLA TANU UMFF UNAMID UNDP UNMISS UNODC UNSCR UPDF

xi Independent Policing Oversight Authority (Kenya) Internal Security Organisation (Uganda) Joint Anti-Terrorism Task Force (Uganda) Kenya African National Union Kenya Defence Forces Kenya National Commission of Human Rights Kenya National Focal Point Kenya Police Reserve Lord’s Resistance Army UN Multidimensional Integrated Stabilization Mission in the Central African Republic UN Multidimensional Integrated Stabilization Mission in Mali Mutual Legal Assistance Treaty National Commission for Human Rights (Rwanda) National Constitutional Review Commission (South Sudan) National Counterterrorism Center (Kenya) National Counterterrorism Center (Tanzania) National Focal Point (Uganda) National Resistance Movement (Uganda) Orange Democratic Movement (Kenya) Popular Front for the Liberation of Palestine Party of National Unity (Kenya) Regional Centre on Small Arms in the Great Lakes Region, the Horn of Africa and Bordering States Rwandan Defense Forces Rwandan Patriotic Front Radio Television Libre des Mille Collines (Rwanda) Small Arms and Light Weapons Security Laws (Amendment) Act of 2014 (Kenya) Sabaot Land Defense Force Sudanese People’s Liberation Army Tanganyika National African Union Uganda Muslim Freedom Fighters UN-African Union Mission in Darfur UN Development Programme UN Mission in South Sudan UN Office on Drugs and Crime UN Security Council Resolution Uganda Peoples’ Defence Forces

Table of Authorities 1

International Treaties

The African Charter on Human and Peoples’ Rights (the Banjul) Charter, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. UN Treaty Collection, URL: https:// treaties.un.org/ (accessed Nov. 2, 2017) 7, 41, 46, 47, 48, 215, 216, 250, 271 The African Commission on Human and Peoples’ Rights. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, adopted on June 10, 1998, entered into force Jan. 25, 2004, http:// www.achpr.org/instruments/ (accessed June 21, 2017) 49 The African Union. “Protocol Relating to the Establishment of the Peace and Security Council of the African Union,” July 9, 2002, available at http://www .au2002.gov 14 The African Union. African Union Convention on Preventing and Combating Corruption 30, 79 The African Union. Dakar Declaration against Terrorism (last updated Nov. 23, 2015), http:// www.peaceau.org/en/page/64-counter-terrorism-ct (accessed June 12, 2017) 37 The African Union. The OAU Convention on the Prevention and Combating of Terrorism (the Algiers Convention), adopted by the 35th Ordinary Session of the Assembly of Heads of State and Government in Algiers, Algeria, in July 1999, Decision AHG/Dec. 132 (XXXV) and entered into force on Dec. 6, 2002 37, 51, 52, 53 The African Union. The 2004 Protocol to the Algiers Convention (not entered into force). “OAO/AU Treaties, Conventions, Protocols & Charters,” URL, http://au.int/en/treaties (accessed Nov. 1, 2015) 37 The Constitutive Act of the African Union, UN Treaty Col­ lection, URL: https://treaties.un.org/ (accessed Sept. 12, 2015) 1, 13, 14, 38 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S 85 (entered into force June 26, 1987) 36, 39, 58, 108, 151, 184, 218, 225, 249 Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979 (entered into force Sept. 3, 1981), UN Treaty Collection, URL: http://legal.un.org/avl/ha/cppcg/cppcg.html (accessed Apr. 12, 2018) 36

Table of Authorities

xiii

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948 (entered into force Jan. 12, 1951) UN Treaty Collection, URL: http://legal.un.org/avl/ha/cppcg/cppcg.html (accessed Sept. 12, 2017) 145, 184, 186 Convention relating to the Status of Refugees, July 28, 1951 (entered into force Apr. 22, 1954), UN Treaty Collection, URL: http:// legal.un.org/avl/ha/cppcg/cppcg.html (accessed Apr. 12, 2018) 36, 38, 108 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (Geneva Convention I), UN Treaty Collection, URL: https://treaties .un.org/pages/UNTSOnline.aspx?id=1 2, 63 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Geneva Convention  II), UN Treaty Collection, URL: https://treaties.un.org/pages/UNTSOnline.aspx?id=1 2, 63 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III), UN Treaty Collection, URL: https://treaties.un.org/pages/UNTSOnline. aspx ?id=1 2, 63, 67, 68 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva Convention IV), UN Treaty Collection, URL: https://treaties.un.org/pages/ UNTSOnline.aspx?id=1 2, 58, 63, 124, 170 International Conference on the Great Lakes Region, Protocol on Judicial Cooperation, Dec. 1, 2006, http://www.icglr.org/index.php/en/the-pact (accessed Jan. 21, 2018) 32 International Convention against the Taking of Hostages (adopted by the UN General Assembly on Dec. 17, 1979) 35, 40 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), entered into force Jan. 4, 1969 203 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), entered into force Dec. 23, 2010 22, 25, 26, 36, 45, 76, 107, 118, 134, 184, 223, 226, 253 International Convention for the Suppression of the Financing of Terrorism (adopted by the UN General Assembly in resolution 54/109 of Dec. 9, 1999, and entered into force Apr. 10, 2002) 3, 27, 36, 44, 77 International Convention for the Suppression of Terrorist Bombings. UN Treaty Collection, URL: https://treaties.un.org/ (accessed Nov. 2, 2017) 3, 36, 43, 46, 76 The International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by

xiv

Table of Authorities

General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entered into force Mar. 23, 1976, UN Treaty Collection, URL: https://treaties.un.org/ (accessed Nov. 2, 2017) 2, 11, 16, 21, 24, 35, 39, 40, 42, 57, 58, 59, 61, 62, 64, 69, 76, 118, 155, 184, 203, 204, 209, 215, 224, 225, 250, 253, 259, 264, 267, 268, 270 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Oct. 18, 2013) (the protocol establishes an international inspection system for places of detention). UN Treaty Collection, URL: https://treaties .un.org/ (accessed Nov. 2, 2017) 36, 184 Optional Protocol to the International Covenant on Civil and Political Rights. UN Treaty Collection, URL: https://treaties .un.org/ (accessed Nov. 2, 2017) 39 The Protocol on the Establishment of the East African Com­ munity Common Market, entered into force July 2010 254 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, June 9, 1998, available at: http://www.achpr.org/ instruments/court-establishment/ (accessed June 20, 2017) 49 The Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, UN Treaty Collection, https://treaties.un.org/ pages/UNTSOnline.aspx?id=1 (accessed July 26, 2017) 66, 101, 124, 154, 155, 156, 270 The Treaty of the East African Community, signed on Nov. 30, 1999, and entered into force on July 7, 2000 1, 6, 7, 264 UN Arms Trade Treaty (ATT). UN Treaty Collection, https://treaties. un.org/Pages/showDetails.aspx?objid=08000002803628c4&clang=_en (accessed Aug. 23, 2017) 22, 25, 128, 134, 166, 184, 253 UN Congress. “The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF),” adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders, Aug. 27 to Sept. 7, 1990 2, 64 UN Convention Against Corruption (Nov. 31, 2003). UN Treaty Collection, URL: https://treaties.un.org/Pages/showDetails.aspx?objid= 0800000280055f36&clang=_en 30, 79 United Nations. Charter of the United Nations, Oct. 24, 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html (accessed Feb. 14, 2018) 9, 11, 29, 70 Vienna Convention On Consular Relations (Apr. 24, 1963). UN Treaty Collection, URL: https://treaties.un.org/pages/ViewDetails

Table of Authorities

xv

.aspx?src=TREATY&mtdsg_no=III-6&chapter=3&lang=en (accessed July 25, 2017) 118 Vienna Convention on Succession of States in Respect of Trea­ ties (Aug. 23, 1978). UN Treaty Collection, URL: https://treaties.un .org/pages/UNTSOnline.aspx?id=2&clang=en (accessed Oct. 27, 2017) 1 2

Municipal Statutes

Burundi Republic of Burundi. Act No. 1/14 of Aug. 28, 2009, Small Arms and Light Weapons 210 Republic of Burundi. Law No. 1/004 of May 8, 2003, Crimes of Genocide, Crimes against Humanity and War Crimes 212 Republic of Burundi. Law No. 1/019 of Dec. 31, 2004, Bearing Creation, Organization, Missions, Composition and Functioning of the National Defense Force 201 Republic of Burundi. Law No. 1/05 of Apr. 22, 2009, Revising the Penal Code 206, 211, 212 Republic of Burundi. The Post-Transition Interim Constitution of the Republic of Burundi. Promulgated by Law No. 1/018 of Oct. 20, 2004 and approved by vote of the Burundian people by referendum of Feb. 28, 2005 (entered into force on Mar. 18, 2005) 199 Kenya Republic of Kenya. Access to Information Act (2016) 108, 109 Republic of Kenya. Anti-Corruption And Economic Crimes Act (Revised Edition 2016) 108 Republic of Kenya. Citizenship And Immigration Act (No. 12 of 2011) 96 Republic of Kenya. Citizenship and Immigration Regulations (2012) 96 Republic of Kenya. The Constitution of Kenya (2010) 87, 108, 109 Republic of Kenya. Counter-Trafficking In Persons Act (No. 8 of 2010) 96 Republic of Kenya. Criminal Procedure Code (Revised Edition 2015)  88 Republic of Kenya. Extradition (Commonwealth Countries) Act (Revised Edition 2012) 108, 257 Republic of Kenya. Extradition (Contiguous And Foreign Coun­ tries) Act (Revised Edition 2014) 108, 257

xvi

Table of Authorities

Republic of Kenya. Explosives Act (Revised 2016) 97 Republic of Kenya. Firearms Act (Revised 2015) 98, 129 Republic of Kenya. The Geneva Conventions Act, 2012 125 Republic of Kenya. Independent Policing Oversight Authority Act (2011) 116 Republic of Kenya. The International Crimes Act, 2008 124 Republic of Kenya. The Kenya Defence Forces Act, 2012 109, 121 Republic of Kenya. Kenya National Commission on Human Rights Act, No. 14 of 2011 (Revised Edition 2012) 91 Republic of Kenya. The National Intelligence Service Act, 2012 

92

Republic of Kenya. The National Police Service Act (Revised Edition 2012) 107, 115, 116, 125, 127 Republic of Kenya. The Official Secrets Act (Revised Edition 2015)  95 Republic of Kenya. The Penal Code (Revised Edition 2012) 95, 105, 112, 126, 134 Republic of Kenya. Public Officer Ethics Act (Revised Edition 2016)  108 Republic of Kenya. The Prevention of Organised Crimes Act, No. 6 of 2010 105, 106 Republic of Kenya. The Prevention of Terrorism Act (Subsidiary Legislation), 2012 95, 117, 134 Republic of Kenya. The Prevention of Torture Act (2016) 135 Republic of Kenya. The Proceeds of Crime and Anti-Money Laundering Act 2009 (No.  9 of 2012) 117 Republic of Kenya. Registration Of Persons Act (Revised 2015) 97 Republic of Kenya. The Security Laws (Amendment) Act, 2014 90, 91, 92, 102, 138 Republic of Kenya. Witness Protection Act, 2012 129 Rwanda Republic of Rwanda. The Constitution of the Republic of Rwanda (2003), with amendments through 2015 194 Republic of Rwanda. Law Determining Missions, Organisation and Functioning of the National Commission for Human Rights, No. 19/2013 of March 25, 2003 205, 226 Republic of Rwanda. Law on the Crime of Genocide Ideology and Other Related Offences, No. 84/2013 of Sept. 11, 2013 215 Republic of Rwanda. Law Relating to the Code of Criminal Procedure, No. 30/2013 of May 24, 2013 220

Table of Authorities

xvii

Republic of Rwanda. Organic Law Instituting The Penal Code, No. 01/2012/OL of May 2, 2012, Official Gazette Special of June 14, 2012  214, 218 Republic of Rwanda. Organic Law of June 2012, on the Organization, Functioning and Jurisdiction of the Supreme Court, No. 03/2012/ OL of June 13, 2012 204 South Sudan Republic of South Sudan. Trans. Const. Rep. Of S. Sudan, 2011 18 Tanzania The United Republic of Tanzania. The Anti-Money Laundering Act, 2006 241, 244 The United Republic of Tanzania. The Constitution of the United Republic of Tanzania (2005) 230, 231, 232, 233, 234, 235, 236, 237 The United Republic of Tanzania. The Criminal Procedure Act 235, 236, 249 The United Republic of Tanzania. The Extradition Act, Chapter 368 258 The United Republic of Tanzania. The Mutual Assistance In Criminal Matters Act, Chapter 254 242 The United Republic of Tanzania. The Penal Code, Chapter 16 of the Laws (Revised), 1981 240, 241 The United Republic of Tanzania. The Prevention and Combating of Corruption Act, Chapter 239 242 The United Republic of Tanzania. The Prevention of Terrorism Act, 2002 24, 235, 238, 239, 241, 244, 248 The United Republic of Tanzania. The Tanzania Passports and Travel Documents Act, 2002 244 Uganda The Republic of Uganda. The Anti-Corruption Act, 2009 159 The Republic of Uganda. The Anti-Money Laundering Act, 2013 161 The Republic of Uganda. The Anti-Money Laundering (Amendment) Act, 2017 161 The Republic of Uganda. The Anti-Terrorism Act, 2002 143, 150, 151, 175, 177, 179 The Republic of Uganda. The Constitution of the Republic of Uganda (1995) 141, 142, 143, 146, 157, 168, 169, 180 The Republic of Uganda. The Extradition Act, Act No. 15 of 1965, R.L. Cap. 585, May 24, 1965 258

xviii

Table of Authorities

The Republic of Uganda. The Geneva Conventions Act, 1964 145, 156, 180 The Republic of Uganda. The Immigration Act, 1970 162 The Republic of Uganda. The International Criminal Court Act, 2010 155, 156 The Republic of Uganda. The Leadership Code Act, 2002 158, 159 The Republic of Uganda. The Magistrates Act, 1971 142, 180, 260 The Republic of Uganda. The Penal Code Act, 1950 143 The Republic of Uganda. The Police Act, 1994 176 The Republic of Uganda. The Prevention and Prohibition of Torture Act, 2012 42, 150, 152, 180 The Republic of Uganda. The Prevention of Trafficking in Persons Act, 2009 162 The Republic of Uganda. The Registration of Persons Act, 2015  77, 162 The Republic of Uganda. The Trial on Indictments Act, 1971 142, 180, 260 The Republic of Uganda. The Uganda Peoples’ Defence Force Act, 1992 142, 146, 147, 149, 172 The Republic of Uganda. The Uganda Peoples’ Defence Force Act, 2005 142, 146, 148, 150, 172 3

Municipal Case Law

Burundi None Kenya Abdi Kaarshe Mohammed & 4 Others v. Republic, Criminal Revision No. 151– 155 (2013) eKLR 106 Abdi Mohamed Farah v. Nairobi Star Publication Ltd & Another, Civil Case No. 15 (2013) eKLR 105 Abdul Mohamed Abdulrahman v. Republic, Criminal Appeal No. 81 (2013) eKLR 106 Abdullahi Harun Aden & Another v. Republic, Criminal Case No. 7 (2011) eKLR 95 Aboud Rogo Mohamed & 3 Others v. Republic, Criminal Case No. 91 of 2003 (2005) eKLR 120

Table of Authorities

xix

Aboud Rogo Mohamed & Another v. Republic, Criminal Case No. 793 (2010) eKLR 120 Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others Petition 628, 630 of 2014 & 12 of 2015 (Consolidated) eKLR  91, 92, 99, 111, 136 David Gitau Njau & 9 Others v. Attorney General, Petition No. 340 of 2012 (2013) eKLR 84 Ibrahim Bishar Adan & Another v. Republic, Criminal Appeal No. 87 and 88 (2014) (consolidated) eKLR 105 Juma Njuguna & Another v. Republic, Criminal Appeal No. 59 (2013) eKLR  105 Kenya National Commission on Human Rights & Another v. Attorney General & 3 Others, Constitutional Petition No. 227 (2016) 99 Mahadi Swaleh Mahadi v. Republic, Criminal Case No. 23 (2014) eKLR  103 Masoud Salim Hemed & Another v. Director of Public Prosecution & 3 Others, Petition No. 7 (2014), eKLR 89 Mohamed Abdi Adan v. Republic, Criminal Appeal No. 168 (2015) eKLR 106 Mohammed Haro Kare v. Republic, Criminal Appeal No. 49 (2016) eKLR  106 Muslims for Human Rights (MUHIRI) & Another v. Inspector-General of Police & 5 Others, Petition No. 19 (2015) eKLR 117 Nur Deka Maalim v. Republic, Criminal Appeal No. 88 (2015) eKLR 106 Pancras Oteyo Akumu v. Republic, Criminal Appeal No. 35 of 1984 (1985) eKLR 84 Republic v. Abdi Samad Mohamed & Another, Criminal Case No. 7 of 2013 (2017) eKLR 105 Republic v. Diana Salim Suleiman & Another, Criminal Case No. 23 (2014) eKLR 103 Republic v. Ibrahim Bille Jelle, Criminal Case No. 3 of 2013 (2016) eKLR 103 Republic v. Muneer Harron Ismail & 4 others, Criminal Revision No. 51 of 2009 (2010), eKLR 126 Richard Baraza Wakachala v. Republic, Criminal Appeal No. 109 (2015) eKLR 106 Thomas Mwanzia Komo v. Republic, Criminal Appeal No. 98 (2014) eKLR  106 Wachira Weheire v. Attorney General, High Court of Kenya, Miscellaneous Civil Case 1184 of 2003 (2010) eKLR 115

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Table of Authorities

Washington Jakoyo Midiwo v. The Minister, Ministry of Internal Security & 2 Others, Petition 538 (2012) eKLR 121 Wendo Idi Zuberi v. Republic, Criminal Appeal No. 186 (2015) eKLR 98 Zuhura Suleiman v. The Commissioner of Police & 3 Others, Miscellaneous Application 441 (2010) eKLR 107 Rwanda None None

South Sudan

Tanzania None Uganda Dr. Kizza Besigye & Others v. Attorney General (Const. Petition No. of 2007) UGCC (2010) 171, 173, 174 Nestor Machumbi Gasasira v. Uganda (Constitutional Court of Uganda), Constitutional Reference No. 17 of 2011 160 Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18 47, 156, 168, 175, 176, 256 Susan Kigula & 416 Ors v. Attorney General, Constitutional Petition No. 6 of 2003, (2005) UGCC 8 146 Uganda v. Hussein Hassan Agade & 12 Others, High Court of Uganda (International Crimes Division), Criminal Session No. 0001 of 2010, judgment May 26, 2016 177 Uganda v. Kwoyelo (2015) UGSC 5 169, 170, 283 Uganda v. Okot & 12 Ors. (2012) UGHC 97 152 Uganda v. Robert Sekabira & 10 Others, High Court of Uganda at Kampala, No. 0085 of 2010 175 Uganda v. Sheikh Siraje Kawooya and 13 Others, High Court of Uganda at Kampala (International Crimes Division), No. 004 of 2015 178 Uganda v. Umotoni Annet, High Court of Uganda (International Crimes Division), HCT-00-ICD-CR-SC-No. 003 of 2014 162 Uganda Law Society v. Attorney General of the Republic of Uganda (Constitutional Petition No. 18), (2006) UGCC 10 151, 172

Table of Authorities

4

xxi

International Case Law

The African Court on Human and Peoples’ Rights Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014 (judgment of Nov. 24, 2017) 216 “Rules of Court.” June 2, 2010 50 Wilfred Onyango and others v. Tanzania, African Court on Human and Peoples’ Rights, application, 006/2013 (judgment of March 18, 2016) 50 East African Court of Justice The Attorney General of the Republic of Rwanda & Plaxeda Rugumba (Appellate Division), Appeal No. 1 of 2012, delivered June 2012 8 James Katabazi and 21 Others vs. Secretary General of the East African Community and the Attorney General of Uganda, Reference No. 1 of 2007, delivered Nov. 1, 2007 8, 173 Mary Ariviza & Okotch Mondoh v. Attorney General of the Republic of Kenya and the Secretary General of the East African Community, Reference No. 7 of 2010, delivered Dec. 1, 2010 8 Omar Awadh and 6 Others vs. Attorney General of Uganda (Appeal), Appeal No. 2 of 2012 Arising from REF No. 4 of 2011, delivered Apr. 15, 2013 47, 156, 168, 176, 177, 257 Plaxeda Rugumba v. the Secretary General of the East African Community & the Attorney General of the Republic of Rwanda, Reference No. 8 of 2010, delivered Dec. 1, 2011 8 European Court of Human Rights Al-Skeini and Others v. The United Kingdom, ECtHR (Grand Chamber), Application no. 55721/07, July 7, 2011 58 Martin v. The United Kingdom, no. 40426/98, ECtHR (Fourth Section), Judgment (Merits and Just Satisfaction) of Oct. 24, 2006 69 European Court of Justice Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (ECJ, 2008) 27, 28 International Criminal Court Case Information Sheet, The Prosecutor v. Dominic Ongwen, Case No. ICC02/04-01/15 (Mar. 26, 2015), URL: http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/situations/situation%20icc%200204/related %20cases/ICC-02_04-01_15/Pages/default.aspx 12 Prosecutor v. Kony, Case No. ICC-02/04-01/05 12

xxii

Table of Authorities

Prosecutor v. Lubanga, ICC Trial Chamber Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06, 14 Mar. 2012 71 “Situation in Kenya: Appeals Chamber Confirms the Admissibility of the Cases.” Press Release, Aug. 30, 2011, ICC-CPI-20110830-PR716, available at https:// www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/ situation%20icc%200109/Pages/situation%20index.aspx 11 Warrant of Arrest for Dominic Ongwen (July 8, 2005) 12 Warrant of Arrest for Joseph Kony, issued on July 8, 2005 as amended on Sept. 27, 2005 12 Warrant of Arrest for Okot Odhiambo (July 8, 2005) 12 Warrant of Arrest for Raska Lakwena Issued (July 8, 2005) 12 Warrant of Arrest for Vincent Otti (July 8, 2005) 12 International Court of Justice Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. (Dec. 19) 11, 58, 59 Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion of July 8, 1996 57 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion (July 9, 2004)  59 Military And Paramilitary Activities In And Against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) 72, 73 International Criminal Tribunal for the Former Yugoslavia Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A (ICTY, Oct. 2, 1995) 66, 69 Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment (ICTY, Apr. 3, 2008)  67 Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment (ICTY, Nov. 30, 1995) 66 Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal (ICTY, June 16, 2004) 66 Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-0484bis-T (ICTY, Nov. 29, 2012) 66 Prosecutor v. Tadic, Case No. IT-94-1, Judgement (July 15, 1999) 66, 69, 73, 124 International Criminal Tribunal for Rwanda Barayagwiza v. Prosecutor, Case. No. ICTR-97-19, Decision (Nov. 3, 1999)  251

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“Letter to the President of the UNSC (transmitting the final report of the ICTR and examining its work).” S/2015/884, dated Nov. 17, 2015 198 Prosecutor v. Ruggiu, Case. No. ICTR-97-32-I, Judgement and Sentence (June 1, 2000) 185, 186 Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-A (June 1, 2001) 199 Prosecutor v. Nahimana, Case No. ICTR-99-52-A, Judgement (Nov. 28, 2007) 186 Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgement (Dec. 2, 2008) 185 “Report of the International Criminal Tribunal for Rwanda.” U.N. Doc. A/69/ 206-S/2014/546 198 “Report on the Completion Strategy of the International Criminal Tribunal for Rwanda.” U.N.  Doc. S/2015/340 198 Supreme Court of the United States Crist v. Bretz, 437 U.S. 28 (1978) 142, 249 Ex parte Milligan, 71 U.S. (4 Wall) 2 (1866) 69 Frisbie v. Collins, 342 U.S. 519 (1952) 255, 256 Ker v. Illinois, 119 U.S. 436 (1886) 255, 256 United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) 249 United Kingdom Courts Regina v. Horseferry Road Magistrate’s Court Ex Parte Bennett (1994) 1 A.C. 42 177, 256 Regina v. Nicholas Robert Neil Mullen (1999) EWCA Crim 278 177, 256 U.S. Court of Appeals United States v. Ali, 799 F.3d 1008, 11016 (8th Cir. 2015) 113 United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) 255

Chapter 1

Counterterrorism in the East African Community 1.1

Introduction: Partners in a Shared Fight

The East Africa Community (EAC)1 has confronted has a range of serious conflict and security problems over the past 25 years, to include internal and transnational attacks by individual terrorists, armed groups, and “organized armed groups,”2 as well as problems associated with support to regional peacekeeping operations. In fact, many individuals and groups have used 1  T he Treaty of the East African Community was signed on Nov. 30, 1999, and entered into force on July 7, 2000, following its ratification by the three original Partner States, Kenya, Uganda and Tanzania. The Republic of Burundi and the Republic of Rwanda acceded to this treaty on June 18, 2007, and became full members of the Community effective on July 1, 2007. The newly independent South Sudan acceded to the EAC Treaty in 2016, becoming the sixth Partner State. Ken Karuri, South Sudan officially joins East African Community, Africa News (Apr. 15, 2016,), http://www.africanews.com/2016/04/15/south-sudan-officially-joinseast-african-community/ (last visited Oct. 25, 2017). While South Sudan has adopted a 2011 Transitional Constitution that provides for a National Constitutional Review Commission (NCRC) to prepare a yet-to-be finalized, permanent Constitution, the constitutional drafting process has been repeatedly delayed because of difficult political problems. Andreas Hirblinger, South Sudan: Defence of Constitutionalism may just Secure the Power of the Powerful, African Arguments (Jan. 9, 2014), http://africanarguments.org/2014/01/09/ south-sudan-defence-of-constitutionalism-may-just-secure-the-power-of-the-powerful-byandreas-hirblinger/ (last visited Oct. 25, 2017). All EAC Partner States are also signatories to the Constitutive Act of the African Union; Burundi, Rwanda, Tanzania and Uganda have each ratified the Constitutive Act on May 26, 2001, while Kenya’s ratification was effective on July 10, 2001, and South Sudan acceded to the treaty on Aug. 15, 2011. UN Treaty Collection, https://treaties.un.org/ (last visited Oct. 25, 2017). Sudan signed the Vienna Convention on Succession of States in respect of Treaties on Aug. 23, 1978, which entered into force on Nov. 6, 1996, but has not ratified it; this limits the possible application of that treaty to South Sudan. See generally UN Treaty Collection, https://treaties.un.org/pages/UNTSOnline .aspx?id=2&clang=_enhttps://treaties.un.org/pages/UNTSOnline.aspx?id=2&clang=_en (last visited Oct. 27, 2017). 2  The 1977 Additional Protocol II applies to conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Protocol II Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), Article 1. By its terms, Additional Protocol II does not apply to a range of internal disturbances; this raises an issue regarding the demarcation between a law enforcement problem and a non-international armed conflict.

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004389892_002

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violent acts (i.e., terrorism) as a means of pursuing political goals. While each of the six Partner States has made numerous international human rights commitments regarding international humanitarian law3 and domestic law enforcement practices and procedures,4 each State also has incomplete or inconsistent national (civilian/military) laws, with uneven enforcement by police/security organizations and the judiciary. This has impaired the effectiveness of rule of law activities and, in some cases, has likely impaired conflict resolution. This book examines human rights law on a comparative basis within the EAC as it relates to a range of counter-terrorism issues; in other words, this book focuses on the laws and practices adopted by States against those domestic and foreign persons/groups who pursue political goals through violent means. Policymakers, legal practitioners, and academics have used various definitions of terrorism over the past 25 years, to include within the EAC.5 This 3  All six EAC Partner States are parties to the 1949 Geneva Conventions, as well as the 1977 Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts) and the 1977 Additional Protocol II. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva Convention IV). UN Treaty Collection, https://treaties. un.org/pages/UNTSOnline.aspx?id=1. Sudan acceded to the four Geneva Conventions on Mar. 23, 1958, and South Sudan has indicated its consent to be bound by the conventions, as well as the Additional Protocols, by succession upon independence. South Sudan Ratifies the Geneva Conventions, Sudan Tribune, July 19, 2012, https://reliefweb.int/report/southsudan-republic/south-sudan-ratifies-geneva-conventions (last visited Oct. 27, 2017), but it apparently has not made a formal notification of succession to the United Nations (UN). 4  See, for example, G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights (ICCPR) (Dec. 16, 1966) (adopted and opened for signature, ratification and accession by General Assembly, entered into force Mar. 23, 1976). Five EAC Partner States have acceded to the ICCPR, each without any reservations: Burundi (Aug. 9, 1990), Kenya (Mar. 23, 1976), Rwanda (Mar. 27, 1976), Tanzania (Sept. 11, 1976) and Uganda (Sept. 21, 1995), but South Sudan is a non-party. UN Treaty Collection, https://treaties.un.org/ (last visited Oct. 25, 2017). The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF), adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders, Aug. 27 to Sept. 7, 1990, provides a minimum standard for domestic law enforcement operations under international human rights law. 5  A frican Counterterrorism Cooperation: Assessing Regional and Sub­ regional Initiatives 86–7 (Andre Le Sage, ed. 2007). One early definition was offered by the UN General Assembly in 1995 as: “Criminal acts intended or calculated to provoke

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has caused interpretation problems within the community in that the Partner States may interpret international human rights obligations differently, or in that a ruling government may adopt the rhetoric of counterterrorism as a means of justifying repressive internal practice with a resulting loss of legitimacy in the rule of law. As a starting point, this book adopts the definition offered by Andre Le Sage, a professor and the Academic Chair for Terrorism and Counterterrorism at the Africa Center for Strategic Studies at the National Defense University. According to Dr. Le Sage: Terrorism is widely viewed as a manifestation of political violence that is distinct from other types of substate violence such as guerrilla warfare, organized crime, and mass civil conflict. It is characterized by premeditation with the aim of creating a climate of extreme fear, the targeting of a wider audience beyond the immediate victims, and the symbolism of its targets, and is generally used to influence broader a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them….” G.A. Res. 49 A, art. I(3), Measures to Eliminate International Terrorism (Feb. 17, 1995). The UN Member States have been negotiating a comprehensive convention on international terrorism since 2000, but there has been a deadlock over the definition of the term “terrorism.” See, for example, UN General Assembly, Sixth (Legal) Committee, Measures to Eliminate International Terrorism (agenda item 106),” http://www.un.org/en/ ga/sixth/64/Terrorism.shtml (last visited July 22, 2017). There has, however, been agreement on three separate protocols that address certain aspects of terrorism: the International Convention for the Suppression of Terrorist Bombings, adopted on Dec. 15, 1997; the International Convention for the Suppression of the Financing of Terrorism, adopted on Dec. 9, 1999; and International Convention for the Suppression of Acts of Nuclear Terrorism, adopted on Apr. 13, 2005. UN Special Rapporteur Martin Scheinin has also made some useful observations on the lack of an internationally acceptable definition for the term. He argues that the use of the existing terrorism conventions as “trigger-offenses” would not, in itself, be sufficient to determine whether an act is properly “terrorist” in nature; he argues that the existing terrorism conventions should be read in the context of a three-step cumulative methodology drawn from UN Security Council Resolution 1566 which would ensure that “only conduct of a terrorist nature that is identified as terrorist conduct.” UN Economic and Social Council (Commission on Human Rights), Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, U.N. E/CN.4/2006/98 (Dec. 28, 2005), at paras. 35–41. In 2006, the UN General Assembly adopted a Global Counter-Terrorism Strategy that outlines a plan of action for Member States that includes measures to address conditions conducive to terrorism, measures to prevent and combat terrorism, measures to build State capacity of prevent and combat terrorism, and measures to ensure respect for human rights and the rule of law. UN General Assembly, “The United Nations Global Counter-Terrorism Strategy,” U.N. Doc. A/RES/60/288 (Sep. 20, 2006).

4

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political behavior and advance a particular set of political and social objectives.6 This book explores the variable definitions and applications of terrorism and counterterrorism within the EAC, to include identifying gaps, consistencies, and areas of legal concern. The EAC Partner States share many interests and characteristics that set them apart from other regional organizations and countries on the continent; this provides a basis for comparative analysis of national counterterrorism laws and practices. First, Burundi, Rwanda and Tanganyika (Tanzania) have a shared heritage as one colonial territory (German East Africa) during the period 1884–1919; after World War I, Burundi and Rwanda came under Belgian colonial rule and Tanganyika came under British rule.7 Second, Kenya, Uganda, and Tanzania have a shared legal heritage with a common law tradition inherited from British colonial rule.8 Indeed, even Rwanda, a country that was never a British colony, has become a member of the Commonwealth9 and has adopted the English language.10 English and Kiswahili are widely spoken throughout the region, although public documents and press reporting are 6  Id. at 4. 7  Kennedy Gastorn & Wanyama Masinde, The EAC Common Market, in East African Community Law: Inspirational, Substantive and Comparative EU Aspects, 286 (Emmanuel Ugirashebuja, et al., eds.2017). 8  The Rwandan legal system combines elements of both civil and common law. While a criminal defendant has a presumption of innocence and a right to legal representation, there is an absence of a jury and the prosecution—not the defense lawyers—prepares the investigation. Report, U.S. Department of State, Embassy of the United States (Kigale), Criminal Justice in Rwanda, http://rwanda.usembassy.gov/criminal_justice_in_ rwanda.html (last visited Nov. 29, 2015). Burundian law is, however, based on the civil law system which the country inherited from Belgium, although the country retains some elements of customary law. Burundi has experienced multiple internal armed conflicts and crises, with uneven progress on human rights issues, since independence in July 1962. See generally UN Human Rights Council (General Assembly), Working Group on the Universal Periodic Review, U.N. Doc. A/HRC/WG.6/3/BDI/1 (Dec. 1–15, 2008); UN Human Rights Council, Report of the Working Group on the Universal Periodic Review, U.N. Doc. A/HRC/23/9 (Mar. 25, 2013). 9  B BC News, Rwanda Becomes a Member of the Commonwealth, (Nov. 29, 2009), http:// news.bbc.co.uk/2/hi/africa/8384930.stm (last visited July 19, 2017). 10  English became an official language of Rwanda, alongside French and native Kinyarwanda, after the Rwandan Patriotic Front (RPF) assumed power in 1994, although Rwanda claims that the switch was not motivated by France’s support to the Hutu-dominated government before the 1994 genocide. Reportedly, the Rwandan government sees English language instruction in its schools as a means for increasing its integration in the EAC and the global economy. Chris McGreal, Rwanda to Switch from French to English in Schools,

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5

typically in English. Third, many ethnic groups, as well as ethnic conflicts, have spilled over the borders and have created international concerns. For example, Burundi and Rwanda have the same basic Hutu/Tutsi divide with fearful refugees over the past 50 years fleeing to the neighboring Democratic Republic of the Congo (DRC), Tanzania, and Uganda. Fourth, there has been expanding economic trade within the community, to include relaxing border and immigration controls. Fifth, the Partner States have often cooperated on military matters whether it has been Tanzanian support to the April 1979 ouster of Uganda’s dictator Idi Amin,11 Uganda’s “unconsented” support—through the exodus of Rwandan Tutsis serving in the Ugandan military—to the 1990–94 civil war in Rwanda, or the current multi-national partnership in the African Union (AU) Mission in Somalia (AMISOM).12 In general terms, Kenya, Tanzania and Uganda share a common military heritage that derived from participation in the King’s African Rifles (KAR)—under British leadership and discipline from 1902 to 1964.13 Moreover, the insurgent Rwanda Patriotic Army, later known as the Rwandan Defense Forces (RDF), had been initially formed in 1990 from expatriate soldiers who had been serving the Ugandan military. Finally, all six States are largely black and Christian in religious beliefs; each country has a Muslim (predominately non-Salafist Sunni and some Shia) minority with Islamic militants who move between countries.14 In short, the The Guardian, Oct. 13, 2008, http://www.theguardian.com/ world/2008/oct/14/rwanda -france (last visited July 19, 2017). 11  George Roberts, The Uganda-Tanzania War; The Fall of Idi Amin, and the Failure of African Diplomacy, 1978–1979, 8 J. E. Afr. Stud. 4, 692–709 (2014) (examining the origins of the conflict and the subsequent Tanzanian invasion of Uganda that resulted in Amin’s ouster). 12  The UN Security Council authorized the deployment of African Union peacekeepers to Somalia, under its Chapter VII authority, by means of UNSCR 1744 (Concerning the Situation in Somalia), U.N. Doc. S/RES/1744 (Feb. 21, 2007) (noting the January 2007 communique by the AU Peace and Security Council to deploy a six-month mission aimed at initial stabilization in Somalia). This initial authorization by the UN Security Council has been extended on numerous occasions on either a bi-annual or annual basis, with the current extension through May 2016. Sec. Res. No. 2232, Concerning the Situation in Somalia, U.N. Doc. S/RES/2232 (July 24, 2015). 13  The KAR fielded 32,000 African soldiers, supported by a half a million non-combatants, during World War I, and later expanded to 320,000 soldiers during World War II. This British colonial experience had a direct impact on the organization, manning, and discipline on the military forces of the former colonies after independence. Timothy H. Parsons, East African Soldiers in Britain’s Colonial Army: A Social History, 1902–1964 (1996) (unpublished PhD dissertation, Johns Hopkins University). 14  According to one study, it is estimated that the Muslim population in the EAC will remain low through the year 2030: Burundi (2.2 percent). Kenya (8.7 percent), Rwanda

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Partner States share many common political, military, economic and social policy concerns that can be addressed through greater cooperation on legal matters, with the emphasis here on counterterrorism law and practice. This book addresses two primary, related research questions: To what extent do the current national counter-terrorism laws and practices of the EAC Partner States comply with existing international human rights safeguards? What laws or practices can the EAC adopt to achieve better compliance with human rights safeguards in both civilian and military counter-terrorism operations? This book hypothesizes that updated national laws, with enhanced law enforcement operations and national criminal prosecutions, can facilitate greater regional political and economic integration—by eliminating some of the underlying problems that can bring about unwanted international scrutiny. This book recommends specific constitutional and statutory changes in each country, as well as a regional mutual legal assistance treaty and increased support to the East African Court of Justice (EACJ). 1.2

The East African Community

The EAC is an inter-governmental, treaty-based organization established to “foster economic, social, cultural, political, technological and other ties,” leading to a “Monetary Union and ultimately a Political Federation.”15 Notably, Article 6 recognizes certain fundamental principles for the community, to include “(d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, and gender equality, as well as the recognition, promotion and protection of human and peoples [sic] rights in accordance with the provisions of the

(2.3 percent), Tanzania (25.8 percent), and Uganda (10.9 percent). Simon Rogers, Muslim populations by Country: How Big will each Muslim Population be by 2030?, The Guardian, Jan. 28, 2011, http://www.theguardian.com/news/datablog/2011/jan/28/ muslim-population-country-projection-2030 (last visited July 19, 2017). One source estimates South Sudan’s current Muslim population as 18 percent of a total population of 12.7 million persons, but there is a lack of reliable information on either the overall population or the breakdown by religion. Muslim Population, Muslim Population. com, http://www.muslimpopulation.com/africa/ (last visited Nov. 2, 2017). 15   T reaty of the East African Community, supra n.1, Preamble. The EAC has overlapping membership and obligations with the Inter-Governmental Authority on Development (IGAD) and the Southern African Development Community (SADC); this book will explore those relationships and identify areas of legal concern.

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African Charter on Human and Peoples’ Rights….”16 The treaty entered into effect on July 7, 2000, and the community has its headquarters, with its own EACJ handling issues relating to treaty application and a limited range of other matters, in Arusha, Tanzania. Here, it is apparent that the EAC Partner States intended to create a Court with limited jurisdiction, likely focused primarily on economic and trade issues. Article 27 provides: 1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty. 2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.17 In fact, the EACJ could be fairly characterized as a work-in-progress.18 While the EAC Partner States have subsequently agreed to a 2004 Customs Union Protocol 16  I d. supra n.1, art. 6(d). The 1981 African Charter on Human and Peoples’ Rights (the Banjul) Charter is a human rights instrument that was adopted to promote human rights, duties and freedoms on the African continent. The Charter has been adopted by 53 African nations, with the single exception of the newly independent Republic of South Sudan. African Charter on Human and Peoples’ Rights (the Banjul) Charter, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. UN Treaty Collection, https://treaties.un.org/ (last visited Nov. 2, 2017). 17   T reaty of the East African Community, supra n.1, art. 27. 18  The East African Community, Official Website, http://www.eac.int/ (last visited Nov. 2, 2017). See T.O. Ojienda, The East African Court of Justice in the Reestablished East African Community: Institutional Structure and Function in the Integration Process, 11 E. Afr. J. Peace & Hum. Rts. 220 (2005) (providing a history of political, economic and legal integration in the EAC, and arguing that the EACJ requires expanded jurisdiction on human rights issues with greater judicial authority and independence). See also James Gathii, Mission Creep or a Search for Relevance: the East African Court of Justice’s Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 2 (2013) (arguing that the EACJ has evolved from its limited jurisdictional grant, as well as its institutional weaknesses, through the use of “elastic interpretative methodology” to decide controversial human rights and rule of law cases despite resistance from the Partner States and the EAC Secretary General). Thus, while there may be merit in the Court’s activist approach to its jurisdiction, there is also considerable value in adopting a protocol that would define the roles and responsibilities of the Partner States and the EACJ on human rights and law enforcement issues. This would enhance the legitimacy of the Court’s expanded role and contribute to greater executive accountability within the EAC. See generally Kofi Oteng Kufuor, The African Human Rights System (2010) (involving an analogous effort by the African Human Rights Commission, through its “anti-clawback” jurisprudence, to expand its jurisdiction in areas not clearly delineated by its charter).

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and a 2009 Common Market Protocol, the partners have not concluded any other protocols.19 This means that the EACJ lacks explicit authority to address human rights and law enforcement issues raised by States Parties, human rights organizations or individuals.20 Nonetheless, a strengthened EAC can help increase legal capacity and legitimacy among countries with like-minded interests. The EAC seeks expanded legal cooperation, to include harmonizing legal education and national laws, as well as promoting the spread of legal knowledge through the revived publication of the East African Law Reports and similar publications.21 Nonetheless, while the EAC Partner States have individually taken many important steps to promote the rule of law and mutual legal assistance on counter-terrorism matters,22 there have been significant shortcomings in practice, suggesting that certain reforms are needed to

19   E AC Website, supra n.18 (last visited Nov. 2, 2017). 20  The EACJ has, however, asserted limited jurisdiction over human rights issues under the rule of law provision in Article 6(d), acknowledging that the “extended jurisdiction” to hear human rights cases has not been put into operation. See, for example, James Katabazi & 21 Others vs. Secretary General of the East African Community and the Attorney General of Uganda, Reference No. 1 of 2007, delivered Nov. 1, 2007 (“While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because the reference includes allegation of human rights violation.”). See also Mary Ariviza & Okotch Mondoh v. Attorney General of the Republic of Kenya & the Secretary General of the East African Community, Reference No. 7 of 2010, delivered Dec. 1, 2010 (finding jurisdiction to consider human rights claims involving violations of Articles 6(c) and 6(d) regarding the promulgation of the 2010 Kenyan Constitution); Plaxeda Rugumba v. the Secretary General of the East African Community & the Attorney General of the Republic of Rwanda, Reference No. 8 of 2010, delivered Dec. 1, 2011 (holding that a Rwandan military officer had been illegally detained prior to a military court placing him in preventive detention pursuant to the Rwandan Code of Criminal Procedure); and The Attorney General of the Republic of Rwanda and Plaxeda Rugumba (Appellate Division), Appeal No. 1 of 2012, delivered June 2012 (affirming the decision of the First Instance Division of the EACJ, and holding—based upon the Katabazi decision—“that there is a layer of inchoate human rights in the Treaty, waiting for practical implementation and operationalization via the channel envisaged in article 27(2).”). 21   T reaty of the East African Community, supra n.1, art. 126 (2). 22  See generally Cephas Lumina, Counter-Terrorism Legislation and the Protection of Human Rights: A Survey of Selected International Practice, 7 Afr. Hum. Rts. L. J. 35 (2007) (examining counter-terrorism legislation on the African continent and elsewhere in the world, to include some extradition measures, introduced subsequent to the 9/11 attacks on the United States; concluding that a State’s efforts to combat terrorism can culminate in the abridgement of rights and freedoms belonging to culpable and innocent persons).

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harmonize and advance national laws.23 Indeed, there is a lack of communitywide agreement on legal assistance and extradition matters, with individual cases likely handled on an ad hoc basis.24 Each EAC Partner State has confronted individual terrorists, groups, and organized armed groups operating within its own borders, sometimes operating from sanctuary in neighboring states;25 human rights organizations have also alleged that each State has committed human rights abuses in its resulting domestic counter-terrorism operations. This raises issues concerning the application of human rights law in that armed groups have changed over time, evolving from criminal gangs, to terrorist groups, and to rebel/insurgent movements seeking control of territory and political power, often using different means and methods against different targets (military/civilian) at 23  By comparison, the Economic Community of West African States (ECOWAS) has adopted the Convention on Mutual Assistance in Criminal Matters (A/P.1/7/92) (covering a range of topics to include evidentiary matters, the forfeiture of the proceeds of a crime, the transfer of proceedings and costs), as well as the Convention on Extradition (A/P.1/8/94) (establishing certain extradition principles, to include the nonuse of extradition for political purposes). The ECOWAS Documentation on-line, http:// documentation.ecowas.int/legal-documents/protocols (last visited July 19, 2017). The ECOWAS Conventions could be used as models for similar EAC efforts. 24  Some EAC Partner-States have apparently signed bilateral agreements on a range of law enforcement issues, but those agreements are not necessarily registered with the UN Secretariat and published pursuant to Article 102 of the UN Charter. If so, this would raise issues involving transparency and democratic accountability. See, for example, Michael Sung, Rwanda Signs Extradition Treaties after Abolishing Death Penalty, Jurist, Aug. 3, 2007, http://jurist.org/paperchase/2007/08/rwanda-signs-extradition-treaties-after.php (last visited July 19, 2017). See also IRIN News, RWANDA-UGANDA: Neighbours Sign Extradition Treaty, July 18, 2005, http://www.irinnews.org/report/55483/rwanda-ugandaneighbours-sign-extradition-treaty (last visited July 19, 2017) (discussing the bilateral Rwanda-Uganda extradition treaty; the agreement was seen as an effort to ease the tensions that had existed between the two countries since 2000). See also Nasra Bishumba, Rwanda-Kenya sign extradition treaty, New Times (Kigale), Oct. 1, 2009, http://www .newtimes.co.rw/section/read/11638. (Apr. 6, 2018). 25  The UN General Assembly has recognized that States have an obligation under public international law to refrain from intervening in the internal affairs of other States. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations provides that “every State has the duty to refrain from organizing, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.” G.A. Res. 2625 (XXV) (Oct. 24, 1970). This principle has also been confirmed by the International Court of Justice. ICJ, Military and Paramilitary Activities in and Against Nicaragua, (Merits) (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), at ¶ 191.

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different times. Both Burundi (the 1993–2006 civil war)26 and Rwanda (the 1994 genocide and the aftermath) have faced extended internal ethnic conflict, often with groups based in the neighboring DRC. Burundi has also recently experienced recent internal upheaval with opposition groups that have been branded as terrorists by the Security Minister,27 a May 2015 coup attempt,28 and allegations of crimes by security forces against opponents.29 This upheaval, which could be characterized as a non-international armed conflict within the meaning of Common Article 3 of the 1949 Geneva Conventions, raises important questions about the application of international humanitarian law to what could be characterized as on-going war crimes and possible crimes against humanity. Kenya has faced multiple threats30 emanating from neighboring Somalia, as well as serious internal political strife following the 2007 presidential elections 26  In 2003–04 Burundi also experienced the first-ever deployment of AU peacekeeping forces. Henri Boshoff & Dara Francis, The AU Mission in Burundi: Technical and Operational Dimensions, Afr. Sec. Rev. 12(3)(2003). 27   B BC News, Burundi Calls Opposition Protesters ‘Terrorists.’ May 2, 2015, http://www .bbc.com/news/world-africa-32566213 (last visited July 19, 2017) (promising to “crack down on a wave of protests, accusing opposition groups of providing cover for a “terrorist enterprise”). 28   B BC News, Burundi President Nkurunziza Faces Attempted Coup, May 13, 2015, http:// www.bbc.com/news/world-africa-32724083 (last visited July 19, 2017). 29  Tom Miles, U.N. Reports Gang-rapes, Mass Graves in Burundi, Reuters, Jan. 15, 2016, http://news.yahoo.com/u-n-reports-gang-rapes-mass-graves-burundi-094513279.html (last visited July 19, 2017). See also Julie Steers, Women Say They Are Being Raped as Part of the President of Burundi’s Fight to Keep Power, Time, Jan. 14, 2016, http://time .com/4179101/rape-burundi/?utm_source=January+15%2C+2015+EN&utm_campaign= 1%2F15%2F2016&utm_medium=email (last visited July 19, 2017) (alleging rapes, mass arrests, and extra-judicial killings by uniformed members of the security forces). 30  The threats emanating from Somalia range from the Harak al-Shabab al-Mujahideen (al-Shabaab, or “the Youth”) with connections reaching from Saudi Arabia and Yemen throughout East Africa, to loosely organized pirates who attack international shipping, and to cross-border refugee flows with tensions between Somalis and ethnic Kenyans. Al Shabaab has conducted many cross-border attacks, to include at least three that produced mass casualties, on foreign soil: in a July 2010 attack in Kampala, it killed 74 persons and injured 100 more; in a July 2013 attack in Nairobi, it killed 67 people and injured hundreds more; and, finally, in an April 2015 attack at Garissa University, it killed at least 147 persons. In part, these attacks indicate that al-Shabaab, originally focused on western targets in Somalia, has expanded its range of operations to conduct reprisals against foreign governments for their support to the western-backed Federal Government of Somalia that was established on Aug. 20, 2012, following the end of the interim Transitional Federal Government (TFG). Abdi Sheikh & Feisal Omar, Al Shabaab militants re-take Somali town from African Union, Reuters, Sept. 6, 2015, http://news.yahoo.com/ al-shabaab-militants-somali-town-african-union-142658341.html (last visited July 19, 2017);

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that resulted in an investigation by the International Criminal Court (ICC).31 Tanzania has largely avoided internal armed conflict, but has sometimes served as a sanctuary for refugees from both Burundi and Rwanda, as well as a recruiting grounds for foreign armed groups. Both Kenya and Tanzania each had one catastrophic experience with al Qaeda, with each serving as a scene in the 1998 attack on the U.S. interests in the region. Uganda has fought multiple internal armed groups, resulting in extended conflict in both the DRC and Southern Sudan. In fact, the terror campaign led by Joseph Kony, the Acholi leader of the Lord’s Resistance Army (LRA),32 was a contributing factor to the 1998–2003 conflict between Uganda and the DRC, which led to the 2005 judgment against Uganda in the International Court of Justice (ICJ).33 The Uganda Peoples’ Defence Forces (UPDF) has had soldiers deployed to the

Ewan Palmer, Nairobi: Man arrested attempting terror attack on Garden City Mall, Int’l Bus. News, Sept. 8, 2015, https//www.uk.news.yahoo.com/nairobi-man-arrested -attempting-terror-162425402.html (last visited July 19, 2017). 31  Press Release, International Criminal Court, No. ICC-CPI-20110830-PR716, “Situation in Kenya: Appeals Chamber Confirms the Admissibility of the Cases,” Aug. 30, 2011, https:// www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20 icc%200109/Pages/situation%20index.aspx. https://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/situations/situation%20icc%200109/Pages/situation%20 index.aspx (last visited Apr. 6, 2018). 32  While initially claiming to lead a rebellion against the Government of Uganda (GoU), the LRA is considered a terrorist organization by the GoU, the United States, and the United Nations. Manisuli Sseenyonjo, The International Criminal Court and the Lord’s Resistance Army Leaders: Prosecution or Amnesty?, Neth. Int’l L. Rev. 51, 53 (2007). See also IRIN News, UGANDA: Interview with Jan Egeland, UN Under Secretary-General for Humanitarian Affairs, Apr. 4, 2006 (calling the “the worst form of terrorism in the world”), http://www.irinnews.org/report/58646/uganda-interview-with-jan-egeland-un-under -secretary-general-for-humanitarian-affairs (last accessed Apr. 6, 2018). 33   I CJ, Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J (Dec. 19). The Court found that Uganda had committed widespread and serious breaches of international law, to include violations of the Charter of the United Nations, the Charter of the Organization of African Unity (OAU), the Regulations Respecting the Laws and Customs of War on Land Annexed to the Fourth Hague Convention of Oct. 18, 1907, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of Aug. 12, 1949, Protocol I Additional to the Geneva Conventions of Aug. 12, 1949, the ICCPR, the African Charter on Human and Peoples’ Rights of June 27, 1981 (the Banjul Charter), the Convention on the Rights of the Child of the Child of Nov. 20, 1989, and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, all of which were binding on Uganda.

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eastern DRC and the Central African Republic (CAR)34 over the past ten years in pursuit of Kony and his senior lieutenants—several of whom are under indictment by the ICC.35 Each EAC State has also been accused of using a range of repressive tactics—often outside the law—that have only stirred more controversy. The EAC Partner States have been major contributors to regional peacekeep­ ing operations, sometimes initiating activities without ex ante authorization by the UN Security Council under its Chapter VII authority,36 thus raising issues about the creation of such missions, accountability for the uses of force,37 and the appointment of senior leaders who may have previously committed 34  Ledio Cakay, On the Heels of Kony: The Untold Tragedy Unfolding in the Central African Republic, Enough, June 24, 2010, http://www.genocidewatch.org/images/CAR_10_06_ xx_On_the_ heels_of_Kony.pdf (last visited July 19, 2017). 35  Prosecutor v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest for Joseph Kony Issued on July 8, 2005, as Amended on Sept. 27, 2005; Prosecutor v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest for Vincent Otti (July 8, 2005); Prosecutor v. Kony, Case No. ICC-02/04 -01/05, Warrant of Arrest for Raska Lakwena Issued (July 8, 2005); Prosecutor v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest for Okot Odhiambo (July 8, 2005); Prosecutor v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest for Dominic Ongwen (July 8, 2005). According to the decision of Pre-Trial Chamber II, No. ICC-02/04-01/05-248 (July 11, 2007), the proceedings against Raska Lukwiya have been terminated based upon reliable evidence that he was killed on Aug. 12, 2006. The warrants are available at http://www.icc -cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc %200204/related%20cases/icc%200204%200105/Pages/uganda.aspx. The warrant against Vincent Otti is apparently still valid, even though the LRA has confirmed death. Uganda’s LRA confirm Otti Death, BBC News, Jan. 23, 2008, http://news.bbc.co.uk/2/ hi/africa/7204278.stm (last visited July 19, 2017). On Feb. 16, 2015 Pre-Trial Chamber II severed the proceedings against Ongwen from the remaining co-defendants. ICC, Case Information Sheet, The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15 (Mar. 26, 2015), http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/ situations/situation%20icc%200204/related%20cases/ICC-02_04-01_15/Pages/default .aspx. 36  See generally Suyash Paliwal, The Primacy of Regional Organizations in International Peacekeeping: The African Example, 51 Va. J. Intl’l L. 185 (2010) (discussing the role of regional peacekeeping operations under Chapters VII and VIII of the UN Charter with comparisons between missions organized by the African Union and the ECOWAS). 37  The issue here is whether a military intervention by a regional organization, without prior approval by the UNSC, constitutes a violation of the Article 2(4), or whether it can be justified under Article 51 as a self-defense action, under Article 52 as an action of a regional organization, or under Article 53 as an enforcement action of the UNSC. Paliwal, The Primacy of Regional Organizations in International Peacekeeping, supra n.36, at 216–222 (arguing that regional organizations now have, by customary international law, “the authorization to engage in first-instance enforcement actions unless and until the Council takes seizen”). Id. at 220. In addition, one could argue that the EAC Partner States, in the absence of a prior UNSC action, might have an obligation to intervene in a troubled

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human rights abuses.38 Moreover, such missions also raise issues involving the selection, training, and discipline of soldiers and civilians who may be later implicated in violations of international humanitarian law and abuses against civilians. Burundi, Kenya and Uganda have contributed peacekeeping forces to the AMISOM, a conflict that has had spillover effects in both Kenya and Uganda.39 Rwanda has been a major contributor to international peacekeeping operations, to include the United Nations (UN) Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), the UN–African Union Mission in Darfur (UNAMID),40 and the UN Mission in South Sudan (UNMISS). Tanzania has contributed troops, along with Senegal and Sudan, to the 2008 invasion of Anjouan and the installation of a new, interim leader for the island as part of an AU mission in support of the Union of the Comoros.41 Currently, Tanzania contributes troops to the UN Force Intervention Brigade (FIB) in the eastern DRC and has provided two brigade commanders over recent years.42 Recently, in December 2015, the AU proposed a deployment of 5,000 peacekeepers to Burundi,43 but Bujumbura has apparently refused such assistance.44 In any foreign country experiencing widespread and fundamental violations of human rights under the emerging responsibility to protect doctrine. 38  See, for example, Human Rights Watch, UN/AU: Investigate Karake’s Past Conduct, Dec. 19, 2007, https://www.hrw.org/news/2007/12/19/un/au-investigate-karakes-past -conduct (last visited July 19, 2017). 39  Brian J. Hesse, Why Deploy to Somalia? Understanding Six African Countries’ Reasons for Sending Soldiers to One of the World’s Most Failed States, 6 J. Middle E. & Afr. 329– 351 (2015) (analyzing the variable national security interests of the troop contributing nations, with each nation characterizing the terrorism threat emanating from Somalia). Hesse also notes that Kenya’s participation, beginning with its October 2011 Operation Linda Nichi (Operation Defend the Country), was its first-ever foreign military venture. Id. at 343. 40  This force originally deployed as the African Union Mission in Sudan (AMIS), and later made a difficult transition to a hybrid peacekeeping mission known as the UNAMID. See generally Roba Sharamo, The African Union’s Peacekeeping Experience in Darfur, Sudan, 3 Conflict Trends 50 (2006). 41  The AU Electoral and Security Assistance Mission to the Comoros was initially established by the AU Peace and Security Council (AUPSC) on Mar. 21, 2006, with 462 troops and South Africa as the lead nation. AU, Communique on the Situation in the Comoros, 47th Meeting of the Peace on Security Council, available at http://www.peaceau.org/en/ resource/documents (last visited Nov. 2, 2017). 42  Lansana Gberie, Intervention Brigade: End game in the Congo?, Africa Renewal Online, Aug. 2013. 43  Aaron Maasho, African Union says ready to send 5,000 peacekeepers to Burundi crisis, Reuters, Dec. 17, 2015, http://www.reuters.com/article/us-burundi-politics-mission -idUSKBN0U10EU20151218 (last visited July 19, 2017). 44   A l Jazeera, Burundi: We will not allow foreign troops to enter, Dec. 21, 2015, http:// www.aljazeera.com/news/2015/12/burundi-rejects-african-peacekeeping-force

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case, the current conflict in Burundi raises questions about Bujumbura’s reliability as a partner in international peacekeeping missions like AMISOM and the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA). Notably, the multidimensional—military, police and civilian—force with responsible for supporting peace and security in the East Africa region is the East Africa Standby Force (EASF), which is one of the five standby brigades that was created by the AU in April 2005 as part of the African Peace and Security Architecture (APSA).45 The EASF “was established as a regional mechanism to provide capability for rapid deployment of forces to carry out preventive deployment, rapid intervention, peace support/stability operations and peace enforcement.”46 Indeed, the EASF has conducted recent civilian and police training at the Rwanda Peace Academy.47 However, the EAC membership does not correspond with the memberships in either the EASF or the Intergovernmental Authority on Development (IGAD). The EASF has ten member nation-states, to include Burundi, Kenya, Rwanda and Uganda, but not Tanzania. In addition, South Sudan, Somalia, and the Union of the Comoros are member-states in the EASF; each state has seen conflict that has resulted in the deployment of peacekeeping troops from EAC member-states and other African nations. Thus, the differing memberships in the EAC and the EASF, along with differing legal authorities for each Partner -soil-151219091828582.html (last visited July 19, 2017). This raises the prospect of a forcible entry into Burundi under the Charter of the AU. Under Article 4(h) of its Constitutive Act, the AU—a Chapter VIII entity under the UN Charter—asserts a right to intervene in a Member State “pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.” The Constitutive Act of the African Union, OAU Doc. CAB/LEG/23.15 (2001), entered into force May 26, 2001. 45  See generally Dr. Solomon A. Dersso, The Role and Place of the African Standby Force within the African Peace and Security Architecture, Institute for Security Studies Paper 209 (January 2010). The AU heads of state and government, at their first ordinary session held in Durban, South Africa in July 2002, adopted a Peace and Security Protocol that created the African Standby Force as a principal means of enforcement. AU, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, July 9, 2002, available at http://www.au2002.gov. In turn, the EAC has also adopted major instruments for regional peace and security. EAC Secretariat, EAC Adopts Two Major Instruments for Regional Peace and Security, (Jan. 24, 2012), available at http://federation .eac.int. 46   East Africa Standby Force, About Us, http://www.easfcom.org/index.php/en/ (last visi­ ted July 19, 2017). 47  The East Africa Standby Force, “Links,” http://www.easfcom.org/index.php/en/events/ past-events (last visited July 19, 2017).

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State under international and domestic law, raises issues concerning the clarity of rule of law obligations for military and civilian personnel supporting counter-terrorism missions involving foreign actors. The IGAD has some overlapping memberships with the EAC and the ESAF, as well some overlapping interests.48 While the IGAD was created as an intergovernmental body with a Secretariat in Nairobi to address development and drought in the region,49 it does have a specialized institute with a limited security role, the Conflict Early Warning and Response Mechanism (CEWARN), which is designed as a collaborative effort “targeted at mitigating and preventing violent conflicts in the sub-region.”50 The CEWARN provides training and apparently functions in an intelligence warning role, with an ability (likely limited) to provide responsive funding for emerging problems. Hence, there are several international organizations in the EAC with related security roles applicable to both non-international and international armed conflict. In theory, the IGAD’s CEWARN mechanism could provide early warning about emerging terrorist threats, as well as information about counterproductive counter-terrorism practices, to its regional partners, while the EASF itself could provide the contingency forces to bring a situation back under the control of law enforcement authorities. The EAC Partner States have also served as transit hubs for foreign nationals involved in terrorism (e.g., Somali expatriates returning from the United States through Nairobi). Here, the United States has supported the EAC with a range of useful political and legal tools. The United States has designated two regional groups, al Qaeda and al-Shabaab, as “foreign terrorist organizations.”51 As a practical matter, this means that a person subject to U.S. jurisdiction cannot provide material support or resources to a proscribed organization or its representatives; its members cannot travel to the United States and such persons already in the United States are subject to removal; and U.S. financial institutions must seize control of any assets. The U.S. Department of State also maintains a “Terrorist Exclusion List” that names organizations (persons)

48  The IGAD member-states are Djibouti, Eritrea, Ethiopia, Kenya, Somalia, South Sudan, Sudan and Uganda. 49  I GAD, About Us, http://igad.int/index.php?option=com_content&view=article&id=93 &Itemid=124 (last visited Nov. 2, 2017). 50  I GAD, About CEWARN, http://www.cewarn.org/index.php?option=comcontent&view= article&id=51&Itemid=53 (Nov. 2, 2017). 51  Report, U.S. Department of State, Foreign Terrorist Organizations, http://www.state .gov/j/ct/rls/other/des/123085.htm (last visited Nov. 2, 2017).

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not eligible for entry into the United States.52 This list includes Army for the Liberation of Rwanda (ALIR), the LRA, and the Allied Democratic Forces (ADF). Three EAC Partner States—namely, Kenya, Rwanda, and Uganda—have each required international support to criminal prosecutions. This support has come through bilateral partners, such as the United States, the United Kingdom or other EAC Partner States, or through international actors such as the UN (e.g., the International Criminal Tribunal for Rwanda, the ICTR) or the ICC. This suggests that a strengthened EAC with its own Court of Justice should help the community address its own rule of law issues with reduced involvement from the international community. 1.3

The Need for a Regional Legal Framework for Counterterrorism

In sum, the EAC is an evolving community of nations with common political, military, legal and social interests. While the Partner States have made important strides in updating domestic laws to comply with international obligations, imposed either by treaty or a Chapter VII resolution from the UN Security Council, thereby facilitating international cooperation in investigating and prosecuting cases, more work is needed to provide a frame­work for guiding and regulating coordinated responses—both at the national and regional levels. Rory Brady, who is a former Attorney General of Ireland and was speaking from a European perspective, sees the motivation for such a framework in “(a) The inherent need for a legal basis, b)  The domestic accountability of a democratically elected government to its electorate, and c) The need for a moral legitimacy underpinning that government’s actions.”53 Brady argues that greater international cooperation will be required to defeat terrorism, especially given the transnational nature of the problem and the fact that nations put their own reputations on the line in their own efforts to combat terrorism. He rightly points out “that a just war can—in the public 52  Report, U.S. Department of State, “Terrorist Exclusion List,” http://www.state.gov/j/ct/rls/ other/des/123086.htm (last visited Nov. 2, 2017). 53  Rory Brady, Terrorism and the Rule of Law: A European Perspective, 49 Va. J. Int’l L. 648 (2008) (offering what he believes to be an effective framework for international counterterrorism efforts). On the other hand, at least one writer believes that human rights and the rule of law stand opposed in East Africa and cannot, therefore, co-exist. Craig A. Stern, Human Rights or the Rule of Law—The Choice for East Africa, 24 Mich. St. Int’l L. Rev. 45 (2015) (examining the nature of negative and positive human rights, largely exemplified by the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR); he argues that the move towards positive rights has put negative rights at risk).

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mind—become unjust by the techniques of war.”54 Thus, the legal problem for the EAC Partner States involves an identification of the nature and types of threats facing the community, the nature of the needed responses (e.g., law enforcement or military, domestic or regional), the viability of existing laws and legal structures for combating diverse threats, and alternative means of facilitating greater regional cooperation consistent with international and EAC shared values. Indeed, a stronger regional framework can also help avoid the need for self-help actions, such as the 1976 Israeli raid to free hostages held by terrorists at the Entebbe International Airport, which could risk international peace and security.55 1.4

Book Overview

This book conducts an in-depth examination of the existing counterterrorism laws and practices in the EAC, as it applies to a range of police and military practices under international legal obligations. This book provides a comparative examination of existing law at the national level and offers a range of reform recommendations. This book does not examine South Sudan, the EAC’s newest Partner State, in any detail. South Sudan gained its independence from Khartoum after a succession vote on July 9, 2011, after two lengthy civil wars (1955–1972 and 1983–2005), but was soon faced its own civil war from 2013–15 that resulted from unresolved issues among domestic groups and political conflicts among senior political-military leaders.56 In fact, in July 2011, the UN Security Council 54  Id. at 653. 55   William Stevenson, 90 Minutes at Entebbe: The Full Story of the Spectacular Israeli Counterterrorism Strike and the Daring Rescue of 103 Hostages (2015) (this interesting book also contains verbatim excerpts from the debate in the UN Security Council after a subsequent complaint was lodged by the Government of Uganda; the Israeli response, with detailed facts and legal argument, made by its ambassador provides clear and convincing evidence of Ugandan state support to the terrorists). The Israeli intervention could probably be best characterized as a proportionate countermeasure taken in response to an antecedent internationally wrongful act and consistent with the Articles on Responsibility of States for Internationally Wrongful Acts (2001) prepared by the International Law Commission. 56  See generally Jok Madut Jok, Breaking Sudan: The Search for Peace (Oneworld Publications, 2017) (noting unresolved issues in South Sudan, including accountability for past human rights abuses, the absence of state protection/security leading to a “gun culture,” ethic/sectional disputes over resources such as access to land for cattle grading and oil revenue, government corruption, and rivalries among political leaders). In overall terms, Jok argues that South Sudan has a problem with national identity in that

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recognized the already difficult situation “faced by South Sudan continues to constitute a threat to international peace and security in the region” and went on to establish the UN Mission to the Republic of South Sudan (UNMISS) to consolidate peace and security.57 Currently, South Sudan is a member of the UN, the African Union, the EAC, and the IGAD; it has acceded to some international human rights and humanitarian law treaties, but there are significant gaps. South Sudan has a 2011 Interim Constitution,58 with an independent judiciary and a Supreme Court; and has convened a constitutional review commission.59 However, that process has also been stalled based upon a range of reasons to include domestic conflict, largely the result of an internal dispute within government, since December 201360 and the 2015 death of the people in the south have long identified themselves with a negative unity, driven largely in opposition to the Khartoum-based racial and religious domination imposed on the south; the country now requires a positive and inclusive national identity that would bring together its diverse cultural and linguistic groups. Id. at 81–82. 57   U NSC, UNSCR 1996 (concerning the establishment of the Republic of South Sudan on July 9, 2011), S/RES/1996, adopted on July 8, 2011. The UN Security Council has subsequently noted, in multiple reports and resolutions, the deteriorating political, security, and humanitarian situation in South Sudan, to include widespread attacks on civilians, the large-scale displacement of persons, and attacks on UN personnel. See, for example, S.C. Res. 2155, U.N. Doc. S/RES/2155 (May 27, 2014) (concerning the human rights situation in South Sudan). The UNMISS mandate has been recently extended until Dec. 15, 2017, with a troop ceiling of 17,000, including a Regional Protection Force and police units. S.C. Res. 2327, U.N. Doc. S/RES/2327 (Dec. 16, 2016) (acting under Chapter VII to extend the UNMISS mandate and increase force levels). 58   T rans. Const. Rep. Of S. Sudan, 2011 (establishing an expansive bill of rights with various civil liberties; a tripartite structure of government involving the national executive, the legislature and the judiciary; anti-corruption and human rights commissions; local governance structures; the powers of the President during a national emergency; and the transitional provisions and the permanent constitution process). Article 200 called for the “President of the Republic shall, after consultation with the Political Parties, civil society and other stake-holders, establish a National Constitutional Review Commission to review the Transitional Constitution of South Sudan, 2011.” 59  Republic of South Sudan, “Presidential Decree No. 03/2012 for the Appointment of fulltime and part time members of the National Constitutional Review Commission,” (NCRC) 2012 A.O.,” RSS/PD/ J/03/20Il, Jan. 9, 2012. 60  In Aug. 2015 the IGAD brokered a peace agreement, with a 30-month transition period, that created a Transitional Government of National Unity that would initiate and oversee a new Constitution, a permanent ceasefire, humanitarian assistance and reconstruction, and transitional justice measures. IGAD, Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed at Addis Ababa, Ethiopia, Aug. 17, 2015. Nonetheless, the parties have not implemented the permanent ceasefire called for in that agreement and the situation still remains “tense and fragile” with on-going hostilities throughout the country with the risk of “an outright ethnic war.” UNSCR 2327 (acting under Chapter VII

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head of the review commission.61 Hence, it would be premature to examine South Sudan’s constitutional, statutory, and decisional law in any detail. In overall terms, the last 50 years of conflict in Sudan and now South Sudan has created significant issues for regional peace and stability, with some countries such as Ethiopia or Uganda hosting South Sudanese combatants, the spread of small arms and light weapons from Sudan/South Sudan into Kenya and Uganda, and displacement of refugees into both Kenya and Uganda.62 South Sudan has many unresolved issues involving past human rights violations and open issues involving the rule of law. Thus, the EAC Partner States have an important stake in South Sudan and the country could benefit from greater engagement with its new EAC Partner States on a full range of rule of law issues. This book does, however, consider such problems from a Kenyan and Ugandan perspective. Chapter 2 provides a detailed normative framework or counterterrorism law in the EAC. This chapter provides a thorough examination of the full range of international law instruments, based on both customary and treatybased international law, that impose obligations on the EAC Partner States in the counterterrorism fight. This chapter includes a series of charts that indicate which Partner States have become parties to various human rights and humanitarian law instruments. In the case of resolutions issued by UN Security Council under its Chapter VII authority, this chapter also indicates the extent to which each Partner State has domesticated its obligations. In short, this chapter provides a normative framework, as well as analysis of key issues, that sets the stage for the detailed country-by-country review in subsequent chapters. to extend the UNMISS mandate and increase force levels), S/RES/2327, adopted Dec. 16, 2016. 61  A frica News, South Sudan takes first steps to a New Constitution, Apr. 20, 2017, http:// www.africanews.com/2017/04/23/south-sudan-takes-first-steps-to-a-new-constitution// (last visited Nov. 20, 2017). See also Mugume Davis Rwakaringi, South Sudan Fighting Delays Delivery of Permanent Constitution, Voice of America, May 23, 2014, https://www.voanews.com/a/south-sudan-fighting-delays-delivery-of-permanentconstitution/1921117.html (last visited Nov. 20, 2017); Alhadi Hawari, Professor Akolde Ma’an Tier passes on, Eye Radio (South Sudan), Dec. 1, 2015, http://www.eyeradio.org/ professor-akold-maan-tier-passes/ (last visited Nov. 20, 2017). 62  The UN High Commissioner for Refugees currently reports, as of Oct. 1, 2017, over 2 million refugees and asylum seekers from that country (South Sudan has an overall estimated population between 7–10 million persons). High Commissioner for Refugees, South Sudan Emergency, http://www.unhcr.org/en-us/south-sudan-emergency.html (last visited Nov. 20, 2017). See also BBC News, South Sudan Country Profile, July 12, 2017, http:// www.bbc.com/news/world-africa-14069082 (last visited Nov. 20, 2017).

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Chapter 3 examines Kenyan counterterrorism law and practice. This chapter examines the four major terrorism threats faced by Kenya over the past 25 years. Thus, this chapter examines the Kenyan legal response to the diverse threats posed by the Somalia-based al-Shabaab, the use of Kenya as a support base/ transit point for Kenyan nationals and foreign fighters who support al-Shabaab, the targeting of western interests in Kenya (i.e., the 1998 al Qaeda attack on the U.S. embassy or the 2002 attacks against Israeli interests in Mombasa) by foreign terrorist organizations, and civil disturbances by domestic groups over political, social and economic grievances. This chapter examines the evolution of Kenyan counterterrorism law and practice, with particular emphasis on the period after the promulgation of the 2011 Kenyan Constitution. This chapter examines a full range of Kenyan statutory and decisional law, using the normative framework provided in Chapter 2, to identify major strengths and weaknesses in Kenyan counterterrorism law and practice. Chapter 4 examines Ugandan counterterrorism law practice. Uganda has also faced a diverse range of terrorism threats over the past 50 years, starting with Idi Amin’s brutal reign of state terror from 1971–1979, through a chaotic period of civil war from 1979–1986 when Yoweri Museveni’s National Resistance Movement (NRM) finally seized power in Kampala. While providing immediate relief to many aggrieved groups from his predecessors, Museveni and his NRM have since ruled the country through a semi-authoritarian government that has limited political and civil rights, thus spawning its own range of domestic terrorist threats. Some threats, such as Joseph Kony’s notorious Lord’s Resistance Army (LRA)—believed by many to now number perhaps 100 combatants and in sanctuary in either the eastern Central African Republic or western Sudan—have been reduced a strategic nullity. Other threats, particularly al Qaeda elements or domestic groups with political, social and economic grievances, create periodic problems for Kampala. Indeed, the July 2010 bombing of a Kampala restaurant/night club during the World Cup Finals, offers an excellent case study in regional cooperation against the al Qaeda/al Shabaab threat. This chapter provides a detailed examination of Ugandan counterterrorism law and practice, showing how the government has addressed various problems through military law and its civilian courts. Again, this chapter uses the normative framework from Chapter 2 to identify major strengths and weaknesses in Ugandan counterterrorism law and practice. Chapter 5 examines counterterrorism law and practice in Burundi and Rwanda in a single chapter, largely because the two countries present many political, social and ethnic similarities with the Hutu-Tutsi conflict, as well as share commonalities in foreign and domestic threats. Both Burundi and

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Rwanda have experienced widespread and systematic human rights abuses since independence in 1962, raising important issues under the 1948 Genocide Convention, the 1949 Geneva Conventions and the 1977 Additional Protocols, the 1966 ICCPR, and the 1984 Torture Convention. Both countries have experienced large-scale refugee flows with people fleeing from ethnic violence to sanctuary in neighboring countries; in turn, the neighboring countries have often provided sanctuary/a base of operations for organized armed groups to reorganize, reequip, and retrain for renewed attacks/raids in the country of origin. Both countries have adopted new constitutions (Burundi, 2005; Rwanda, 2003), with new criminal statutes, that address the ethnic issues, albeit in different ways. Each country has generally domesticated its respective international human rights obligations, although Burundi—with its widespread human rights abuses since April/May 2015—is probably only one step away from hosting a non-international armed conflict. Chapter 6 examines Tanzanian counterterrorism law and practice. The United Republic of Tanzania (Tanzania), consisting of Mainland Tanzania and the largely autonomous Zanzibar archipelago, has experienced a limited range of terrorism threats over the past several decades, largely relating to regional travel by Islamic fundamentalists who move along the Swahili coast from Somalia, through Kenya, to Tanzanian coastal areas and Zanzibar. In fact, the critical political and legal issues in Tanzania today stem from the constitutional status of Zanzibar in the Union legal structure, identity conflicts between the country’s large Christian and Muslim populations (with the Muslim population largely along the coast and on the Zanzibari islands), and—to a lesser extent— foreign fighters who would target western interests in the country (e.g., the 1998 al Qaeda attack on the U.S. Embassy in Dar es Salaam). In any case, Tanzania has probably the strongest and most effective set of counter-terrorism laws in the EAC. Indeed, Tanzanian law provides several useful exemplars that could be adopted by the neighboring countries. Nonetheless, this book also identifies several points of Tanzanian constitutional and statutory law that should be updated. Chapter 7 concludes this book with overall findings concerning counter­ terrorism law and practice in the EAC, with recommended changes in the national laws of the Partner States. This book recommends that the Partner States adopt a mutual legal assistance treaty with explicit provisions regarding the investigation and prosecution of cases, to include the transfer (extradition) of suspects between countries. This chapter provides an overall legal assessment of community counterterrorism law.

22 1.5

Chapter 1

Key Findings

This book makes numerous findings with respect to the national security (terrorism) threats faced by each country, the strengths and weaknesses of existing national counter-terrorism laws, and makes recommendations for legal reform at both the national level and EAC-wide. Kenya, with neighboring Somalia and its own large Muslim-ethnic Somali population, has probably faced the most diverse range of terrorist threats over the past several decades. Kenya faces four general terrorist threat vectors, including al-Shabaab elements targeting Kenyans in response to Kenyan military operations in Somalia; the use of the country as a support base for Kenyan nationals and foreign fighters, as well as a transit point for foreign nationals passing through, who provide support al-Shabaab in Somalia; the targeting of western interests by al Qaeda and other foreign-based groups; and attacks by domestic (ethnic) groups over social grievances such as land rights, religious issues and political rights. Kenya has responded to its terrorist threat with a broad mix of legal tools, to include a new 2010 Constitution with protected civil liberties and a strengthened judiciary, as well as new counter-terrorism statutes. Generally, Kenyan law is compliant with its international obligations under UN Security Council Resolution 1373 and 2178, even though there have been major shortcomings in detention practices, the continued use of torture and other abusive police practices, and with the trial of cases by police (non-lawyer) prosecutors before less experienced judges. Kenya’s terrorism problem has been complicated by corrupt government officials and a very large Somali refugee population. Kenya should ratify the 2006 Convention on Enforced Disappearances and the 2013 Arms Trade Treaty. Kenya needs an expanded police presence in the outlying counties, as well as expanded oversight by the Independent Policing Oversight Authority to curb human rights abuses. Finally, Kenya should adopt the “best practice” guidelines proffered by the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism and by the Kenya National Commission of Human Rights with respect to counter-terrorism legislation. Uganda also faces a diverse range of national security threats, ranging from al Shabaab elements, with its connections to the local Muslim community, emanating from Somalia; the dying remnants of Joseph Kony’s Lord’s Resistance Army (LRA); a domestic political opposition, centered largely among the Baganda peoples in south-central Uganda and the Acholi peoples in the northern districts; and the largely ungoverned and deprived Karamoja region along the border with Kenya. Indeed, the fight against Kony and his

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LRA could be considered a major counter-terrorism success. Thus, the primary threats to Uganda’s national security arise from terrorist attacks mounted by non-state actors, to include some risk that ethnic groups discontented over election results or the division of natural resources could bring about domestic violence or civil disturbances. Uganda has an effective judicial system with well-defined legal instruments—constitutional, statutory and decisional—that address the ter­ rorism threat. Some elements of the judiciary (e.g., the International Crimes Division of the High Court) and the Executive branch (e.g., the Uganda Police and the Joint Anti-Terrorism Task Force) have developed specialized expertise in counter-terrorism cases. Still, Uganda has several important deficiencies in its administration of justice, to include a shortage of staffing and resources for the judiciary, the lack of a witness protection program, abusive police practices, and some shortcomings in its penal code (e.g., the lack of a statute of limitations for treason-related offenses, an unfair rule on double jeopardy, and a provision that allows the trial of a civilian in a military court-martial proceeding). Finally, Uganda must establish a stricter separation between the Executive branch and the judiciary (e.g., the “sieges” of the High Court in Kizza Besigye case). Burundi and Rwanda are considered together in this book, largely because of the common national security (terrorism) threats faced by the two countries, largely related to the long-standing animosity between the Hutu and the Tutsi; this makes for an interesting case study in terms of how events in one country can impact its neighbor and how each has made very different responses. Both countries have experienced widespread human rights abuses, as well attacks “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” within the meaning of the 1948 Genocide Convention since 1959. Burundi has struggled with internal conflict, with allegations of human rights abuses and crimes against humanity, over the past decade. The country has been under investigation by the ICC, even though it recently withdrew from the Court’s jurisdiction. Rwanda has experienced a multiple terrorism threats since the 1994 genocide. Initially, the government fought major counter-insurgency operations against Hutu groups in Rwanda, as well as two wars in eastern Zaire/DRC against Hutu Power groups who had been using that territory as sanctuary/a base of operations for terrorist attacks into Rwanda. Rwanda still faces a threat posed by the FDLR genocidal militia operating across the border in DRC. Finally, both countries risk political violence associated with national elections, particularly considering the changes in the constitutional law that would allow the president to remain in office after two terms.

24

Chapter 1

Both Burundi and Rwanda have made notable responses to the longstanding domestic ethnic conflict. Both countries have adopted new Consti­ tutions that address the broad issues associated with minority (namely, Tutsi) rights, albeit in different ways. Thus, Burundi’s 2005 Constitution guarantees minority representation and power-sharing in government, while Rwanda’s 2003 Constitution guarantees a range of civil liberties but also prohibits the propagation of ethnic and racial divisionism. Burundi has been experiencing a low-intensity armed conflict, largely associated with President Pierre Nkurunziza’s efforts to remain in office, between the supporters of the Hutu president and the political (largely Tutsi) opposition. Rwanda, on the other hand, has made tremendous progress in overcoming the legacy of ethnic hatred with its rejuvenated judiciary and strong laws on incitement to genocide and divisionism. Nonetheless, both countries experience problems with the arbitrary arrest, transfer and detention of terrorism suspects. While Tanzania is probably the most peaceful country in the EAC, it experiences a terrorism threat from foreign fighters transiting the country, from Islamic groups attacking foreign tourists and diplomatic interests, from domestic groups with political and economic grievances against the govern­ ment, and from a low-level problem involving the country’s small Albino community. And, even though not a direct threat to Tanzania, the country has hosted a large refugee population from Burundi and Rwanda over the past decades, with armed groups using the camps as sanctuary to organize and conduct terrorist attacks back into the countries of origin. Tanzania likely has the strongest and most effective counter-terrorism laws in the EAC. The 2002 Prevention of Terrorism Act, supported by several other statutes, has broad and effective provisions to support the investigation, extradition, and prosecution of criminal suspects. Still, there are several important legal problems that should be addressed. First, the government must find an appropriate means of addressing the Zanzibari demands for political autonomy and with respect to the Union constitutional structure. Second, Tanzania should ratify the 1984 Torture Convention. Third, Tanzania should enact a clear rule on attachment in criminal cases (relating to the rule of double jeopardy), preferably following the American rule with attachment at the swearing of the first witness. Fourth, the Union Constitution, like its Zanzibari counterpart, should explicitly recognize the right to a speedy trial. Finally, this book makes numerous findings and recommendations that apply across the EAC. While the EAC Partner States are generally compliant with international legal obligations with respect to counter-terrorism, certain Partner States should ratify/accede to the 1948 Genocide Convention, the 1966 ICCPR, the 1979 Hostage Taking Convention, the 1984 Torture Convention,

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the 1997 Terrorist Bombing Convention, the 1999 Algiers Convention, the 2002 Terrorism Financing Convention, the 2006 Convention on Enforced Disappearances, and the 2013 Arms Trade Treaty (see Tables 1 and 2, Regional parties to CT/human rights treaties/conventions, infra). In fact, several countries experience problems with small arms and light weapons migrating from the conflict zones in Somalia, Ethiopia, Sudan, and the Democratic Republic of the Congo; thus, enhanced cooperation on the arms trade problem would help law enforcement authorities in combating terrorist groups. The EAC Partner States also experience community-wide gaps in the implementation of UN Security Council Resolutions 1373 and 2178 (see Tables 4-A and 4-B, infra) with respect to border controls, control over identity documents, preventing the transit of foreign terrorist fighters, the exchange of advanced passenger information, and efforts to counter violent extremism. One positive step involves a new community-wide electronic passport. The Partner States also have significant shortcomings in extradition law and practice, with government officials sometimes ignoring established legal process in favor of an expedited and informal “deportation.” Some Partner States also permit unfair practices, such as the trial of civilians before a military court martial proceeding, the lack of a statute of limitations for treason-related offenses, and a double jeopardy rule that works against the defendant. The EAC Partner States could adopt a range of important counter-terrorism legal reforms using the concept of “variable geometry,” permitting some level of variation and experimentation in human rights norms, under the EAC Treaty. First, the EAC Partner States could consider a judicially-supervised and limited regime for investigative detention, like the UK law that permits a person to be held incommunicado for up to 28 days pending an investigation; this can allow the police the time and opportunity to thwart a pending attack and arrest the co-conspirators. But, since some countries—like Burundi and Rwanda—lack a clear rule on habeas corpus, any investigative detention regime should be closely supervised by a judge with clear civil remedies for its abusive. Second, the EAC Partner States should adopt procedures to facilitate greater cooperation during the investigation and prosecution of a terrorism case. The Partner States could consider municipal laws that permit the use of letters rogatory, adopt an East African arrest warrant, and enact a Reciprocal Enforcement of Judgments Act. Finally, the community could adopt a Mutual Legal Assistance Treaty, drawing from international case law and experience of human rights organizations. Such a treaty could enhance the effectiveness of law enforcement operations and ensure sound criminal convictions throughout the community. This book identifies multiple specific issues that should be addressed in any such treaty.

Chapter 2

A Normative Framework for Counterterrorism Law in the EAC 2.1

Introduction: a Counterterrorism Framework for the EAC

The EAC Partner States require a comprehensive set of laws that address the modern terrorist threat, whether this threat emanates from or has connections to foreign terrorist organizations with increased capacity, often through access to funding, specialized expertise, weapons, personnel, training camps or operational support, or from less capable domestic organized groups and individuals. Some nations, such as Rwanda with its hate speech laws, may have unique laws based upon a need to overcome past problems. In any case, whether a nation has a single, comprehensive counterterrorism statute or a series of separate acts, the constitutional and statutory framework must comply with a range of international legal obligations. This chapter provides an international law framework for the country-by-country analysis of counterterrorism law and practice covered in subsequent chapters. First, the East African nations must meet all treaty obligations that relate to counterterrorism.1 In some cases, nations may have acceded to or ratified some international instruments but not others. In fact, there are important gaps: Kenya is a non-party to the 1948 Genocide Convention, Rwanda is a nonparty to the 2006 Convention on Enforced Disappearances, South Sudan is non-party to most human rights conventions, and Tanzania is a non-party to the 1984 Torture Convention. Moreover, the fact that a nation has acceded to or ratified a treaty does not necessarily mean that it has also adopted the necessary implementing (domesticating) legislation, a point that will be explored later in this book. Second, there are numerous important resolutions passed by the UN Security Council that impose a range of counterterrorism obligations, some specific and some general, on Member States.2 Thus, the Security Council, 1  See tables 1–3, infra (Regional parties to CT/human rights treaties/conventions). This also raises a question about the status of international legal obligations in the constitutional order of the EAC Partner States. 2  See, for example, UNSCR 1267 (The Situation in Afghanistan), S/RES/1267, adopted Oct. 15, 1999 (designating Osama bin Laden and his associates as terrorists and establishing a sanctions regime to cover individuals and entities associated with al-Qaida, bin Laden and/

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004389892_003

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acting under its Chapter VII authority, established a general framework on counterterrorism when it adopted UNSCR 1373 following the 9/11 attacks on the United States. This UNSCR outlined specific obligations for Member States under Chapter VII, to include preventing and suppressing terrorist financing, refraining from supporting entities or persons involved in terrorist acts, ensuring that terrorist acts were established as serious criminal offenses under domestic law, cooperating with other States in the prevention and prosecution of cases, and adopting stringent border controls.3 On one hand, a State can establish a “Terrorist Exclusion List,”4 or a list of “Specially Designated Nationals and Blocked Persons,”5 both of which are currently used by the United States and are publicly available. On the other hand, East African nations that use such counterterrorism designations should also have a due process procedure that allows a citizen (or resident non-alien) to challenge his inclusion on such a list, as well as request his delisting.6 Finally, the UNSC or the Taliban wherever located); UNSCR 1373 (Threats to International Peace and Security Caused by Terrorist Acts), S/RES/1373, adopted Sept. 28, 2001 (calling upon all States to share intelligence on terrorist groups in order to combat terrorism and establishing a CounterTerrorism Committee to monitor State compliance with its provisions); UNSCR 1456 (Highlevel Meeting of the Security Council: Combating Terrorism), S/RES/1456, adopted Jan. 20, 2003 (declaring that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular, international human rights, refugee, and humanitarian law”); UNSCR 1624 (pertaining to incitement to commit acts of terrorism and calling upon UN Member States to prevent such conduct and to deny safe haven to such persons), S.C. Res. 1624, U.N. Doc. S/RES/1624 (Sep. 14, 2005); and S.C. Res. 2178, U.N. Doc. S/RES/2178 (Sep. 24, 2014) (pertaining to foreign terrorist fighters). See also table 4-A, infra (Compliance with UN Security Council Resolution 1373, Municipal Legislation), and table 4-B, infra (Compliance with UN Security Council Resolution 2178, Municipal Legislation). 3  S .C. Res. 1373, U.N. Doc. 54/109 (Dec. 9, 1999) (entering into force Apr. 10, 2002) should read as a companion to the International Convention for the Suppression of the Financing of Terrorism. The EAC has recently implemented its own community passport, to include an electronic version, which will facilitate travel by citizens within the five nations. Rajab Ramah, East African Community Closer to Common Passport, Tourism Visa, allAfrica, July 18, 2013, http://allafrica.com/stories/201307190057.html (last visited Sept. 3, 2017). See also Arthur Chatora, East African Community Launches Electronic-Passport for Regional and International Travel, This is Africa, Mar. 2, 2016, https://thisisafrica.me/17130-2/ (last visited Sept. 3, 2017). 4  See, for example, U.S. Department of State, Terrorist Exclusion List, Dec. 29, 2014. 5  See, for example, U.S. Department of the Treasury, Office of Foreign Assets Control, Specially Designated Nationals List (SDN), Jan. 27, 2015. 6  Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (ECJ, 2008) (the European Court of Justice overturned decisions by several countries that had imposed terrorist sanctions against Kadi based upon action by the UN Security Council). See also Douglas Cantwell, A Tale of Two Kadis:

28

Chapter 2

Counter-Terrorism Committee has provided some useful reporting on the progress made by the East African Community pursuant to UNSCR 1373.7 Thus, in its 2016 report, the CTC indicates that States should focus on enacting terrorism-specific legislation, implementing integrated border-management systems, strengthening regional information sharing, improving the control and monitoring of small arms, implementing measures to detect cross-border cash flows, and enhancing efforts to counter violent extremism. The UN Security Council has repeatedly reaffirmed the need for measures to restrict the international travel of foreign terrorist fighters. For example, in UNSCR 1624, the UN Security Council called upon States to adopt measures to prohibit incitement to commit a terrorist act and to deny safe haven to persons with respect to whom there is credible evidence that they have been guilty of such conduct, as well as to strengthen border controls and combat fraudulent travel documents.8 Later, in UNSCR 2178, the UN Security Council reaffirmed the need for States to prevent the movement of foreign terrorists and terrorist groups through effective border controls and controls on the issuance of identity documents, urged States to “intensify and accelerate the exchange of operational information regarding the actions or movements of terrorists or terrorist networks,”9 called upon States to cooperate in efforts aimed at preventing radicalization, and decided that States shall “prevent and suppress the recruiting, organizing, transporting or equipping of individuals”10 who travel internationally for the purpose of supporting or participating in terrorist acts. The path-breaking obligations imposed by the UN Security Council in UNSCRs 1373 and 2178—using its authority under Chapter VII—have imposed    Kadi II, Kadi v. Geithner & U.S. Counterterrorism Finance Efforts, 53 Colum. J. Transnat’l L. 652 (2015) (examining the impact of Kadi’s legal challenges from the perspective of U.S. counterterrorism policy). 7   Counter-Terrorism Committee Executive Directorate, UNSC Counter-Terrorism Committee, “Global Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States—2016,” https://www.un.org/sc/ctc/blog/document/global -survey-of-the-implementation-of-security-council-resolution-1373-2001-by-member -states-2016/ (last visited Aug. 10, 2017). 8  U NSCR 1624, supra n.2, paras. 1–2. See also Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (2017) (surveying the issues with respect to illicit speech and core international crimes such as genocide, crimes against humanity, and war crimes). 9  U NSCR 2178 (calling upon States to prevent and suppress the recruiting, organizing, transporting or equipping of individuals involved in international terrorism), S/RES/2178, adopted Sept. 24, 2014, para. 3. 10  Id. para. 5.

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an important set of legal obligations upon the Member States.11 Thus, the binding measures do not require state-level ratification, as would be true with an international treaty, but are immediately binding upon States. Neither UNSCR explicitly defined terrorism, thereby permitting flexible application at statelevel with respect to unique threats, security requirements and legal cultures. But, UNSCRs 1456 and 2178 did fill a gap in the counterterrorism obligations imposed upon Member States that had been left in UNSCR 1373: UNSCRs 1456 and 2178 both require explicit compliance with international human rights, refugee, and humanitarian law.12 Nonetheless, this does not eliminate the need for state-level implementing legislation, particularly since neither UNSCR provided for any procedural safeguards or delisting procedures with respect to individuals who are subject to travel restrictions or asset freezes. In any case, it is important to examine State compliance with UNSC measures, both through State reporting to and assessments by the UNSC Counter-Terrorism Committee13 and in terms of national legislation to criminalize the full range of appropriate terrorism offenses.14 Third, there are a range of obligations under international law that—while not specific to counterterrorism—can facilitate the investigation and prosecution of many terrorism offenses.15 On one hand, a State may have criminal statutes that proscribe bribery, illicit enrichment and money laundering, offenses that are often committed by terrorists through public officials to facilitate various operational acts. Indeed, the successful investigation and prosecution of such offenses could greatly undermine the economic support structures and processes that help create the enabling environment for terrorist activity. 11  C  ompare Charter of the United Nations, art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”), with art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”). 12  See also Myriam Feinberg, Sovereignty in the Age of Global Terrorism: The Role of International Organisations 62–66 (2016). Economic and Social Council, Commission on Human Rights, Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, U.N. Doc. E/CN.4/2005/103 (Feb. 7, 2005), at 6, 21. 13  See, for example, Security Council Counter Terrorism Committee Executive Directorate, Global Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States, U.N. Doc. S/2016/49 (Jan. 20, 2016), available at: https://www.un.org/sc/ ctc/resources/assessments/ (last visited June 13, 2017). 14  See generally Feinberg, Sovereignty in the Age of Global Terrorism, supra n.12, at 33–71. 15  See table 5-A, infra (Anti-corruption and money laundering conventions).

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Chapter 2

In fact, corruption presents a two-fold problem for the State; corruption undermines the rule of law and the provision of state services to the people who most need it, and it can also increase animosity on the part of aggrieved persons towards the government and provide a recruiting tool for terrorist organizations. On the other hand, some States have adopted laws that promote citizen involvement in government in ways that can help root out corruption. Here, a State may have laws that requires government officials to file income and asset declarations,16 that permit citizens to request information from the government (i.e., a freedom of information statute),17 or that ensure citizens who expose wrongdoing are accorded witness protection.18 Some countries have also joined voluntary networks, such as the Egmont Group19 or the 16  C  ompare UN Convention Against Corruption, art. 8(5) (each State Party committing itself to “establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials”), with African Union Convention on Preventing and Combating Corruption, art. 7 (Fight Against Corruption and Related Offenses in the Public Service). See also table 5-A, infra (Anti-corruption and money laundering conventions). See generally Nsongurua J. Udombana, Fighting Corruption Seriously? Africa’s Anti-Corruption Convention, 7 Sing. J. Int’l & Comp. L. 447 (2003) (providing an overview of the AU Convention and highlighting a range of needed anticorruption strategies on the continent). 17  Compare UN Convention Against Corruption, art. 10 (enhancing transparency in public administration by adopting “procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public”), with African Union Convention on Preventing and Combating Corruption, art. 9 (Access to Information), entered into force Aug. 5, 2006, https://www.au.int/web/ en/treaties/african-union-convention-preventing-and-combating-corruption (last visited June 18, 2017). See also Shaazka Beyerle, Curtailing Corruption: People Power for Accountability and Justice 211 (2014) (noting the Kenyan freedom of information law and its impact on the fight against corruption). 18  Compare UN Convention Against Corruption, art. 13(2) (obligating State Parties to provide for anonymous public reporting to anti-corruption bodies), African Union Convention on Preventing and Combating Corruption, art. 5(5) (the State Parties agreed to “[a]dopt legislative and other measures to protect informants and witnesses in corruption and related offences, including protection of their identities”). See also table 5-A, infra (AntiCorruption and Money Laundering Conventions). 19  Egmont Group, https://egmontgroup.org/ (last visited June 12, 2017). According to its website, the Egmont group is “an informal network of [financial intelligence units] for the stimulation of international co-operation” in the fight against money laundering and the financing of terrorism. See also Egmont Group, Combating Money Laundering Terrorist Financing (Annual Report 2015–16) (available at the Egmont website).

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Financial Action Task Force (FATF),20 to facilitate greater cooperation (e.g., law enforcement liaison, the exchange of information, and the sharing of skills and capabilities) in the investigation and prosecution of money laundering cases. One potential obstacle to effective law enforcement might, however, be the existence of municipal laws that shield public officials for any offenses committed while in office. Nonetheless, while EAC States have been under no legal obligation to join either the Egmont Group or the FATF, the overall lack of EAC participation raises questions about the effectiveness of regional cooperation in money laundering cases. Fourth, domestic law, which must itself comply with the basic requirements of international human rights law, can use either a comprehensive counterterrorism statute or criminalize a range of constitutive acts that are involved in terrorist activities. Thus, States may criminalize inchoate acts, involving accessory to criminal acts, advocacy/incitement to terrorism, aiding and abetting, or conspiracy, as well as substantive crimes, such as weapons registration, possession of explosives/component materials, arson, assault, 20   According to its website, the FATF is an independent “inter-governmental body established in 1989 by the Ministers of its Member jurisdictions. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system.” The FATF has, for example, published a 2012 set of 40 recommendations that can be used—as a set of best practices that could be adopted as a legislative model—by countries in the fight against money laundering, terrorist financing, and the financing of the proliferation of weapons of mass destruction. FATF/OECD, International Standards on Combating Money Laundering and The Financing of Terrorism & Proliferation: The FATF Recommendations, Feb. 2012 (Nov. 2017), available at: http://www.fatf-gafi.org/publications/fatfrecommendations/ documents/fatf-recommendations.html (last visited Dec. 20, 2017). The FATF has also published Special Recommendations with respect to terrorist financing, “which, when combined with the FATF Forty Recommendations on money laundering, set out the basic framework to detect, prevent and suppress the financing of terrorism and terrorist acts.” FATF/OECD, FATF IX Special Recommendations, October 2001, http://www.fatf-gafi .org/publications/fatfrecommendations/documents/ixspecialrecommendations.html (last visited Dec. 20, 2017). Subsequently, in 2013, the FATF/OECD published a useful set of international best practices covering authorities and procedures for identifying and designating persons or entities, due process procedures, and certain post-designation issues. FATF/OECD, Targeted Financial Sanctions Related to Terrorism and Terrorist Financing (Recommendation 6), available at http://www.fatf-gafi.org/documents/ documents/bpp-finsanctions-tf-r6.html (last visited Dec. 20, 2017). In sum, the work of the FATF could be considered as “soft law,” that while non-binding, “enjoy a general international consensus.” Anna Gardella, Fighting the Financing of Terrorism: Judicial Cooperation, in Enforcing International Law Norms Against Terrorism (436 (Andrea Bianchi, ed., Hart Publishing, 2004).

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theft, robbery, kidnapping for ransom or murder. In fact, there is considerable preventive value in the criminalization of certain inchoate acts, such as advocacy/incitement to terrorism, in that it permits early intervention by law enforcement officials who are confronted with credible threats. Also, a nation might also have specialized statutes relating to investigations using electronic surveillance, specialized rules of evidence that support counterterrorism prosecutions, or laws allowing judicially-approved incommunicado detention for short periods after arrest.21 A nation might also criminalize material support to terrorists and certain designated foreign terrorist organizations that pose a threat to the East African Community. In fact, given that terrorism groups often raise funds through legal (e.g., charitable donations) and illegal (e.g., criminal proceeds) means, a material support to terrorism statute, much like that used in the United States,22 could serve as a useful complement to money laundering statutes. Next, each nation should have domestic laws that facilitate a range of mutual legal assistance activities associated with the investigation and prosecution of transnational crimes, to include extradition laws. At the regional level, the International Conference on the Great Lakes Region (ICGLR) has adopted a thorough and legally binding framework agreement with its 2006 Protocol on Judicial Cooperation, albeit with unclear domestication in the EAC Member States; some EAC countries also have overlapping bilateral legal assistance treaties.23 21   Dan E. Stigall, Counterterrorism and the Comparative Law of Investigative Detention (2009) (examining the controversial practice of investigative detention as a counterterrorism tool in a post-September 11th world). 22  See, for example, 18 U.S. Code § 2339A (Providing material support to terrorists), and 18 U.S. Code § 2339B (Providing material support or resources to designated foreign terrorist organizations). Both statutes have been applied to a wide range of otherwise legal support—to include volunteering one’s own person—to terrorist organizations. See also Jeffrey Breinholt, The Revolution of Substantive Criminal Counterterrorism Law: “Material Support” and Its Philosophical Underpinnings in The Law of Counterterrorism 91–96 (Lynne K. Zusman, ed., 2012). 23  International Conference on the Great Lakes Region, Protocol on Judicial Cooperation, Dec. 1, 2006, http://www.icglr.org/index.php/en/the-pact (last visited Jan. 21, 2018). This protocol, joined by all six EAC Member States, provides a detailed legal framework for the extradition of suspects in criminal cases involving a prison sentence of six months or more; in addition, the protocol also provides for joint investigation commissions to facilitate investigations, prosecutions, and the sharing of information. See also ICTJ, “Regional Judicial Cooperation in the Fight against Impunity for International Crimes: Analysis of National Regulatory Systems and Internal Procedures in View of the Protocol on Judicial Cooperation,” conference report, Kinshasa, Mar. 15–16, 2016, https://www .ictj.org/sites/default/files/JudicialCooperation_GreatLakes_ConfReport_ENG.pdf (last

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In any case, municipal law must be interpreted and enforced by an independent judiciary free from political independence.24 Fifth, each nation must consider the possible application of international humanitarian law in cases involving domestic unrest or a deployment abroad. Some domestic disturbances will remain below the ill-defined threshold of non-international armed conflict, demanding the application of international human rights law—as difficult as it may seem against certain violent armed groups.25 On the other hand, some domestic disturbances—based upon the severity and extent of that unrest—will cross the threshold into international humanitarian law. Here, each nation will require constitutional provisions and statutory law regarding non-derogable rights during a national emergency, to include parliamentary and judicial oversight over executive actions; laws regarding the suspension of the right of habeas corpus; laws domesticating the 1949 Geneva Conventions and the 1977 Additional Protocols, insuring both personal and subject matter jurisdiction over the accused; and laws regulating the military forces, either operating at home or abroad on a peacekeeping mission,26 to include the conditions under which civilians can be subject to military law. visited Jan. 21, 2018). By comparison, the Economic Community of West African States (ECOWAS) has adopted a Convention On Mutual Assistance In Criminal Matters (A/P.1/7/92) (covering a range of topics to include evidentiary matters, the forfeiture of the proceeds of a crime, the transfer of proceedings and costs), as well as a Convention on Extradition (A/P.1/8/94) (establishing certain extradition principles, to include the non-use of extradition for political purposes). The ECOWAS Documentation on-line, http://documentation.ecowas.int/legal-documents/protocols (last visited July 19, 2017). The ECOWAS Conventions could be used as models for similar EAC efforts. 24  Office of the High Commissioner for Human Rights, Basic Principles on the Independence of the Judiciary (endorsed by UNGA resolutions 40/32 of Nov. 29, 1985, and 40/146 of Dec. 13, 1985). 25  See table 6, infra (Major regional non-international armed conflicts). 26  See table 7, infra (East African participation in regional PKO). The UN Secretary General has also issued guidelines regarding the conduct of peacekeeping troops, as a well as a 2007 model Status of Forces Agreement for use by troop contributing countries. See, for example, S.C. Res. 2272, U.N. Doc. S/RES/2272 (Mar. 11, 2016) (involving proper conduct by, and discipline over, personnel deployed in UN peacekeeping operations). Article 1 “[e]ndorses the decision of the Secretary-General to repatriate a particular military unit or formed police unit of a contingent when there is credible evidence of widespread or systemic sexual exploitation and abuse by that unit….” See also University of Essex School of Law, UN Peacekeeping and the Model Status of Forces Agreement: Experts’ Workshop (2011), http://www.essex.ac.uk/plrp/documents/model_sofa_experts’_workshop_march_ 2011.pdf (last visited June 14, 2017) (reviewing the 1990 model agreement and examining

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Finally, the reader should note the status of international law within each national legal system. Kenya has a dualist system; its 2010 Constitution provides that the “general rules of international law shall form part of the law of Kenya,”27 and that the “State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms.”28 Uganda has a dualist system; its 1995 Constitution provides: 1. The President or a person authorised by the President may make treaties, conventions, agreements, or other arrangements between Uganda and any other country or between Uganda and any inter­ national organisation or body, in respect of any matter. 2. Parliament shall make laws to govern ratification of treaties, con­ ventions, agreements or other arrangements made under clause (1) of this article.29 Burundi is the only regional country with a legal monist system; this means that ratified treaties take precedence over national law—without requiring further parliamentary action, allowing the judiciary to make direct application of such international human rights norms. In fact, its 2005 Constitution provides that “the Universal Declaration of Human Rights, the International Pacts related to human rights, the African Charter of human and community rights, the Convention on the elimination of all forms of discrimination at towards women and the Convention related to children’s rights are an integral part of the Constitution of the Republic of Burundi.”30 Rwanda has a dualist system, requiring approval of most international agreements by parliament; its 2003 Constitution provides that “international treaties and agreements concerning armistice, peace, commerce, accession to international organisations, those whether it still reflected current operational requirements and whether an update was needed). 27   C onst. of Kenya, 2010, art. 2(5). See also Nicholas Wasonga Orago, The 2010 Kenyan Constitution and the Hierarchical Place of International Law in the Kenyan Domestic Legal System: A Comparative Perspective, 13 Afr. Hum. Rts. L. J. 415 (2013) (examining how Kenya’s 2010 Constitution has given international law a more prominent role in the domestic legal system through a provision that directly incorporates ratified treaty law, but without clarifying its status in the domestic hierarchy, as a legitimate source of law). 28  Id. art. 21(4). 29   C onst. of Rep. of Uganda (1995), art. 123. 30   Post-Trans. Inter. Const. of REP. of Burundi, promulgated by Law No. 1/018 of Oct. 20, 2004, art. 19.

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which commit state finances, those requiring modification of national legislation or relating to the status of persons can only be ratified after approval by Parliament.”31 Tanzania also has a dualist system; treaties and other international obligations require parliamentary approval.32 Thus, while each EAC Partner State may assume legal obligations with respect to counterterrorism based upon a signed international agreement, often making strong political statements in the process, the status of each agreement varies considerably on a country-by-country basis depending upon whether the passage of municipal legislation is required. 2.2

International Human Rights Law

In general terms, international human rights law is regulated by two primary human rights instruments, namely the 1948 Universal Declaration of Human Rights (UDHR)33 and the 1966 International Covenant on Civil and Political Rights (ICCPR), as well as numerous separate conventions.34 Some multilateral treaties, such the 1979 Hostage Taking Convention,35 the 1984 31   C onst. of Rep. of Rwanda (2003), art. 167, cl. 2. 32   C onst. of the U. Rep. of Tanzania (2005), art. 63(3). However, Zanzibar has substantial autonomy under the Union Constitution; the 1984 Zanzibari Constitution, art. 132(1), provides that “No law enacted by the Union Parliament shall apply to Zanzibar unless that law relates to Union affairs only and having complied with the provisions of the Union Constitution.” This means that some Tanzanian obligations under international law could require domestication by both the Union and the Zanzibari government. Const. of Zanzibar (rev. ed. 2006). 33   G.A. Res. 217, Universal Declaration of Human Rights, U.N. Doc. 217 A (III) (Dec. 10, 1948), available at: http://www.refworld.org/docid/3ae6b3712c.html (last visited Nov. 2, 2017). See also M. Cherif Bassiouni, The Future of Human Rights in the Age of Globalization, 40 Denv. J. Int’l L. & Pol’y 22 (Spring 2012) (concluding that while the UDHR was originally declaratory, it has subsequently become part of customary international law). 34   T he International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entered into force on Mar. 23, 1976. Five EAC Partner States have acceded to the ICCPR, each without any reservations: Burundi (Aug. 9, 1990), Kenya (Mar. 23, 1976), Rwanda (Mar. 27, 1976), Tanzania (Sept. 11, 1976) and Uganda (Sept. 21, 1995); South Sudan is a not a state party to the ICCPR. UN Treaty Collection, https:// treaties.un.org/ (last visited Oct. 25, 2017). 35   I nternational Convention against the Taking of Hostages (adopted by the UN General Assembly on Dec. 17, 1979). All EAC Partner States, except for Burundi and South Sudan, have acceded to or ratified this convention. See table 1, infra.

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Torture Convention,36 the 1997 Terrorist Bombings Convention,37 the 2002 Terrorism Financing Convention,38 and the 2006 Convention on Enforced Disappearances,39 impose specific obligations on State Parties with respect to certain types of violence used by terrorists. Some human rights conventions, such as the 1951 Refugee Convention40 and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women,41 have particular 36   C onvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S 85 (entered into force June 26, 1987). Except for Tanzania, all EAC Partner States have acceded to the 1984 Torture Convention, each without any reservations: Burundi (Feb. 18, 1993), Kenya (Feb. 21, 1997), Rwanda (Dec. 15, 2008), and Uganda (Nov. 3, 1986). Only Burundi, Rwanda, and South Sudan have acceded to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Oct. 18, 2013) (the protocol establishes an international inspection system for places of detention). UN Treaty Collection, https://treaties.un.org/ (last visited Oct. 25, 2017). But see Amnesty International, “Just Tell Me What to Confess to,” AFR 16/2298/2015, Aug. 24. 2015 (reporting that torture and human rights abuses by the Burundian national police and intelligence service have been on the rise since April 2015). According to one human rights expert, the Tanzanian Constitution prohibits torture, but there is no provision in the Tanzanian criminal code that proscribes such acts, making it difficult to hold abusers accountable. Neela Ghoshal, Tanzania’s Victims of Torture, Think Africa Press, June 26, 2013, https://www.hrw.org/news/2013/06/26/tanzanias-victims-torture (last visited July 19, 2017). See also Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), adopted by the African Commission in 2002 (calling on African States to criminalize torture and to “ensure no one is expelled or extradited to a country where he or she is at risk of being subjected to torture”). 37  Four EAC Partner States, with the exception of Burundi and South Sudan, are parties to the International Convention for the Suppression of Terrorist Bombings, all without reservation or objection: Burundi signed on Mar. 4, 1998, but has not yet ratified; Kenya acceded on Nov. 16, 2001; Rwanda acceded on May 13, 2002; Tanzania acceded on Jan. 22, 2003, and Uganda ratified on Nov. 5, 2003. UN Treaty Collection, https:// treaties.un.org/ (last visited Sept. 14, 2015). 38   I nternational Convention for the Suppression of the Financing of Terrorism (adopted by the UN General Assembly in resolution 54/109 of Dec. 9, 1999, and entered into force on Apr. 10, 2002). See table 2, infra. 39   I nternational Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), entered into force Dec. 23, 2010. See table 2, infra. 40   C onvention relating to the Status of Refugees, July 28, 1951 (entered into force Apr. 22, 1954), UN Treaty Collection, URL: http://legal.un.org/avl/ha/cppcg/ cppcg.html (accessed Apr. 12, 2018). This convention has been ratified by Burundi (Oct. 17, 1963), Kenya (Aug. 14, 1966), Rwanda (Apr. 2, 1980), Tanzania (Aug. 10, 1964), and Uganda (Dec. 26, 1976), but not the newly independent Republic of South Sudan. 41   C onvention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979 (entered into force Sept. 3, 1981), UN Treaty Collection, URL:

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relevance for conflict on the African continent. Two operative regional instruments, the binding 1999 Organization of African Unity (OAU) Convention on the Prevention and Combating of Terrorism (the Algiers Convention)42 and the African Court on Human and Peoples’ Rights (the African Human Rights Court) that complements the protective mandate of the African Commission on Human and Peoples’ Rights (the African Commission) by issuing binding decisions on human rights violations, also impose important counterterrorism

http://legal.un.org/avl/ha/cppcg/cppcg.html (accessed Apr. 12, 2018). This convention has been ratified by Burundi (Feb. 7, 1992), Kenya (Apr. 8, 1984), Rwanda (Sept. 3, 1981), South Sudan (accession, May 30, 2015), Tanzania (Aug. 21, 1985), and Uganda (Sept. 19, 1985). 42  The OAU/AU has adopted five instruments bearing on counter-terrorism and extradition obligations. First, the 1999 OAU Convention on the Prevention and Combating of Terrorism (the Algiers Convention) obligates Member States, inter alia, to review their domestic laws and establish criminal offenses for enumerated terrorist acts, and to expand cooperation in measures aimed at preventing and combating terrorism. In particular, the Algiers Convention commits its Members to extradite persons charged with or having been convicted of a terrorist act on the territory of another State Party. Five EAC Partner States have ratified or acceded to this convention: Burundi (Nov. 4, 2003), Kenya (Nov. 28, 2001), Rwanda (Apr. 29, 2002), Tanzania (Mar. 9, 2003), and Uganda (Oct. 17, 2003); South Sudan signed this treaty on Jan. 24, 2013. OAU Convention on the Prevention and Combating of Terrorism, adopted by the 35th Ordinary Session of the Assembly of Heads of State and Government in Algiers, Algeria, in July 1999, Decision AHG/Dec. 132 (XXXV) and entered into force on Dec. 6, 2002. Second, the 2002 AU Plan of Action on the Prevention and Combating of Terrorism in Africa, adopted in Algiers on Sept. 11–14, 2002, obligates State Parties to adopt a range of specific provisions to promote greater international cooperation in preventing and combating terrorism. For example, the Plan of Action calls for Member States to harmonize national laws, to conclude extradition and mutual legal assistance agreements, and to review and streamline existing extradition procedures. Third, the AU adopted a 2004 Protocol to the Algiers Convention that was intended to update the convention in view of evolving forms of terrorism. This protocol also reviewed the complementary role of regional counterterrorism mechanisms. Under Article 8, the protocol provides that: “The Convention shall constitute an adequate legal basis for extradition for State Parties that do not have extradition arrangements.” While this protocol has been signed by five EAC Partner States, it has not entered into force. African Union, OAO/AU Treaties, Conventions, Protocols & Charters, http://au.int/en/treaties (last visited Nov. 1, 2015). Fourth, in October 2001, the AU adopted a Dakar Declaration against Terrorism, as an additional protocol to the convention; the declaration recognized, in part, “the growing threat of terrorism in the continent and the growing linkages between terrorism, drug trafficking, transnational organized crimes, money laundering, and the illicit proliferation of small arms and light weapons.” This declaration has not, however, entered into force. AU, “The African Union Counter Terrorism Framework,” (last updated Nov. 23, 2015), http://www.peaceau.org/ en/page/64-counter-terrorism-ct (last visited June 12, 2017). Last, in 2011 the AU has also developed an African Model Law on Anti-Terrorism. Id.

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obligations on the EAC Partner States.43 While non-binding, the 2011 African Model Anti-Terrorism Law provides a useful basis of comparison between individual State practice and evolving continental legal opinion. Some bilateral tools, such as the extradition or transfer of criminal suspects between nations, have been commonly used in terrorism cases. Indeed, the transfer of an accused terrorist from one nation to another raises important human rights issues, to include due process of law and freedom from coercive interrogation, conflicts of law between nations (i.e., one nation respecting the rights of a foreign sovereign), the potential of political abuse in relation to asylum law (i.e., the non-refoulement obligation),44 and government accountability (i.e., the non-use of secret means and methods). 43  There are at least three more pending initiatives that could bring about significant legal reform on the continent and would allow for a broader approach to the investigation and prosecution of terrorists. First, there is the 2009 Protocol of the Court of Justice of the African Union that would create a Court with jurisdiction over the AU Constitutive Act and other legal instruments, but only 16 African nations (including only Rwanda and Tanzania in the EAC) have ratified this Protocol and the Court has not been operationalized. Second, there is the 2008 Protocol on the Statute of the African Court of Justice and Human Rights, but only five African States (none in the EAC) have ratified this Protocol and it has not yet come into force. If this latter Court were to be operationalized, it would merge both the African Human Rights Court and the African Court of Justice. Third, there is the 2014 Malabo Protocol that would extend the jurisdiction of this new Court to include crimes under international law and a range of crimes that would be useful in the counterterrorism fight. In fact, the Malabo Protocol creates several unique crimes under international law, such as the crimes of unconstitutional change of government (art. 28E), piracy (art. 28F), terrorism (28G), mercenarism (28H), corruption (28I), money laundering (28Ibis), trafficking in persons (art. 28IJ), and trafficking in drugs (art. 28K). While at least four African nations have signed the Malabo Protocol, to include Kenya which has had a difficult relationship with the International Criminal Court since it opened investigations into the 2007–08 elections violence in that country, this problematic Protocol is yet to be ratified by any nation. Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court 13–14 (2016) (examining the serious—possibly insurmountable—policy, legal and resourcing challenges associated with the proposed Malabo Protocol). See also The African Criminal Court: A Commentary on the Malabo Protocol 12–14 (Gerhard Werle & Moritz Vormbaum, eds., 2017) (noting that the protocol has not yet come into force). 44   C onvention relating to the Status of Refugees, entered in force Apr. 22, 1954, UN Treaty Collection, https://treaties.un.org/Pages/ViewDetailsII.aspx?src= TREATY&mtdsgno=V-2&chapter=5&Temp=mtdsg2&lang=en (last visited Aug. 29, 2017). Five EAC Partner States have acceded to this convention: Burundi (July 9, 1963), Kenya (May 16, 1966), Rwanda (Jan. 3, 1980), May 12, 1964), and Uganda (Sept. 27, 1976), while South Sudan likely became a party by succession upon its independence in 2011. Article 33(1) provides: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be

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The 1948 UDHR provides an inspirational foundation for modern human rights law and is widely applicable to a range of government actions in counterterrorism cases. The UDHR recognizes broad principles of human rights law such as universal rights and freedoms, to include a right to life, liberty and the security of the person; a prohibition against torture and other cruel inhuman or degrading treatment; equal protection before the law; a right to an effective remedy by competent national tribunals; a freedom from arbitrary arrest or seizure; and a fair and public hearing for any criminal charges. The basic principles and concepts embodied in the UDHR have been reiterated in numerous international human rights treaties, declarations, and resolutions over the last 70 years. The 1966 ICCPR, as well as the 1966 (first) Optional Protocol to the ICCPR,45 commits its parties to respect the civil and political rights of individuals, including the right to life, and rights to due process and a fair trial.46 Article 4 permits States Parties, when faced with a “public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” to take certain measures derogations from their obligations under the Covenant.47 Article 7 recognizes an absolute right to freedom from torture.48 Article 15 enshrines the core principle of legality, which requires that national laws be clear and accessible, such that their application in practice can be reasonable foreseeable. The ICCPR does not address the transfer or threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” See also Convention against Torture and Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Dec. 10, 1984, 1465 U.N.T.S 85 (entered into force June 26, 1987), art. 3. According to the UN High Commissioner for Human Rights, as of Oct. 1, 2017, Uganda has received over 1 million refugees from South Sudan since Dec. 15, 2013. UNHCR, South Sudan Situation, https:// data.unhcr.org/SouthSudan/country.php?id=229 (last visited Nov. 2, 2017). 45  Optional Protocol to the International Covenant on Civil and Political Rights. Of the six EAC Partner States, only Uganda has acceded to this treaty (Nov. 14, 1995). UN Treaty Collection, https://treaties.un.org/ (last visited Oct. 25, 2017). 46  See also Human Rights Council (ICCPR), “General Comment No. 32: Article 14 (Right to Equality before Courts and Tribunals and to a Fair Trial),” CCPR/C/GC/32, Aug. 23, 2007 (explaining that “the right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law.”). 47  States have broad—but not unfettered—discretion to invoke a state of emergency. Enforcing International Law Norms Against Terrorism (Andrea Bianchi, ed., 2004) (examining state practice with respect to a state of emergency), at 519–525. 48  See also UN Human Rights Committee (ICCPR), General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), A/44/40, Mar. 10, 1992 (recognizing that the text of article 7 allows no limitation and affirming that derogations are not permitted during a national emergency).

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extradition of suspects between nations. The first protocol vests the Human Rights Committee, established under Article 28 of the ICCPR, with jurisdiction to hear complaints from persons claiming to be victims of violations under the Covenant. Article 5(b) requires that individuals first exhaust all domestic remedies, a point that reinforces the primary obligation of State Parties to enforce its prohibitions. The adoption of this protocol by the remaining EAC Partner States would provide enhanced protections to individuals while also respecting national sovereignty. One early counterterrorism convention, no doubt the result of a sensational series of hostage taking incidents in the 1970s, is the 1979 Hostage Taking Convention.49 This convention was established “to develop international cooperation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking hostages as manifestations of international terrorism….”50 This convention defines hostage taking as an act designed to compel a third-party, namely a State, an international organization, a person, or a group of persons, to do or abstain from doing any act as a condition for the release of hostages. This convention compels each State Party to establish prescriptive jurisdiction over certain named offenses, to take alleged offenders into custody, to extradite or prosecute alleged offenders, to cooperate in preventative measures, and to assist in criminal proceedings. However, Article 14 proscribes the use of force in violation of UN Charter 2(4). While this point was raised by several African and Arab States in the wake of the controversial 1976 Israeli raid at Entebbe, it leaves open the question whether such a raid might be justifiable

49  Ben Saul, “The International Convention Against the Taking of Hostages,” Sydney Law School, Legal Studies Research Paper No. 14/15 (Dec. 2014), http://ssrn.com/ abstract=2536150 (last visited June 16, 2017) (examining the contentious negotiating history of the convention, to include an impasse over hostage-taking by liberation movements, with a decision to exclude from the application of the Convention certain hostage-taking in armed conflicts “in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination”). Instead, the State Parties intended that hostage taking by liberation movements would be prosecuted under international humanitarian law in cases where humanitarian law imposes a “prosecute or extradite” (aut dedere aut judicare) obligation. Id. at 3. This creates a substantial gap in the international law obligations of the State Parties in cases involving a terrorist group, unless there is an explicit obligation to prosecute or extradite. 50   I nternational Convention against the Taking of Hostages, G.A. Res. 146 (XXXIV), U.N. GAOR, 34th Sess., Supp. No. 46, at 245, U.N. Doc. A/34/46 (1979), entered into force on June 3, 1983.

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as a self-defense action; namely, one not directed sovereignty or independence of another State.51 A person’s right to freedom from torture is generally considered a nonderogable right, a jus cogens norm, even though it has been one of the most violated human rights in many African countries.52 Initially, the 1985 Torture Convention, Article 3, provides: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”53 Clearly, this article prohibits extradition without assurances from the Requesting State that the person would not be subjected to torture; this article does not, however, prohibit transfers where the person may be subjected to “other cruel, inhuman or degrading treatment or punishment.”54 Here, the Requested State 51  Saul, “The International Convention against the Taking of Hostages,” supra n.49, at 4. 52  Jamil Ddamulira Mujuzi, African States and the Right to Freedom from Torture: An International Perspective, 14 E. Afr. J. Peace & Hum. Rts. 103 (2008) (examining the extent to which African countries have complied with their obligation to put an end to torture and recommending that African countries take their obligations under international human rights law seriously). See also Amnesty International, State of the World’s Human Rights (Report 2014/15) (detailing a range of human rights abuses in each of the six EAC Partner States, to include arbitrary arrest, torture, unlawful detention, and the use of excessive force by law enforcement officials). 53  The Torture Convention, supra n.36. Nonetheless, the OAU Refugee Convention permits expulsion in cases where a refugee “has seriously infringed the purposes and objectives of this convention.” Organisation of African Unity, OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, art. 1(4)(g), adopted on Sept. 10, 1969, by the Assembly of Heads of State and Government and entered into force on June 20, 1974. This is also consistent with the Banjul Charter, art. 12(4), which provides that: “A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.” African Charter on Human and Peoples’ Rights (the Banjul) Charter, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. UN Treaty Collection, https://treaties.un.org/ (last visited Nov. 2, 2017). Clearly, this provides the EAC Partner States with limited authority to expel refugees who are involved, or suspected of involvement, in terrorist activities, on national security grounds, and the Partner States have some discretion in terms of due process procedures that would be accorded to a refugee in such circumstances. 54  Id. This raises a question, not defined in international law, about the contextual adequacy of such assurances made by the Requesting State. One might consider, for example, the seniority and position of the government official making the assurances; the public nature of the assurances and whether there might be media or legal scrutiny if the assurances were violated; any record of past human rights abuses by the Requesting State; and any political consequences that might attend to a violation of the assurances. Thus, in some situations, verbal assurances privately made by a mid-level government official might be adequate, but more might be required in a situation involving a State with a past record of human rights abuses. This is also a problem that could be clarified in the EAC with

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must consider various factors about the Requesting State, such as any history involving “gross, flagrant or mass violations of human rights,” any heightened risk of abuse based upon the nature of the offense (e.g., its political or national security nature), the seniority and position of the official making the assurances, public/non-public nature of the assurances and transfer, the use of an established legal process for the transfer and prosecution, and the right of the accused to an attorney during and after transfer.55 Next, Article 4 obligates the States Parties to enact national legislation that criminalizes torture, attempts to commit torture, and any act that constitutes complicity or participation in torture. While some EAC Partner States have enacted torture statutes,56 a regional multilateral legal assistance treaty could help harmonize the varying national laws, facilitating the transfer of suspects a mutual legal assistance treaty. See UN Human Rights Committee (ICCPR), General Comment 31 to the ICCPR, U.N. Doc. CCPR/C/21/Rev.1/Add. 1326 (May 29, 2004) at para. 12 (the “obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm”). See also In the Balance: The Administration of Justice and National Security in Democracies 171–83 (Christopher K. Penny, ed., 2011) (examining a range of contextual factors that should be considered by the parties to an assurance during the removal of a person who is considered a national security risk). 55  The ICCPR, Article 9 (4), recognizes the English common law right of habeas corpus as a means of challenging the legality of detention. The writ has force and effect in cases where persons are held by government officials without evidence of prior criminal acts and there has been delay in bringing the case before a judge. The ICCPR provides that: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” Both Const. of Rep. of Uganda (1995), Article 23 (9), and the 2010 Const. of Kenya, Article 25, guarantees the right of habeas corpus. Rwanda introduced habeas practice in 2004 with a series of statutory legal reforms, although there is some evidence that there have been shortcomings in its application. Amnesty International, Rwanda: Shrouded in Secrecy, at 22–24 (London, Oct. 2012). Like Rwanda, Tanzania also has a statutory right to habeas corpus under its 1985 Criminal Procedure Act, Article 390(1). The 2005 PostTrans. Inter. Const. of Rep. of Burundi does not provide an explicit guarantee of the right to habeas corpus, although Article 38 recognizes a right of legal process and Article 39 protects against an arbitrary deprivation of liberty. The Burundian Constitution was promulgated by Law No. 1/018 of Oct. 20, 2004, and approved by vote of the Burundian people by referendum of Feb. 28, 2005. The Constitution entered into force on Mar. 18, 2005. 56  Uganda has, for example, enacted The Prevention and Prohibition of Torture Act, 2012, a statute that effectively domesticates Uganda’s international law obligations under The Torture Convention, supra n.36.

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for the purposes of a fair trial. Articles 7 and 8 further obligates the Partner States, “under whose jurisdiction a person alleged to have committed [any acts of torture, as well as conspiracy to commit the crime] is found,”57 to prosecute or extradite such persons. Finally, the Torture Convention obligates the State Parties to cooperate in criminal and civil proceedings, both to guarantee fair treatment for the accused and to ensure that the victims of torture have an “enforceable right to fair and adequate compensation” for damages.58 This raises an important issue regarding testimonial statements taken in one jurisdiction and later used against the defendant in the Requesting State. Article 17 provides: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”59 In general terms, the Torture Convention seeks criminalize acts of torture by government officials60 and also ensure that other persons are not subjected to torture upon extradition from one State to another. A regional mutual legal assistance treaty would, in such cases, help EAC Partner States coordinate their law enforcement efforts in terms of ensuring that the right persons are taken into custody, and are detained, transferred and prosecuted under conditions that ensure a respect for their human rights. The 1997 Terrorist Bombings Convention was designed to “enhance international cooperation between States in devising and adopting effective and practical measures for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators.”61 Like the earlier 1979 Hostage Taking Convention, this convention compels each State Party to establish prescriptive jurisdiction over certain named offenses, to cooperate in adopting effective measures to prevent such acts of terrorism, to extradite or prosecute alleged offenders, and to assist in criminal proceedings. This convention provides some useful definitions for phrases such as a “State or government facility,” “explosive of other lethal devices,” “military forces of a State, but it does not define words like terrorism or terrorist. 57  The Torture Convention, supra n.36. 58  Id. art. 14(1). 59  Id. art. 15. 60  Id. art. 1(1) indicates that torture refers to intentional acts by which severe pain or suffering “is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 61  G.A. Res. 37517, International Convention for the Suppression of Terrorist Bombings (Dec. 15, 1997), http://www.refworld.org/docid/3dda06ddc.html (last visited June 16, 2017).

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The 2002 Terrorism Financing Convention is an instrument that actually predates the 9/11 terrorist attacks against the United States; it was adopted by the UN General Assembly on December 9, 1999, in recognition about “the worldwide escalation of acts of terrorism in all its forms and manifestations….”62 Article 2 explained that a person commits a proscribed act within the meaning of this Convention in cases where a person “provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out” (a) acts defined in one of the nine international instruments listed in an annex, as well as “(b) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part [in an armed conflict], when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing an act.”63 Thus, this convention criminalizes a broad range of acts with the explicit aim to protect civilians; it was an important step forward in the international counter-terrorism fight. This Convention proscribes accomplice liability and two forms of criminal facilitation (i.e., organizing/directing others to commit an offense and the making of contributions to the commission of an offense “by a group of persons acting with a common purpose”).64 The Convention also outlines a set of principles supporting the assertion of criminal jurisdiction; calls for appropriate measures for identification, detection and freezing/seizure of funds used/allocated for committing proscribed offenses; establishes a set of principles and procedures to support extradition, to include an “extradite or prosecute” obligation; and requires the State Parties to afford one another “the greatest measure of assistance” in the investigation and prosecution of criminal suspects.65 Thus, this Convention provides a useful means to combat a broad range of acts that often facilitate terrorism, such as the money laundering66 62   I nternational Convention for the Suppression of the Financing of Terrorism (adopted by the UN General Assembly in resolution 54/109 of Dec. 9, 1999, and entered into force on Apr. 10, 2002). 63  Id. art. 2(1). 64  Id. art. 5(b–c). 65  Id. art. 12(1). Article 12(2) also provides that “States Parties may not refuse a request for mutual legal assistance on the ground of bank secrecy.” 66  Money laundering can be defined as “depositing and transferring money or other proceeds of illegal activities; it is an act of legitimising proceeds of illegal activities.” Udombana, Fighting Corruption Seriously? Africa’s Anti-Corruption Convention, supra n.16, at 462 (2003). Terrorist groups can engage in a range of illegal activities to generate money and then use the laundered funds to support a range of terrorist operations. Statutes proscribing the provision of funds (i.e., material support) to terrorist organizations

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associated with illicit arms trafficking, drug dealing and racketeering, and the exploitation of persons. The 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) imposed a non-derogable duty on State Parties to refrain from enforced disappearances,67 a practice the Convention defines as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State….”68 This international treaty, signed but not yet ratified by four EAC States (not including Rwanda), has particular salience in counterterrorism law and practice in that certain persons—particularly foreign nationals accused of serious crimes against civilians—may not be considered entitled to due process and the equal protection of the law. Like other human rights treaties, the ICPPED calls for State Parties to criminalize a specific practice with appropriate penalties, taking into account the “extreme seriousness” of the offense; to take the necessary measures to establish jurisdiction when the offense was committed in its territory, when the offender is one of its nationals, and when the disappeared person is one of its nationals; to either extradite or prosecute an accused person; and to afford other State Parties with the greatest measure of mutual legal assistance. Article 17 provides that “No one shall be held in secret detention.”69 Finally, a Committee on Enforced Disappearances is established, as a treaty monitoring body, to carry the functions provided for under the Convention. While this committee has limited authority, it may receive and consider communications, may request that State Parties to provide observation and comments on communications, may request that one typically have a broader reach, such as criminalizing transfers from either legal or illegal sources (e.g., an otherwise humanitarian donation through an Islamic charity). 67   I nternational Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), entered into force Dec. 23, 2010, art. 1(1) (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”). 68  Id. art. 2. 69  See, for example, Human Rights Watch, People Fleeing Somalia War Secretly Detained: Kenya, US and Ethiopia Cooperate in Secret Detentions and Renditions (Mar. 29, 2007, https://www.hrw.org/news/2007/03/29/people-fleeing-somalia-war-secretly-detained (last visited June 17, 2017); Human Rights Watch, Open Secret: Illegal Detention and Torture by the Joint Anti-Terrorism Task Force in Uganda (2009); and UN, Office of the High Commissioner for Human Rights, Torture and Illegal Detention on the Rise in Burundi, Apr. 18, 2016, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=19835&LangID=E (last visited June 17, 2017).

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of its members visit a State Party, and may urgently report on widespread or systematic disappearances to either the UN General Assembly or the Secretary General. In short, the ICPPED, along with its treaty monitoring committee, is an important, but still limited step forward in holding a government accountable for its own excesses in the counterterrorism fight. 2.3

African Human Rights Law

African States also have numerous legal instruments, to include multi-lateral and bilateral agreements, statutes and case law, which impose human rights limitations on State-level counterterrorism law and practice. At the regional level, the 1981 African Charter on Human and Peoples’ Rights (the Banjul Charter) obligates the Member States of the Organization of African Unity (now called the African Union, the AU) to recognize a generalized range of human rights.70 In turn, the African Commission on Human and Peoples’ Rights, along with the 2010 start-up of the African Human Rights Court, provide a comprehensive system for the enforcement of human rights law.71 At the national level, however, there are important gaps in that some EAC Partner States have multilateral and bilateral treaties (e.g., extradition) that apply in counterterrorism cases involving foreign partners, while others do not.72 For example, while four Partner States have extradition statutes, Burundi lacks one. Finally, each partner has faced different extradition problems over the past 20 years, often including allegations of torture and other abusive practices involving prisoners. In overall terms, this leads to a situation that is ripe for 70  The Banjul Charter, supra n.53. See also Abadir M. Ibrahim, Evaluating a Decade of the African Union’s Protection of Human Rights and Democracy: A Post-Tahrir Assessment, 12 Afr. Hum. Rts. L. J. 30 (2012) (examining the African Union’s positive human rights system and analyzing the human rights track record of the Member States). 71  See generally Magnus Killander, Human Rights Developments in the African Union during 2015, 15 Afr. Hum. Rts L. J. 532 (2015); Human Rights Developments in the African Union during 2014, 15 Afr. Hum. Rts. L. J. 537 (2015); Human Rights Developments in the African Union during 2012 and 2013, 14 Afr. Hum. Rts. L. J. 275 (2014). 72  Four EAC Partner States, excepting Burundi and South Sudan, have an obligation to “extradite or prosecute” alleged offenders involved in terrorist bombings in defined public spaces under Article 8 of the International Convention for the Suppression of Terrorist Bombings, supra n.61. This “extradite or prosecute” obligation involving suspects in terrorist bombings likely includes the persons that Uganda suspected in the July 2010 double suicide bombing in Kampala. See generally Xan Rice, Uganda bomb blasts kill at least 74, The Guardian, July 12, 2010, http://www.theguardian.com/world/2010/ jul/12/uganda-kampala-bombs-explosions-attacks (last visited July 19, 2017).

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misunderstanding and abuse, or—as in the case of Omar Awadh—unwanted activism from the East African Court of Justice (EACJ).73 The Banjul Charter provides an important starting point for the EAC Partner States in that it recognizes numerous basic rights, principles and concepts that should be observed in counterterrorism cases. The Charter recognizes a set of rights to include a person’s right to equal protection before the law (Article 3); “to respect for his life and the integrity of his person” (Article 4); “to the respect for the dignity inherent in a human being and to the recognition of his legal status,” to include a ban on torture (Article 5); to liberty and to the security of his person (Article 6); “to have his cause heard” (Article 7); and a range of other civil and political rights.74 Article 7 provides a limited set of due process guarantees, to include a presumption of innocence, a right of defense to include the assistance of an attorney of his choice, and the right to be heard within a reasonable time by an impartial court. Article 7 also bans ex post facto and non-personal punishment (punishment can be imposed only on the offender and not, for example, against an ethnic group). But there are also some important differences between the Banjul Charter and other regional human rights treaties: the Banjul Charter recognizes a greater range of economic, social and cultural rights, such as Articles 16 and 24; it also recognizes a greater range of peoples’ or collective rights, such as Article 19; it emphasizes individual duties, such as Chapter 2 (Articles 27 and 29); and its rights are subject to “claw-back” provisions (cf. the non-derogation

73  Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18 (the Uganda Constitutional Court considered various foreign cases—American, South African, Zimbabwean, and British—before finding that the government did not violate the Uganda Constitution in receiving the suspects from foreign States). See also Omar Awadh & 6 Others vs. Attorney General of Uganda (Appeal), Appeal No. 2 of 2012 Arising from REF No. 4 of 2011, delivered Apr. 15, 2013 (the East African Court of Justice found that the case was time barred under Article 30 (2) of the EAC treaty). See also James Gathii, Mission Creep or a Search for Relevance: the East African Court of Justice’s Human Rights Strategy, 24 Duke J. Comp. & Int’l L. 2 (2013) (arguing that the EACJ has evolved from its limited jurisdictional grant, as well as its institutional weaknesses, through the use of “elastic interpretative methodology” to decide controversial human rights and issue rulings despite resistance from Partner States and the EAC Secretary General). Thus, while there may be merit in the Court’s activist approach to its jurisdiction, there is also considerable value in adopting a protocol that would define the roles and responsibilities of the Partner States and the EACJ on human rights and law enforcement issues. This would enhance the legitimacy of the Court’s expanded role and contribute to greater executive accountability within the EAC. 74  The Banjul Charter, supra n.53.

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clauses in other human rights treaties).75 Indeed, the Banjul Charter is a unique human rights instrument that reflects many African communal values, as independence, unity and solidarity. Finally, the Banjul Charter created the African Commission on Human and Peoples’ Rights,76 which is mandated to promote human rights; to collect documents, undertake studies and research; to formulate principles and rules; to cooperate with other African and international human rights institutions; and to ensure the protection of rights laid down in the Charter. The Commission has, however, had some mixed successes in advancing human rights on the continent.77 The Commission has generally operated confidentially, and although it has recently started publishing its decisions,78 it has been creating a recognizably African human rights jurisprudence. In overall terms, the Banjul Charter provides a basic set of principles and guidelines, but lacks specificity in many areas. The right to a fair trial is incomplete in many respects; it lacks details on criminal law and procedure. In fact, the Charter could be read to permit two types of rendition outside of regular legal process and resulting in the denial of a person’s right to a fair trial. First, it could permit self-help procedures—essentially a kidnapping— in which a government officer travels abroad, obtains physical custody of an accused without a warrant, and then returns with the accused to the home jurisdiction. Second, it could permit situations in which a host government, having determined that the continued presence of an accused within its jurisdiction is not in its best interests, simply conveys the accused to the border where a foreign partner takes custody of him (i.e., the summary expulsion of an 75  Nsongurua J. Udombana, Toward the African Court on Human and Peoples’ Rights: Better Late Than Never, 3 Yale Hum. Rts. and Dev. J. 45, 62 (2000) (explaining that the “clawback provisions permit the routine breach of obligations under the UN Charter “for reasons of public utility or national security and confine many of the Charter’s protections to rights as they are defined and limited by domestic legislation”) (emphasis in original). See also Amos O. Enabule, Incompatibility of National Law with the African Charter on Human and Peoples’ Rights have the Final Say?, 16 Afr. Hum. Rts. L. J. 1, 25–27 (2016) (examining various “claw-back” provisions in the African Charter). 76  The Banjul Charter, supra n.53, Article 30. 77  See Nsongurua J. Udombana, The African Commission on Human and Peoples’ Rights and the Development of Fair Trial Norms in Africa, 6 Afr. Hum. Rts. L. J. 299 (2006) (examining the Commission’s efforts in developing and defending fair trial norms on the continent). See also George Mukundi Wachira, Twenty Years of Elusive Enforcement of the Recommendations of the African Commission on Human and Peoples’ Rights: A Possible Remedy, 6 Afr. Hum. Rts. L. J. 465 (2006) (assessing the performance of the Commission and arguing for a review of the system in an effort to ensure the enforcement of the Commission’s recommendations). 78  Udombana, Toward the African Court on Human and Peoples’ Rights, supra n.75, at 69–70.

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unwanted foreigner). Thus, while the Charter guarantees a person the right to have his case heard before a competent tribunal where he can be represented by counsel, there is nothing to indicate that there is a right of counsel upon arrest, before any interrogation/transfer, or even upon arrival in the foreign country. The 1998 Protocol establishing the African Human Rights Court came into force in 2004.79 According to article 2 of the Protocol, the Court is intended to “complement the protective mandate of the African Commission on Human and Peoples’ Rights … conferred upon it by the African Charter on Human and Peoples’ Rights….” Article 5 provides that the Commission, State Parties, African intergovernmental organizations, NGOs with observer-status before the Commission, and individuals may have access to the Court.80 The Court, with 11 judges working on a part-time basis—excepting only the court president—for the entire continent, is permitted to issue advisory opinions and has subject matter jurisdiction over issues involving the Charter and “other relevant Human Rights instruments ratified by the States concerned.”81 Unlike any other judicial body, advisory opinions can be requested by not only member States and AU organs, as well as by any African NGO that has been recognized by the AU.82 Moreover, the African Court is empowered to apply any human rights instrument that has been ratified by all the States concerned,83 making it a potentially potent tool for advancing human rights on the continent and protecting the legal rights of persons accused of terrorism offenses.

79  African Commission on Human and Peoples’ Rights, Legal Instruments, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, adopted on June 10, 1998, entered into force Jan. 25, 2004, http://www.achpr.org/instruments/ (last visited June 21, 2017). 80  Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, June 9, 1998, available at: http:// www.achpr.org/instruments/court-establishment/ (last visited June 20, 2017). According to the African Court, only eight State Parties have made the art. 34(6) declaration allowing individuals and NGOs direct access to the Court. AfCHPR, “Republic of Tunisia Signs African Court Declaration to Allow NGOs and Individuals to Access the Human and Peoples’ Rights Court Directly,” press release, Apr. 18, 2017, http://en.african-court .org/index.php/news/press-releases/item/145-republic-of-tunisia-signs-african-court -declaration-to-allow-ngos-and-individuals-to-access-the-human-and-peoples-rights -court-directly (last visited June 22, 2017). See generally Udombana, Toward the African Court on Human and Peoples’ Rights, supra n.75 (examining the creation of the African Court, to include its improvements over the Commission in protecting human rights). 81  Protocol to the African Charter, supra n.80, art. 3. 82  Id. art. 4. 83  Id. art. 3(1).

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Still, there has been considerable question about the long-term effectiveness of the court as a forum for advancing human rights. First, there is a problem with the enforceability of the court’s decisions; Article 27 provides only: “1. The Court shall render its judgment within ninety (90) days of having completed its deliberations. 2. The judgment of the Court decided by majority shall be final and not subject to appeal.” Article 30 further provides that the “States Parties to the present Protocol undertake to comply with the judgment in any case to which they are parties within the time stipulated by the Court and to guarantee its execution.” Thus, the court has limited options against a recalcitrant State, largely either by bringing the matter before the OAU Assembly of Heads of State and Government84 or by “shaming” that State with the publication of an unfavorable decision about its conduct. Second, there is a concern about the lack of direct access to the court by the human rights organizations that would often be best positioned to assist criminal defendants and raise important issues before the court. Unlike the recently reformed European Court, only individuals or non-governmental organizations (NGOs) that have been granted observer status before the Commission have the power to bring cases on behalf of individuals before the court.85 Nonetheless, NGO representatives could formally assist the Court in its proceedings, either under the Protocol which permits NGO representatives to appear as expert witnesses86 or the 2010 Rules of Court which could allow NGO representatives to file amicus briefs.87 Third, under Article 32, the court is dependent upon the AU—as well as the international donor community—for its budget.88 In short, an under resourced court, unable to provide for its own staffing and operations, can be a “toothless tiger.” In any case, the African Human Rights Court could provide an important legal forum to adjudicate the human rights issues raised in counterterrorism cases. In one 2016 case, Wilfred Onyango and others v. Tanzania,89 the court considered the extraordinary rendition of Kenyan nationals from Mozambique to Tanzania (there was no existing extradition agreement between 84  Id. art. 31. 85  Id. art. 5(3). 86  Id. art. 26(2). 87  African Court on Human and Peoples’ Rights, “Rules of Court,” June 2, 2010, rule 46(2) (permitting the Court to “ask any person or institution of its choice to obtain information, express an opinion or submit a report to it on any specific point”). See also Gino J. Naldi, Observations on the Rules of the African Court on Human and Peoples’ Rights, 14 Afr. Hum. Rts. L. J. 366, 381–382 (2014). 88  Udombana, Toward the African Court on Human and Peoples’ Rights, supra n.75, at 55–56. 89  Wilfred Onyango and others v. Tanzania, African Court on Human and Peoples’ Rights, application, 006/2013 (judgment of Mar. 18, 2016).

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Mozambique and Tanzania), involving applicants who had been convicted of multiple serious criminal offenses, despite torture and multiple violations of their fair trial rights. The Court found a violation of Charter Article 7 by failing to provide legal assistance in the national courts when it became clear that the applicant’s advocate had abandoned them (i.e., the State should have then provided legal assistance).90 The 1999 OAU Convention on the Prevention and Combating of Terrorism (the 1999 Algiers Convention) imposes important international obligations on African States, not all EAC Partners have ratified or acceded to this treaty.91 This comprehensive counterterrorism convention recognizes terrorism as a “serious violation of human rights” and acknowledges the “growing links between terrorism and organized crimes, including the illicit traffic of arms, drugs, and money laundering.”92 Initially, this convention contains a useful for counterterrorism practitioners;93 Article 1 defines a “terrorist act” as: (a) any act which is a violation of the criminal laws of a State Party and which may endanger the life, physical integrity or freedom of, or cause serious injury or death to, any person, any number or group of persons or causes or may cause damage to public or private property, natural resources, environmental or cultural heritage and is calculated or intended to: (i) intimidate, put in fear, force, coerce or induce any government, body, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint, or to act according to certain principles; or (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) create general insurrection in a State.

90  Id. at 55. 91   OAU Convention on the Prevention and Combating of Terrorism, adopted by the 35th Ordinary Session of the Assembly of Heads of State and Government in Algiers, Algeria, in July 1999, Decision AHG/Dec. 132 (XXXV) and entered into force on Dec. 6, 2002. See also table 2, infra (Regional Parties to CT/Human Rights Treaties/Conventions). 92   OAU Convention on the Prevention and Combating of Terrorism, preamble. 93  This definition also provided the basis for Article 28G in the 2014 Malabo Convention. Werle, The African Criminal Court, supra n.43, at 79.

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(b) any promotion, sponsoring, contribution to, command, aid, incite­ ment, encouragement, attempt, threat, conspiracy, organizing, or procurement of any person, with the intent to commit any act referred to in paragraph (a)(i) to (iii). Thus, this convention defines the underlying acts as violations of municipal criminal law, but without defining the term “terrorism.” The convention addresses political offenses with a two-pronged approach. Initially, Article 3(1) provides that “the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.”94 However, Article 3(2) provides that: “Political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act.”95 The 1999 Algiers Convention then obligates the State Parties to domesticate a range of criminal offenses with “appropriate penalties” (also not defined in the convention) based upon crimes defined in this treaty, as well as defined in 12 other international instruments listed in an annex, that proscribe certain violent acts that were considered terrorist-related.96 The State Parties agreed to a range of measures to promote regional cooperation in the fight against terrorists. Undoubtedly, the most important agreement—one all too often breached on the continent—was the Article 4 commitment “to refrain from any acts aimed at organizing, supporting, financing, committing or inciting to commit terrorist acts, or providing havens for terrorists, directly or indirectly, including the provision of weapons and their stockpiling in their countries and the issuing of visas and travel documents.”97 The State Parties also agreed to cooperate in combating the cross-border movement of arms, ammunition, 94  O AU Convention on the Prevention and Combating of Terrorism, art. 3(1). However, certain terrorist acts during an armed conflict are prohibited under international humanitarian law (i.e., the 1949 Geneva Conventions and the 1977 Additional Protocols). Economic and Social Council, Commission on Human Rights, Specific Human Rights Issues: New Priorities, In Particular Terrorism and Counter-Terrorism, U.N. Doc. E/CN.4/ Sub.2/2004/40 (June 25, 2004), para. 33. 95  O AU Convention on the Prevention and Combating of Terrorism, art. 3(2). 96  This book does not, however, explicitly examine compliance among the EAC Partner States with the domestication obligations under the annex of the Algiers Convention; the annex list obligates State Parties to domesticate some offenses, like those involving crimes against nuclear material or fixed sea platforms, which have less relevance to the modern counterterrorism threat in the EAC. 97  O AU Convention on the Prevention and Combating of Terrorism, art. 4(1).

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and explosives; in strengthening customs and immigration controls; in exchanging of counterterrorism information and expertise; in the arrest, investigation and prosecution of terrorist suspects, to include a “extradite or prosecute” obligation; and in establishing effective cooperation between relevant domestic security services.98 The 1999 Algiers Convention also imposes an important set of obligations regarding the assertion of criminal jurisdiction, the extradition of suspects, and mutual legal assistance. Article 6 provides that State Parties may assert jurisdiction over terrorist acts based upon the territoriality principle (where the crime occurred, to include on board an aircraft or vessel registered in that State), the nationality principle (based upon the nationality of the perpetrator, even though the crime had been committed outside its territory), the passive personality principle (based upon the nationality of the victim), and the protective principle (based on the protection of state security). The 1999 Algiers Convention does not otherwise recognize the principle of universal jurisdiction. Articles 8–13 impose a set of procedures and obligations in cases involving extradition requests with respect to terrorist acts carried on the territory of another State Party. Finally, the Convention has a set of obligations to support extra-territorial criminal investigations in terrorism cases, to include document and witness production, searches and seizures, and the service of legal documents. The 2011 African Model Law on Anti-Terrorism was endorsed by the AU Assembly in an effort to help harmonize national terrorism laws.99 This model law begins with a useful set of definitions, to include a reasonably specific definition for a “terrorist act.”100 This model law categorizes offenses as terrorism and offenses associated or connected with terrorist acts, convention acts (i.e., acts in violation certain international conventions, such as acts of violence involving aircraft, against internationally protected persons, or terrorist bombings), and other offenses (i.e., harboring or concealment of persons, a duty to report presence of a person suspected of intending to commit or having committed an offense, and offenses related to hoaxes). The terrorism offenses and the offenses associated with terrorist acts include five main offenses: terrorism, the financing of terrorism, money laundering 98  Id. art. 4(2). 99   U N Office to the African Union, Counterterrorism, https://unoau.unmissions.org/ counter-terrorism (last visited June 17, 2017). This African Model Anti-Terrorism Law was endorsed by the AU Assembly, Malabo, July 1, 2011. 100  Id. Part I(1)(xxxix). However, this definition of “terrorist act” does vary from the narrower one in the 1999 OAU Convention on the Prevention and Combating of Terrorism, art. 1, supra n.91.

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(but without providing a recommended list of predicate acts), financing of terrorism and money laundering by legal persons, and certain acts in support of terrorism. The model law contains measures to prevent money laundering and the financing of terrorism, a procedure for the proscription of entities (i.e., the designation of groups as terrorism organizations, to include compliance with decisions made by the UN Security Council under its Chapter VII authorities), and procedures for extradition and mutual legal assistance in criminal matters. While this model law offers a comprehensive approach for legislators considering the passage of a new counterterrorism statute at the municipal level, it does have some shortcomings. First, Article 4 (definitions) offers a difficult exception for acts associated with a “struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination….”101 Thus, there will likely be a problem distinguishing between such struggles and the international and non-international armed conflicts defined in the next section.102 Indeed, in any case where the “struggle” passes from a domestic disturbances and criminal acts, it would likely meet the definition for a non-international armed conflict. Second, while the next sub-section exempts acts covered by international humanitarian law from the operation of the statute, a municipal statute should make reference to a statute that domesticates the operation of Hague/Geneva law. In other words, a municipal statute should clearly indicate that such exempted acts are to be prosecuted as war crimes. Here, it would be useful for a municipal statute to set forth a requirement for the national president to declare a state of emergency—under either the national Constitution or a separate statute—before a court of law could consider the existence of a noninternational armed conflict.103 Thus, while the decision to declare such a state of emergency is undoubtedly a political decision made by the executive based upon a range of factors, the courts should consider its existence based upon public proclamations rather than after-the-fact claims. Third, the money laundering provisions in the model law should be expanded at the municipal level, particularly with respect to “predicate 101  African Model Anti-Terrorism Law, art. 4(xl)(b). 102  Id. art. 4(xl)(c). 103  See, for example, Const. of Kenya, 2010, art. 58, combined with Article 132(4)(d), gives the President the limited authority to declare a state of emergency only when “(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared.”

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offenses.” This model law does not identify national-level predicate offenses, but rather only to a range of offenses committed outside the country and using a dual-criminality requirement.104 Here, it would be useful for the municipal statute to indicate the applicable predicate offenses. This list of predicate offenses should probably include offenses which could be used by terrorist groups to facilitate their travel and operations, such as the bribery of corrupt government officials to evade border/immigration controls and to obtain false identity documents,105 or to fund their operations, such as bank robbery, drug trafficking,106 extortion,107 computer-based fraud,108 counterfeit pharmaceuticals,109 kidnapping for ransom, piracy,110 smuggling (e.g., arms, 104  African Model Anti-Terrorism Law, art. 7(4). 105  Corruption has been defined as an “abuse of power” for private gain and includes both public and private sector corruption, as well as activities at both the petty and grand levels. According to one writer, this definition “should be elastic to include, in the case of Africa, both benefits accruing directly to the person entrusted with the power as well as those that accrue to his ethnic nationality, political party and other members of his clientele.” See generally Udombana, Fighting Corruption Seriously?, supra n.16, at 463. 106  See Office on Drugs and Crime, World Drug Report, United Nations (2015) (noting the increasing importance of East Africa as a transit region for Afghan heroin shipments bound for Europe and other regions). 107   L ouise I. Shelley, Dirty Entanglements: Corruption, Crime, and Terrorism 137–38 (2014) (noting that some terrorist groups have extorted funds and other material assistance from diaspora communities to support operations in home countries and that such exploitation is often undetected because local law enforcement officials typically lack the necessary language and cultural skills to appreciate what is occurring). In other cases, a terrorist group might extort funds from a multi-national corporation to avoid attacks on its local business interests. Id. at 187–88. 108  This can, for example, include credit card theft and a range of fraudulent schemes conducted over the Internet. Id. at 188–91. 109  Jocelyne Sambira, Counterfeit Drugs Raise Africa’s Temperature, Africa Renewal Online, May 2013, http://www.un.org/africarenewal/magazine/may-2013/counterfeit -drugs-raise-africa%E2%80%99s-temperature (last visited July 13, 2017) (http://www .un.org/africarenewal/magazine/may-2013/counterfeit-drugs-raise-africa%E2%80%99s -temperature (last visited July 13, 2017) (noting that in some parts of Africa more than 30 percent of available medications may be counterfeit, with the penalties too low and the profits too high—particularly if the trade involves high-demand products like antimalarial medications). 110  In one interesting 2008 case, Somali pirates seized a Ukrainian ship (the MV Faina) that was transporting 33 Russian T-72 tanks and other weapons and ammunition that were apparently bound for the Kenyan port of Mombasa. This case illustrates how piracy can be both a source of revenue (ransom) as well as a source for otherwise hardto-procure weapons. Fred Bridgland, Pirates Call All the Shots, The Sunday Herald, Oct. 1, 2008, https://web.archive.org/web/20081001002509/http://www.Sundayherald .com/international/shinternational/display.var.2453784.0.0.php (last visited July 11, 2017).

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cigarettes, consumer goods,111 ivory,112 rhinoceros horns, and natural resources like coltan and gold113), and “trafficking in persons.”114 Moreover, the money laundering section could be expanded to provide for civil and criminal forfeiture provisions that would allow for the seizure of assets held by terrorists and terrorist organizations that have committed certain proscribed acts. This would allow municipal authorities to impose a punitive economic burden on those who associate themselves—either directly or indirectly in the operational support structure—with terrorist acts. Fourth, even though the model law includes a listing of convention offenses some of which may not apply to all EAC Partner States, the municipal statutes should probably include all such offenses. This will help ensure comprehensive coverage, even if it is not foreseeable that certain acts could be committed within the jurisdictional reach of a certain country. In sum, the East African Partner States have a rich and developing regional body of law that is generally applicable to counterterrorism cases. The East 111  Shelley, Dirty Entanglements, supra n.107, at 272–73 (noting that Kenya is the largest recipient of counterfeit goods in East Africa, with al-Shabaab “taxing” the illicit trade between Kenya and Somalia). 112  Navin Singh Khadka, East Asian Networks ‘Smuggle Ivory across Africa, BBC News, July 7, 2016, http://www.bbc.com/news/world-africa-36717989 (last visited July 12, 2017) (noting that the largest ivory flow in Africa involves Kenya, Tanzania and Uganda). 113   T he East African, EA fingered in $400m worth of DR Congo Gold Smuggled to Uganda, Feb. 8, 2014, http://www.theeastafrican.co.ke/news/Smuggled--400m-DR-Congo-gold -fuels-war-/2558-2198074-82g9nc/index.html (last visited July 12, 2017) (showing the transit routes of illegal trafficking in gold from the Democratic Republic of Congo through Uganda, Kenya, Burundi, and Tanzania). 114  International Organization for Migration, Human Trafficking in Eastern Africa: Research Assessment and Baseline Information in Tanzania, Kenya, Uganda, and Burundi (Geneva, SZ: IOM, 2008) (noting that trafficked labor has been documented in East Africa in a range of sectors and industries, including agriculture, mining, services, domestic work, and prostitution, as well as trafficking for military service, forced marriage, and ritual purposes). The term “trafficking in persons” is defined by international convention (the Palermo Protocol) as:    “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”    T he Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Palermo Protocol), signed on Dec. 12, 2000, and entered into force on Dec. 25, 2003. UN Treaty Collection, https://treaties .un.org/ (last visited Oct. 25, 2017).

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African parliaments must consider international and regional sources of human rights law in drafting municipal legislation; in turn, national-level courts must consider a range of international and domestic instruments in deciding cases. 2.4

The Transition to the Use of Force and UN Charter Law

Broadly, it is generally accepted that international human rights do not cease during an armed conflict. Thus, rather than an “intellectual apartheid” separating international human rights from international humanitarian law, there are overlapping legal obligations and, in some cases, some confusion about applicable law. This can be acute problem with a nation-state facing an organized armed group (e.g., a terrorist organization) that lacks territorial control and may be operating from a sanctuary in a neighboring foreign state. Initially, it is clear that there are some non-derogable human rights, to include both treaty and peremptory (jus cogens) norms, which remain in effect during an armed conflict. Here, for example, the International Court of Justice (ICJ) has observed that the protections of the ICCPR “does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated during a national emergency.”115 In turn, Article 4 permits States parties to the convention to “take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”116 However, Article 4(2) provides that no derogation may made from the right to life, including limitations on the death penalty (Article 6); the freedom from imprisonment “merely on the ground of inability to fulfil a contractual obligation (Article 11); the freedom from the imposition of ex post facto penalties (Article 15); the right to recognition as 115   I CJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of July 8, 1996, para. 25. See also Human Rights Commission Res. 2005/80 (Apr. 21, 2005), Protection of Human Rights and Fundamental Freedoms While Counter­ing Terrorism, articles 3 and 4 (recognizing non-derogable rights in any circumstances and calling upon States “to raise awareness of the importance of these obligations among national authorities involved in combating terrorism”). 116   I CCPR, supra n.34, art. 4. See also Human Rights Committee (ICCPR), General Comment No. 29 (Article 4: Derogations during a State of Emergency),” U.N. Doc. CCPR/C/21/Rev.1/ Add.11 (Aug. 31, 2001) (providing that “[measures] derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency.”).

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a person before the law (Article 16); and the right to the freedom of thought, conscience and religion (Article 18). Thus, to the extent that a State Party is involved in an international or non-international armed conflict, international humanitarian law (i.e., Hague/Geneva law) within certain limitations imposed by the ICCPR or other international instrument,117 would apply to that conflict.118 Second, there is emerging opinion (opinio juris) that human rights law can apply extra-territorially in situations in which a State has jurisdiction over foreign territory or persons through the exercise of effective control.119 One instructive case involves the 2004 decision of the International Court of Justice (ICJ) in the Palestinian Wall case.120 Here, the Court found that the Fourth Geneva Convention121 was applicable to the Israeli occupation of Palestinian territory and that the “construction of the wall and its associated régime impede the liberty of movement of the inhabitants of [that] Territory (with the exception of Israeli citizens and those assimilated thereto) as guaranteed

117   T he Convention against Torture, art. 2(2), provides: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” 118  But see Michael J. Dennis, Non-Application of Civil and Political Rights Treaties During Times of International Armed Conflict, 40 Isr. L. Rev. 2 (2007): 453–502 (examining the extra-territorial application of core international human rights treaties during periods of armed conflict and military occupation). The High Commissioner for Human Rights has also expounded on certain other rights, to include the right to a fair trial and the prohibitions against the taking of hostages, abductions and unacknowledged detention, which it considers to be non-derogable. ESCOR Hum. Rts. Comm., Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, paras. 42–45, U.N. Doc. E/CN.4/2005/103 (Feb. 7, 2005). 119   I CJ, Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), Judgment of Dec. 19, 2005 (treating Uganda as an “occupying power”); and Al-Skeini and Others v. The United Kingdom, ECtHR (Grand Chamber), Application no. 55721/07, July 7, 2011 (involving a case by six Iraqi nationals against the United Kingdom regarding the conduct of its soldiers during the occupation of Iraq). See also Michaela Hailbronner, Laws in Conflict: The Relationship between Human Rights and International Humanitarian Law under the African Charter on Human and Peoples’ Rights, 16 Afr. Hum. Rts. L. J. 339, 342–47 (2016). 120   I CJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (July 9, 2004), para. 106 (“the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights’). 121   G eneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva Convention IV).

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under Article 12, paragraph 1, of the [ICCPR].”122 The Court held that the “wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order.”123 This is noteworthy because, by the terms of ICCPR, art. 4, the liberty of movement is not a non-derogable right, but is one only limited by clause 3: “The abovementioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” Thus, an East African nation, such as Kenya or Uganda, participating in UN peacekeeping operations in Somalia would be obligated to extend the protections of the ICCPR to persons under its control in Somalia.124 A second instructive case involves the claims made by the Democratic Republic of Congo (DRC) against Uganda, Rwanda and Burundi for the offenses committed by the armed forces of those three countries after their 1998 invasion, with the respondents claiming that their occupation of Congolese territory was justified based upon the fact that rebel armed groups (i.e., terrorist groups) were using that territory for cross-border attacks.125 Initially, the DRC filed a communication with the African Commission, with the Commission finding violations of the African Charter, the 1949 Geneva Conventions, and the 1977 Additional Protocol I.126 Subsequently, the ICJ also found against Uganda in its merits opinion. The Court found that the armed conflict was international in nature, finding violations of state sovereignty under the UN Charter. The Court also examined the issue whether Uganda was an occupying power within the

122   I CJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n.120, para. 134. 123  Id. para. 137. 124   E SCOR Hum. Rts. Comm., Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, para. 25, U.N. Doc. E/CN.4/2005/103 (Feb. 7, 2005). 125  The African Commission on Human and Peoples’ Rights, Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, 227/99, 20th ACHPR AAR Annex IV (2005–2006). See also ICJ, Armed Activities on the Territory of the Congo (D.R.C. v. Uganda) (Dec. 15, 2005) (finding that Uganda had failed as the “occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in the Ituri district, violated its obligations under international human rights law and international humanitarian law”). 126   I CJ, D.R.C. v. Uganda, supra n.125, paras. 66–98.

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meaning of Article 42 of the 1907 Hague Regulations.127 The Court explained that it must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government.128 The Court then found that the Ugandan military had established and exercised authority in the Ituri province as an occupying Power.129 Here, there are several important, related issues raised with these two decisions: First, it is not clear that combined counterterrorism operations into another State could be necessarily characterized as an international armed conflict. In other words, the combined forces—although they committed excesses against the Congolese population—were focused on “organized armed groups” that had been using DRC territory as a sanctuary for terrorist attacks against Uganda, Rwanda and possibly Burundi, particularly in provinces in which the Congolese government had been previously unable or unwilling to establish effective state control. Second, it is not clear whether or not the armed groups had ever exercised “territorial control” in the Eastern DRC, leaving open the question whether or not Additional Protocol 2—as opposed to Common Article 3 only—even applied to the original conflict between the intervening States and the armed groups. This raises an issue concerning the point at which the combined intervention against the base camps in the DRC changed the nature of that conflict into an international armed conflict involving the DRC itself against Uganda, Rwanda and Burundi, and thereby creating obligations under Common Article 2 and Additional Protocol I. Third, there is an issue about the level of authority needed to establish “effective control” over territory, much like Israel has accomplished over the course of its decades-long administration in the West Bank or the United States later did after its 2003 occupation of Iraq. According to the International 127  Article 42 provides: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land, Oct. 18, 1907. 128   I CJ, D.R.C. v. Uganda, supra n.125, para. 173. 129  Id. para. 176.

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Committee of the Red Cross (ICRC), effective control could mean one of two things: It could mean that an “occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory.”130 In the alternative, it could mean that an “occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation.”131 Thus, the presence of troops and the conduct of extended counterterrorism operations against elusive groups, standing alone, cannot necessarily mean that a nation-state is an “occupying power” under Geneva law. In any case, there are open questions about the applicable human rights norms since Geneva Common Article 3 and the 1977 Additional Protocol 2 provide considerably less definition than would be true in an international armed conflict. This leads to the question concerning the nature of the relationship between international human rights and international humanitarian law under the African Charter. First, the Charter permits both the African Com­ mission and the African Court of Human Rights to interpret and apply a widerange of international law sources in its decision-making processes.132 Second, one should note that the African Charter, unlike the ICCPR, lacks an explicit derogation clause.133 This has led at least one writer to suggest that “Charter rights [operate in parallel] both in times of peace and armed conflict.”134 He argues that given the ambiguous approach to international humanitarian law taken by the African Commission in many of its decisions, which sometimes lack an analysis to support its conclusion, it can be difficult to understand whether the Commission is making an independent application of international humanitarian law or interpreting Charter rights in light of that body of law (namely, whether international humanitarian law takes a “subsidiary role”135 under the Charter). This means that an African nation can

130   I CRC, “Occupation and International Humanitarian Law: Questions and Answers,” Apr. 8, 2004, https://www.icrc.org/eng/resources/documents/misc/634kfc.htm (last visited June 24, 2017). 131  Id. 132  The Banjul Charter, supra n.53, art. 60. 133  The Banjul Charter does, however, recognize that authorities may limit some fundamental human rights, at least in some circumstances: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.” Id. art. 27(2). This implies that a State would have to demonstrate a legitimate state interest and proportionality in support of its limiting actions. Michael Newton & Larry May, Proportionality in International Law 122–28 (2014). 134  Hailbronner, Laws in Conflict, supra n.119, at 346. 135  The Banjul Charter, supra n.53, art. 61.

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face a difficult problem in deciding between conflicting legal obligations in a particular conflict. Thus, a nation-state, faced with a significant terrorist threat, must make important decisions about the nature of that conflict, whether it could be considered an “occupying power,” the applicable human rights norms, the status of terrorists as either criminal actors or combatants, and the standards for the treatment, interrogation and prosecution of captured persons (ter­ rorists). First, at least initially, domestic threats should be treated as a law enforcement problem calling for the application of international human rights law. However, the existence of “protracted armed violence” involving an “organized armed group” may, at some later point, arise to a non-international armed conflict requiring the use of State military forces to suppress that terrorist group. Second, a nation-state, when conducting extra-territorial military operations (e.g., a peacekeeping operation under the auspices of the AU or the UN), may assume additional obligations as an occupying power under international law. Nonetheless, a State Party to an armed conflict has an international law obligation to make known its political decision to derogate from applicable human rights norms to the UN Secretary General, as required by Article 4(3) to the ICCPR. 2.5

International Humanitarian Law

The nature of a domestic (non-international) armed conflict with an organized group affects national obligations under international humanitarian law. The 1949 Geneva Conventions created a bifurcated framework, providing for protections in either international (Common Article 2) or non-international (Common Article 3) armed conflicts.136 At that time, the drafters were focused 136  According to Dr. Jean Pictet, the noted Swiss expert on the Geneva Conventions, the term “armed conflict,” at least in relation to Common Article 2, means “[any] difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war.” J.S. Pictet, Commentary on the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 32 (International Committee of the Red Cross, 1952). Pictet then offers a non-exclusive set of factors for determination of whether or not Common Article 3 applies to a purely domestic conflict, to include whether the party in revolt possesses an organized military force, whether the de jure government has recourse to the use of military force against the insurgents, whether the government recognizes the insurgents as belligerents or claims such rights for itself, and whether the insurgents have the characteristics of a State with some level of territorial control and with its military

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primarily on international armed conflict and viewed non-international armed conflict primarily in terms of a rebellion or civil war within a single country.137 Still, the 1949 Geneva Conventions afforded major improvements in the legal protection of victims of international conflicts—wars between sovereign nations, while providing limited protections to non-combatants in non-international armed conflict.138 Critically, for the purposes of a domestic conflict, Common Article 3 provided a less expansive—and less clear—set of protections for the wounded and sick, prisoners of war, and civilians than it did for Common Article 2 conflicts. Eventually, the international community addressed this gap in international law with the 1977 Additional Protocol (AP) II.139 AP II was designed to make international humanitarian law forces acting under the direction of civilian authority. Id. at 49–50. This transition from a traditional law enforcement problem to one involving the application of military force to suppress an internal disturbance, indicating a certain level of intensity and particular quality to the conflict, provides a pragmatic means to benchmark the transition from international human rights to humanitarian law. In other words, the State is implicitly recognizing the seriousness of the situation, to include its inability to remedy the situation through law enforcement authorities and regular judicial process. This approach has also been followed by the UN Special Rapporteur on Terrorism and Human Rights. UN Economic and Social Council, “Specific Human Rights Issues,” supra n.94, para. 21 (describing an “armed conflict” as a situation requiring the use of military forces). This view of the transition from peacetime human rights law to the application of international humanitarian is probably best characterized as a standard of customary international law. 137   Geoffrey S. Corn, et al., THE LAW of ARMED CONFLICT: AN OPERATIONAL APPROACH 45 (2012). 138  Under Common Article 2, of the Geneva Conventions of 1949, an international armed conflict is defined as a “declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” Common Article 3 applies “[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties….” Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva Convention III); and Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva Convention IV). All six EAC Partner States are parties to the 1949 Geneva Conventions, as well as the 1977 Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts) and the 1977 Additional Protocol II. 139  The 1977 Additional Protocol II applies to conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other

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more complete and universal, and to provide expanded obligations in a noninternational armed conflict. A domestic conflict raises important issues regarding the applicability of domestic and international humanitarian law: a conflict beginning in one country, involving some level of criminal activity (e.g., terrorism, internal disturbances, or insurgency), clearly raising issues under national criminal law, and yet domestic conflicts can also expand and evolve into a broader problem that involves neighboring countries. This raises controversial questions, at least in certain areas of a country and during certain periods, regarding the use of deadly force by police and security services in response to criminal activities: at what point does a conflict transition from a law enforcement problem to a noninternational armed conflict warranting the application of the international humanitarian law?140 In effect, what can begin as internal disturbances in one country can evolve into some level of a non-international armed conflict, organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Protocol II Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), Article 1. By its terms under Article II, Additional Protocol II does not apply to a range of internal disturbances; this raises an issue regarding the demarcation between a law enforcement problem and a non-international armed conflict. The 1977 Additional Protocol I applies to international armed conflicts, that is conflicts between two or more states, as well as “armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination….” Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), art. 1 (4). 140  Under a law enforcement paradigm, the police and security services would be limited in the use of deadly force based upon a conduct-based standard (e.g., imminent threat to others) for targeting terrorists, while the IHL can permit a broader, status-based standard. In any case, The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (BPUFF), adopted by the UN Congress on the Prevention of Crime and the Treatment of Offenders, Aug. 27 to Sept. 7, 1990, provides a minimum standard for law enforcement operations under international human rights law. Article 9 provides:    “Law enforcement officials shall not use firearms against persons except in selfdefence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”   This standard is based in part on the ICCPR, supra n.34, and clearly envisions the use of graduated force, with a presumption that law enforcement officers, as well as military

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and eventually spread into a transnational armed conflict.141 Thus, a domestic conflict raises several important issues regarding the applicability of different norms of international humanitarian law. Among these are the definition of non-international armed conflict, the difference between combatants and civilians (i.e., what constitutes an organized armed group), and when a civilian can be considered to be engaged in “direct participation in hostilities.” This discussion leads directly to the question whether such “participants” can be held accountable for all offenses committed in violation of national criminal law, or whether the government would voluntarily extend combatant’s privilege to the killing of soldiers and other government employees—but likely not for the intentional targeting of civilians that are typical of many terrorist attacks. One initial problem to seeking accountability involves the definition of a non-international armed conflict, and how this affects the legal obligations of the parties to that conflict.142 In effect, there are two types of non-international armed conflict in international humanitarian law. Common Article 3 applies to an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,” without further qualification. Yet, AP II applies to armed conflicts that “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command exercise such control over a part of its territory as to enable them to carry out sustained and concerted personnel conducting law enforcement operations, can use deadly force to respond to imminent threats. 141  A nation, facing widespread disturbances and criminality, is often reluctant to recognize that a domestic situation has changed from a law enforcement problem to one involving the use of armed forces subject to the constraints of IHL. In part, a nation may be reluctant to admit to an inability to enforce its own laws with an implicit invitation for international scrutiny over its actions, as well as those of its adversary; in part, a nation may also believe that an acknowledgement regarding the application of IHL also carries an implicit political recognition of the adversary’s status. Andrew J. Carswell, Classifying the Conflict: A Soldier’s Dilemma, 91 Int’l Rev. Red Cross 143, 150 (2009). Common Article 3 to the Geneva Conventions, supra n.138, provides: “The application of the preceding provisions shall not affect the legal status of the conflict.” Moreover, AP II, supra n.139, Article 3 (1), provides: “Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” This section clearly indicates that a State can recognize the application of AP II to its internal armed conflict without making an implicit recognition of the sovereignty demands of dissident armed forces or an opposing organized armed group. 142  See generally How is the Term “Armed Conflict” Defined in International Humanitarian Law?, (Opinion Paper (Mar. 2008).

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military operations and to implement this Protocol.”143 This leads to the issue whether a criminal (i.e., terrorist) group qualifies as an “organized armed group”—with territorial control—triggering the application of AP II. Indeed, many modern terrorist groups never make the transition to territorial control, such that Common Article 3 might apply but not AP II. In any case, Common Article 3 provides the minimum standards for humanitarian treatment applicable during armed conflict, with AP II imposing additional requirements on signatory countries and “organized armed groups” that exercise territorial control. The International Criminal Tribunal for the Former Yugoslavia (ICTY) has held that “armed conflict of a non-international character may only arise when there is protracted violence between governmental authorities and organised armed groups, or between such groups, within a State.”144 In fact, the ICTY has elaborated on the intensity of the “protracted armed violence” required and has developed a robust list of factors that can be used in a totality of the circumstances test.145 Likewise, the ICTY has also elaborated on the second

143   A P II, supra n.139. 144  Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84bis-T, ¶ 393 (Int’l Crim. Tribun. for the Former Yugoslavia, Nov. 29, 2012); The Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, ¶ 70 (Int’l Crim. Tribun. for the Former Yugoslavia, Oct. 2, 1995). The Rome Statute of the International Criminal Court also adopts this definition; it exempts “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” from the operation of the Statute and defines non-international armed conflict as a “protracted armed conflict between governmental authorities and organized armed groups or between such groups.”). The Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, U.N. Treaty Collection, https://treaties .un.org/pages/UNTSOnline.aspx?id=1 (last visited July 26, 2017), art. 8(2)(f). Moreover, the International Committee of the Red Cross has also noted that the “armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.” ICRC, How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?, (March 2008) (Opinion Paper, emphasis in original), https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf (last visited Feb. 15, 2018). 145  See, e.g., Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Motion for Judgment of Acquittal, ¶ 27 (Int’l Crim. Tribun. for the Former Yugoslavia, June 16, 2004) (the Court considered the length or protracted nature of the conflict and seriousness and increase in armed clashes, the spread of clashes over territory, the increase in the number of government forces sent to the territory, and the weapons used by both parties); and Prosecutor v. Limaj, Case No. IT-03-66-T, Judgment, ¶ 90 (Int’l Crim. Tribun. for the Former Yugoslavia, Nov. 30, 1995) (adding whether the conflict has come the attention of the U.N. Security Council and whether any resolutions have been passed on the matter).

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requirement involving a conflict with an “organized armed group.”146 On one hand, a government may face internal civil strife and “banditry,” meaning that the domestic criminal law applies in all parts of the country, whether or not IHL overlays on that or not, for certain situations. On the other hand, the fact that fighting took place only in certain parts of the country and not others, does not necessarily preclude the application of international humanitarian law provided that the criminal acts were sufficiently connected with the ongoing conflict. A domestic armed group poses vexing problems in terms of the combatant status of its members under the Third Geneva Convention. Initially, there is the question whether the organization itself transitioned from a criminal enterprise, subject solely to national criminal laws, to belligerent status under international humanitarian law, or has become some combination of both criminal and belligerent. This poses important political and legal issues for the government. In turn, this leads to the issue whether the criminals (i.e., terrorists) are combatants who can be targeted based on status and later subjected to prosecution upon capture. The ICRC uses a “combat function” test to assess whether someone can be targeted. According to the ICRC, in “non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (‘continuous combat function’).”147 The ICRC sees the CCF test as involving a person’s integration into combat operations, to include the “preparation, execution, or command of acts or operations amounting to direct participation in hostilities,”148 but excluding other persons 146  Prosecutor v. Haradinaj, Case No. IT-04-84-T, Judgment, ¶ 49 (Int’l Crim. Tribun. for the Former Yugoslavia, Apr. 3, 2008) (the Court considered factors such as whether the group has a command structure with disciplinary rules; whether the group has a headquarters; whether the group controls territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice to negotiate and conclude agreements such as cease-fire or peace accords). 147  Nels Melzer, Interpretive Guidance on The Notion of Direct Participation in Hostilities Under International Humanitarian Law, International Com­ mittee of the Red Cross 16 (Feb. 2009). See also Public Committee against Torture in Israel v. Gov’t of Israel, Case. No. HCJ 769/02 (Israeli Supreme Court, Sept. 6, 1999) (construing the application of customary international law to Israeli targeting practices against nonstate actors, to include reviewing the standards for direct participation in hostilities and imposing a “heavy” burden of proof on the attacking army). 148  Id. at 34.

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who accompany or support the group. Here, a combat function could include carrying arms, exercising command over the group (or a sub unit), or carrying out various operational planning, intelligence or logistical (e.g., delivering ammunition) activities. Thus, the CCF test makes it possible for a government to target group members, not otherwise wearing uniforms or otherwise distinguishing themselves from the civilian population, depending upon the circumstances. In other words, some persons may support the group in many different ways, including spontaneous, episodic participation in hostilities, followed by a return to domestic activities. The characterization of a conflict as non-international, as well as a finding that group members are “unprivileged belligerents,” has important implications for accountability under both domestic and international criminal law. On one hand, if a non-international armed conflict has existed, the government can treat the belligerents as part of a criminal organization subject to prosecution under national criminal laws for the full range of acts, whether committed against the military personnel or civilians. Moreover, even if Common Article 3 does apply to this conflict, the government can still choose—as a matter of legal policy—to prosecute the belligerents for the killing of soldiers and civilians alike, or it can choose to exercise prosecutorial discretion and to charge war crimes only (effectively extending “combatant’s privilege” to the belligerents). On the other hand, if an international armed conflict has existed, the government may decide to forego prosecution for certain acts against the government while prosecuting the belligerents for war crimes and crimes against humanity. Also, a finding that certain offenses were committed in a non-international armed conflict limits the permissible range of charges against belligerents (i.e., the belligerents cannot be held accountable for “grave breaches” per se). In any case, the government must make a policy decision on whether, as well as for what crimes, to prosecute previously abducted children. One related problem involves whether a captured person, classified as either a terrorist or as a combatant, can be prosecuted before a military tribunal. In situations involving captured combatants in an international armed conflict, the Third Geneva Convention creates a presumption that prisoners should be tried in a military court, unless the detaining power’s own laws provide for the members of its armed forces to be tried in a civilian court.149 While this 149  Geneva Convention III, art. 84. Article 84, cl. 2, also provides that: “In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105.” [emphasis added] Article 105 then provides for various rights and means of defense, to include the right to the assistance of counsel,

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presumption applies only to international armed conflict, it can be logically extended to a domestic non-international armed conflict provided that the State, consistent with ICCPR Article 4, has recognized that the civil unrest has reached that threshold of protracted violence between a government and an organized armed group.150 In any case, the practice has less force and effect— with greater concerns over fair trial rights under the ICCPR—when a “terrorist” is captured on home territory and tried in a field expedient military proceeding in situations where the civilian courts are functioning and capable of trying the relevant offenses.151 The issues involving the trial of civilians are more complicated with respect to international peacekeeping operations. Presumably, non-state actors— taken prisoner during such operations (e.g., by Burundian or Ugandan forces deployed to Somalia with AMISOM)—are subject to the criminal laws of the State where they are present. However, this assumes that the host State takes timely and appropriate action to investigate and prosecute criminal offenses committed by suspected terrorists. Thus, this practice involving the trial of civilians (i.e., alleged terrorists) by a military court could be extended to a proceeding convened by a sending State peacekeeping contingent to address serious offenses, such as attacks against UN personnel, war crimes and crimes against humanity, committed during that non-international armed conflict. But, if peacekeeping forces were to consider prosecuting a captured terrorist, the right to call witnesses, the services of a competent interpreter (if necessary), time (a minimum of two weeks) and facilities to prepare a defense, and notice of the particular charges on which the prisoner will be arraigned. See also Additional Protocol I, art. 75 (4) (Fundamental guarantees), supra n.139 (imposing limitations on the passing of sentences on persons found guilty of offenses related to an international armed conflict). 150  The Prosecutor v. Dusko Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, ¶ 70 (Int’l Crim. Tribun. for the Former Yugoslavia, Oct. 2, 1995). 151  See generally Peter Rowe, The trial of prisoners of war by military courts in modern armed conflicts, in Contemporary Challenges to the Law of War: Essays in Honour of Professor Peter Rowe 318–325 (Caroline Harvey, et al., eds. 2014). In fact, both European and American courts are reluctant to see civilians tried by military tribunals. Compare Martin v. The United Kingdom, no. 40426/98, ECtHR (Fourth Section), Judgment (Merits and Just Satisfaction) of Oct. 24, 2006, para. 44 (“The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case.”), with Ex parte Milligan, 71 U.S. (4 Wall) 2, at 127 (1866) (“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, … where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.”).

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it would raise issues regarding the extent to which its own national laws had domesticated the 1949 Geneva Conventions; namely, whether such national laws had extended the criminal jurisdiction of its military courts to foreign nationals who are taken prisoner during peacekeeping operations abroad.152 In any case, the issues regarding the obligation to detain, investigate, and try members of organized armed groups and other non-state actors for violations of host State and international law—committed either prior to or after capture—should be spelled out in any Status of Forces Agreement between the sending and host States.153 One final problem involves the propriety of transnational counterterrorism operations under the Charter of the United Nations. Article 2(4), provides that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”154 Article 51, however, provides that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”155 This raises an issue whether, and to what extent, one nation-state can conduct a transnational counterterrorism operation— absent consent from the host State (i.e., the State where the terrorism group is physically located)—against that group using that host State as a base of operations/sanctuary for attacks against the first state.156 In other words, can 152  Rowe, The trial of prisoners of war by military courts in modern armed conflicts, supra n.151, at 325–27. By contrast, peacekeeping personnel from a sending State—both military and civilian—have full immunity from legal process from the host and transit States for acts committed in their official capacity. Nonetheless, the home (sending) State retains exclusive criminal jurisdiction—absent waiver—over acts committed during peacekeeping operations abroad. Dieter Fleck, The Legal Status of Personnel involved in United Nations Peace Operations, 95 Int’l Rev. of the Red Cross 613, 614–618 (2013). 153  See generally Fleck, The Legal Status of Personnel involved in United Nations Peace Operations, supra n.152, at 629–634. 154   U.N. Charter, art. 2(4), available at: http://www.refworld.org/docid/3ae6b3930.html (last visited Feb. 14, 2018). 155  Id. art. 51. 156  See, for example, Sean D. Murphy, The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan, 85 Int’l L. Studies 109 (2009) (examining “cross-border operations for the purpose of assessing their legality under the jus ad bellum; namely, the consistency between such operations and the norms embodied in Articles 2(4) and 51 of the U.N. Charter.”). See U.S. Department of Justice, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al Qaeda or an Associated Force, Nov. 8, 2011 (White Paper) (recognizing that the

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Kenya conduct such operations against al Shabaab elements operating from bases across the border in Somalia? Can Rwanda or Uganda conduct such operations against organized armed groups operating from the Democratic Republic of the Congo? Alternatively, what are Tanzania’s obligations with respect to Tutsi organized armed groups operating from refugee camps against the Hutu-dominated government in Burundi? There are competing moral and legal views on the cross-border issue, with the U.S. government taking a differing view from some its allies in its war against al Qaeda and associated forces.157 On one hand, the fact that identified terrorists, operating from known foreign locations, pose a direct threat to the State should provide strong moral and legal justification for a limited incursion consistent with the well-known principles of necessity, distinction and proportionality. Indeed, a host State would have a limited basis for complaint, given that it has a general obligation under international law to ensure that its territory is not used as a base of operations for organized armed groups against neighboring States. On the other hand, a counterterrorism targeted killing of an American citizen, who has joined a terrorist organization, would be lawful if the determination was determination by a senior government official that the individual poses an imminent threat to the United States, that capture is not feasible, and the operation would conduct consistent with the law governing the use of force in non-international armed conflict). See also Noura Erakat, New Imminence in the Time of Obama: The Impact of Targeted Killings on the Law of Self Defense (Temple University Legal Studies Research Paper No. 2013–14) (examining the legitimacy of the Obama Administration’s targeted killing practice, under an anticipatory self-defense argument, and how that argument relaxes the meaning of imminence). 157  See generally Jennifer C. Daskal, The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone, 161 U. Pa. L. Rev. 1165 (2013) (examining the controversial issues—to include the split of opinion between the United States and its European allies—regarding the geographic scope of the present conflict with al Qaeda and associated forces, and the related limits on the state’s authority to use lethal force). This is also related to the larger debate about whether there is a regulatory gap between Common Article 2 and Common Article 3 concerning whether Geneva law applies to conflicts between a nation-State and an organized armed group based in the territory of a neighboring State. Nonetheless, to the extent that one State takes non-territorial forcible action against an organized armed group based in the territory of a neighboring State—not party to the underlying conflict—it raises an issue with respect to a possible violation of the U.N. Charter. See generally Lindsay Moir, It’s a bird! It’s a plane! It’s a noninternational armed conflict!: cross-border hostilities between states and non-state actors,” in Harvey, Contemporary Challenges to the Law of War, supra n.151, at 71–94. See also Prosecutor v. Lubanga, ICC Trial Chamber Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06, 14 Mar. 2012, para. 541 (explaining the distinction between the types of conflict involving a State and a non-governmental armed group located in the territory of a neighboring State, depending upon whether the armed group is acting under the control of its own State).

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operation that is broader in scope and time than necessary, fails to target terrorists responsible for past acts, or causes excessive loss of civilian life and/ or collateral damage could be construed as an “armed attack” in violation of the UN Charter. Nonetheless, even limited cross-border operations do offend the territorial integrity and political sovereignty of a UN Member State because of the implied accusation that it is unable or unwilling to act, causing domestic and international embarrassment, with attendant risks of escalation into international armed conflict, and should be strictly construed against the offending State. Some uses of armed force between States, particularly localized, temporary incursions, can also be characterized as a frontier or border incident, without reaching the threshold of armed conflict and thereby constituting a violation of the UN Charter. In other words, a narrowly scoped counterterrorism operation (i.e., a forcible measure), conducted in violation of the territorial integrity of a host State, could be characterized as a legitimate act of self-defense if taken against an identifiable and imminent threat, especially if the host State is either unable or unwilling to prevent the group’s activities.158 Yoram Dinstein, a distinguished Israeli authority on international law, calls such cross-border activity aimed at an armed group as “extra-territorial law enforcement,” an act of legitimate self-defense.159 Gary Solis, an American expert on international humanitarian law, describes two useful examples of such law enforcement activity, based upon the well-recognized principles of immediacy, necessity and proportionality.160 In the first example, the United States conducted a 1916 punitive expedition to chase down Mexican bandits led by Francisco “Pancho” Villa who had been terrorizing border towns. In the second example, Israel conducted a 2006 cross-border attack into Lebanon to address indiscriminate Hezbollah attacks against Israeli civilians and border patrols. Thus, both actions were limited 158   I CJ, Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), para. 195 (examining the gravity of the operation, to include its “scale and effects” in assessing whether an armed attack in violation of the Charter has taken place). 159  Moir, It’s a bird! It’s a plane! It’s a non-international armed conflict in Harvey, Contemporary Challenges to the Law of War, supra n.151, at 81. See also Harold Hongju Koh, The Lawfulness of the U.S. Operation against Osama bin Laden, (March 25, 2010) (speech at the American Society of International Law commenting the 2011 mission conducted by the United States to capture/kill Osama bin Laden at Abbottabad, Pakistan, and noting U.S. compliance with the traditional principles of necessity, distinction and proportionality). 160  Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 159–64 (2010).

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incursions that aimed at eliminating the terrorist activity, rather than an attack on the host State itself. This analysis also implies that the State that has been victimized by cross-border terrorist attacks must also allow the host State a reasonable opportunity to take action against the armed groups using its territory as sanctuary and that an armed incursion should be limited in “scale and effects” to eradicate that identifiable threat. This leads to an issue involving state responsibility that arises when a host State provides some level of support to non-state organizations that conduct cross-border incursions into a neighboring State. This issue could begin with an EAC Partner State hosting refugees fleeing from a conflict in a neighboring country, only to find that some refugees have organized into armed groups that use the refugee camps as sanctuary to conduct attacks back into the home country. Thus, at some ill-defined level, state support may incur state responsibility for the actions of organized armed groups and thereby constitute an armed attack by the host State against its neighbor. Generally, there are two tests that have been used to assess whether support for a rebel/terrorist group serves to internationalize a conflict (i.e., change a situation into an Article 2 international armed conflict). The International Court of Justice has used an “actual control” test, finding in its 1986 decision that the actions of the United States in support of the contras against Nicaragua fell under the legal rules for international armed conflict.161 The International Criminal Tribunal for the former Yugoslavia has, however, used an “overall control” test to find sufficient evidence that the conflict was, indeed, international in character.162 Both tests offer a useful means of examining how a State can be held accountable under international law for providing a range of support, such as sanctuary, financial assistance, training, equipment and logistics, to armed groups. In sum, the threat posed by modern terrorist groups raises important questions regarding the applicability of international human rights and international humanitarian law. This means that a conflict that originates in one country with isolated and intermittent acts of criminality that targets civilians, government officials, and military personnel can evolve into 161   I CJ, Nicar. v. U.S., supra n.158, at paras. 109 and 219 (“What the Court has to determine at this point is whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government.”). 162  Prosecutor v. Tadic, Case No. IT-94-1, Judgement (July 15, 1999), para. 120 (“In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.”).

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“protracted armed violence” with an “organized armed group” that requires the use of military force in response. This change from a conduct-based, law enforcement paradigm to a status-based armed force paradigm is an existential political question for the affected government and it is a decision that is fraught with important legal implications. 2.6

Concluding Comments

The East African Partner States have a web of international legal obligations, both under international human rights and international humanitarian law, with respect to counterterrorism activities. Some obligations are based upon an international or regional treaty, while other obligations have been imposed by customary international law, the United Nations (UN) Security Council under its Chapter VII authority or, with respect to international peacekeeping operations, by the Secretary General. Some obligations have been assumed by all six East African Community (EAC) nations, while other obligations have been accepted by only some nations. One important question concerns the transition, lex specialis, from a conductbased law enforcement paradigm under international human rights law to a status-based armed conflict paradigm, an acute question for a State facing an implacable foe who intentionally targets civilians for political advantage but who lacks any degree of territorial control. This leads to important issues such as whether there are certain non-derogable civil and political rights during an armed conflict and whether there are legislative/judicial controls on such a state of national emergency. On one hand, one could argue that terrorists are a modern form of hostis humani generis, a common enemy of mankind, who should not be accorded combatant’s privilege but should be eradicated wherever found.163 Indeed, there is ample evidence of equally reprehensible

163  Some might even argue that a state of “supreme emergency”—the nature of necessity— justifies a suspension of certain moral restraint and laws, especially in the face of a terrorist group who openly flouts such restraint and the rule of law. See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 251–68 (1977). See also Michael L. Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (2010) (examining how terrorism is changing the way that we think about and practice war, noting how many formerly prohibited practices are evolving into new norms of asymmetric conflict).

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government misconduct—either in causing a conflict by leaving unresolved political grievances or in countering terrorist actions—in many countries around the world. On the other hand, to the extent that a terrorist group seeks a political objective involving State control, transitions to an organized armed group under responsible command, and assumes some degree of territorial control, that group could be said to have achieved some level of political legitimacy and therefore have a right to govern. Thus, how a State responds to a terrorist threat raises important legal issues that drives at the moral legitimacy of its political governance. This book now turns to a country-by-country analysis of counterterrorism law and practice in the East African Community, examining compliance with international obligations and standards, as well as noting strengths and weaknesses in national implementation. Table 1

Regional parties to CT/human rights treaties/conventionsa (by effective date of accession, ratification or succession)

Country

1948 Gen. 1963 Tokyo 1973 IPP 1979 Convention Conventionb Convention Hostage Taking

1984 Torture 1988 Convention Airport Violence

Burundi (Monist) Kenya Rwanda

1/6/97 (a)

12/10/71 (a) 1/16/81 (a)

Non-Party

2/18/93 (a)

Non-Party 4/16/75 (a)

9/20/70 (a) 8/15/71 (a)

6/3/83 (a) 2/21/97(a) Non-Party 6/12/02 (a) 12/15/08(a) Non-Party

12/16/01 (a) 10/15/74 (signed) South Sudan Non-Party Non-Party Non-Party Tanzania 4/5/84 (a) 11/10/83 (a) Non-Party Uganda 11/14/95 (a) 9/23/82 (a) 12/5/03 (a)

Non-Party 4/30/15(a) 2/21/03 (a) Non-Party 12/5/03 (r) 11/3/86(a)

Non-Party

Non-Party Non-Party Non-Party

a U.N. Treaty Series, https://treaties.un.org/ (last visited Oct. 26, 2017). b The Convention on Offences and Certain Other Acts Committed on Board Aircraft, also called the Tokyo Convention, entered into force on Dec. 4, 1969. The Convention is applicable to offences jeopardizing the safety of persons or property on board civilian aircraft while in-flight and engaged in international air navigation.

76 TABLE 2

Chapter 2 Regional parties to CT/human rights treaties/conventionsa (by effective date of accession, ratification or succession)

Country 1997 Terrorist Bombings

2005 2002 1999 1999 Terrorism Nuclear Montreal Algiers Convention Convention Financing Terrorism

2006 Enforced Disappearances

Burundi 3/4/98 11/4/03 Non-Party 11/13/01 10/24/08 (r) 2/6/07 (Monist) (signed) (signed) (signed) (signed) Kenya 12/16/01 (a) 11/28/01 (r) 11/1/03 (r) 7/27/03 (r) 7/7/06 (r) 2/6/07 (signed) Rwanda 6/12/02 (a) 4/29/02 (r) Warsaw & 6/12/02 (r) 3/6/06 Non-Party Hague (signed) South Non-Party Non-Party Non-Party Non-Party Non-Party Non-Party Sudan Tanzania 2/21/03 (a) 3/9/03 (a) 11/4/03 (a) 2/21/03 (a) Non-Party 2/6/07 (s) Uganda 12/5/03 (r) 10/17/03 (r) Warsaw 12/5/03 (r) Non-Party 2/6/07 (signed) a UN Treaty Series, https://treaties.un.org/ (last visited Oct. 25, 2017). Table 3

Country 1966 ICCPR

Regional parties to CT/human rights treaties/conventionsa (by effective date of accession, ratification or succession)

1st Optional Protocol, ICCPR (Complaints)

Burundi 5/9/90 (a) Non-Party (Monist) Kenya 5/1/72 (a) Non-Party Rwanda 4/16/75 (a) Non-Party

2d Optional Protocol, ICCPR (Death Pen.)

2012 AU IDP 2013 UN Optional Convention Arms Trade Protocol, (Kampala) Convention Torture Convention

Non-Party

10/18/13 (a) Non-Party

4/30/15(a)

Non-Party

6/3/13 (signed) Non-Party 6/5/13 (signed) Non-Party

Non-Party Non-Party

Non-Party 12/6/12 (r)

6/3/13 (s) Non-Party

Non-Party Non-Party 12/15/08 (a) 6/30/15 (a)

South Non-Party Non-Party Non-Party Sudan Tanzania 6/11/76 (a) Non-Party Non-Party Uganda 6/21/95 (a) 11/14/95 (a) Non-Party

Non-Party 1/31/13 (a)

a UN Treaty Series, https://treaties.un.org/ (last visited Oct. 25, 2017).

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Table 4-A Compliance with UNSCR 1373, municipal legislationa

Country Criminalize Financing & Impose Asset Freeze

Mutual Establish Refrain from Support & Deny Terrorist Acts Legal Support as Crimes & Safe Haven Prosecute Cases

Burundi PC § 616 None PC §§ 614–615 Kenya 2012 Terrorism 2011 Citizenship 2012 Terrorism Statute Statute & Imm. Act, art. 33(1) Rwanda 2012 Penal 2012 Penal Code, Penal Code Code, art. 7 art. 498 (Multiple) South NonSudan compliant Tanzania 2002 Terrorism Act Uganda 2017 ML Act

Noncompliant Varied Various Acts

Limited 2011 MLA Act & 2012 Terr. Stat. Extradition & judgment enforce. NonNoncompliant compliant 2002 Terrorism Legal Assist Act Act 2002 ATA 2002 ATA

Border Controls & Controls on Identity Documents PC § 351 2011 Citizenship & Immigration Act 2012 Penal Code, art. 618 Noncompliant Passport & Travel Docs Act Registration of Persons Act

a U.N. Security Council Resolution 1373 also calls upon States to become “parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999.” Id. art. 3d.

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Table 4-B Compliance with UNSCR 2178 (foreign terrorist fighters), municipal legislation

Country

Suppress the Recruiting, Organizing, Transporting & Equipping of FTF

Calls Upon Prevent the States to Entry & Transit of FTF Exchange Advance Passenger Information

Burundi

Penal Code, None § 615 Kenya 2012 Terrorism 2012 Statute Terrorism Statute Rwanda Penal Code, 2012 Penal § 459 Code South Sudan Non-compliant Non-compliant Tanzania 2002 Terrorism Passport Act & Travel Documents Act Uganda 2002 ATA 1970 Immigr. Act

None

Calls Upon States to Improve Regional & International Cooperation

Calls Upon States to Counter Violent Extremism

ICGLR Protocol None

2012 Terrorism 2012 Terrorism Statute (CTC); Statute ICGLR Protocol ICGLR & Varied 2012 Penal Code None ICGLR Protocol IGAD Action 2002 ICGLR Protocol IGAD Action & Terrorism Act NCTC 2012 Citizen. & Imm. Regs, art. 16(4) None

None

ICGLR & Varied IGAD Action

Table 5-A Anti-corruption and money laundering conventions

Burundi Kenya Rwanda S. Sudan Tanzania Uganda

UNCACa

OECD Briberyb AU Corrupt UN Conv. on Palermo Conv.c TOCd Protocol

3/10/06 (accepted) 12/9/03 (ratified) 10/4/06 (ratified) 1/23/15(a) 5/25/05 (ratified) 9/9/04 (ratified)

Non-Party

1/18/05

Non-Party

2/3/07

Non-Party

6/25/04

Non-Party Non-Party

Non-Party 2/22/05

Non-Party

8/30/04

5/24/12 (ratified) 6/16/04 (acceded) 9/26/03 (ratified) Non-Party 5/24/06 (ratified) 9/9/05 (ratified)

5/24/12 (ratified) 1/5/05 (acceded) 9/26/03 (ratified) Non-Party 5/24/06 (ratified) Non-Party

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a UN Convention against Corruption, entered into force Dec. 14, 2005, http://www .unodc.org/unodc/en/corruption/ratification-status.html (last visited June 12, 2017). b OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, entered into force Feb. 15, 1999, status as of May 21, 2014, http://www.oecd.org/corruption/oecdantibriberyconvention.htm (last visited June 12, 2017). c African Union Convention on Preventing and Combating Corruption, entered into force Aug. 5, 2006, ratification status as of June 15, 2017, https://www.au.int/web/ en/treaties/african-union-convention-preventing-and-combating-corruption (last visited June 18, 2017). d UN Convention against Transnational Organized Crime, entered into force Sept. 29, 2009, https://www.unodc.org/unodc/en/treaties/CTOC/signatures.html (last visited Oct. 25, 2017). Table 5-B Anti-corruption and money laundering memberships

Burundi Kenya Rwanda South Sudan Tanzania Uganda

Egmont Member ESAAMLGa

Transparency Intl, 2016 Corruption Perceptions Indexb

Non-member Non-member Non-member Non-member Member Non-member

159/176 145/176 50/176 175/176 116/176 151/176

Non-member Member Member Non-member Member Member

a The purpose of the Eastern and Southern Africa Anti-Money Laundering Group (ESSAMLG) is to combat money laundering by implementing the recommendations of the Financial Action Task Force (FATF), but none of the EAC States are also members of the FATF. FATF Website, http://www.fatf-gafi.org/ (last visited June 12, 2017). b Transparency International, “Corruption Perceptions Index 2016,” https://www.transparency. org/news/feature/corruption_perceptions_index_2016#regional (last visited June 23, 2017). This ranking indicates that there are serious problems with corruption throughout the EAC.

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Table 6

Major regional non-international armed conflicts

Country

Groups

Burundi

Widespread protests

Kenya

Rwanda

S. Sudan Tanzania

Uganda

Operating Areas

Nature of Conflict Major Legal Issues

Nationwide (post April 2015) Kikuyu & Luo/others Elections (2007) Kisumu (2008) Ethnic Indian Mount Elgon (2005) Sabaot Land Def. Rift Valley (1992) Force Kalenjin & East Kenya/Eastleigh Kikuyu tribes Somali (& al Shabaab) Turkana North/Tana Local ethnic, pastoral Delta North & South Kivu, FDLR & Rwandan DRC National Congress (RNC) SPLM & SPLM-IO Equatoria Uamsho Zanzibar, Unguja & Pemba ADF Bugunda & Bunyoro LRA Karamojong

Western Uganda/ Semliki South Central Lake Albert Karamoja

Hutu-Tutsi

Use of force by police ICC/1,133 killed Political power Human rights Land violations Land Plots “Greater Somalia” 5k killed; 75k Water & grazing displaced ATPU/Human rights Hutu-Tutsi Terror attacks/ DRC-based Civil War Sectarian, esp. anti-western tourism Islamic, Electoral Oil development Rebel/terrorist Local pastoral

Refugees & famine Uses of force & flawed Zanzibari elections JATT/human rights Intermittent strife Largely destroyed Intermittent strife

Table 7-A East African participation in regional PKO

Country Mission

Authority

Current Major Legal Issues Force Levels

Burundi

AMISOM MINUSCA UNOCI

UNSCR 2093 UNSCR 2149 UNSCR 1528

5,400 858 28

Kenya

AMISOM UNAMID UNMISS

UNSCR 2093 UNSCR 1769 UNSCR 1996

4,112 115 1,053

1. Internal instability in Burundi, to include a May 2015 military coup attempt 2. Independence of deployed rule of law teams Domestic concerns on whether Kenyan participation in AMISOM contributes to domestic terror threats; participation in illegal charcoal trade with al Shabaab

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Table 7-A East African participation in regional PKO (cont.)

Country Mission

Authority

Current Major Legal Issues Force Levels

Rwanda

UNSCR 2100 UNSCR 1542 UNSCR 2149 UNSCR 1769 UNSCR 1996

147 153 850 3,410 1,047

MINUSMA MINUSTAH MINUSCA UNAMID UNMISS

1. llegations of RDF atrocities in the DRC, to include continued support for M23 2. Distrust of UN peacekeeping, largely as a result of 1994 genocide experience

Table 7-B East African participation in regional PKO

Country

Mission

Authority

Current Major Legal Force Levels Issues

South Sudan Tanzania

N/A UNIFIL UNMISS UNAMID MONUSCO AMISOM Anti-LRA UNMISS

N/A Annual UNSCR UNSCR 1996 UNSCR 2098 UNSCR 1925 UNSCR 2093 Bilateral: DRC-UGA UNSCR 2223

N/A 159 7 844 1,265 6,700 2,000 850

Uganda

N/A None reported

Corruption; equipment theft; sexual abuse of civilians

a The EAC Partner States support/participate in a wide range of international peacekeeping missions on the African continent. This table is limited to missions in which the EAC Partner States have 50 or more soldiers deployed. The source for this information on Uganda is the country profiles on the website for “Providing for Peacekeeping,” http://www .providingforpeacekeeping.org (last visited Sept. 3, 2017).

Chapter 3

Counterterrorism Law and Practice in Kenya 3.1

Introduction: Kenyan Law and Practice

Karen Blixen wrote her 1937 memoir Out of Africa as an autobiographical account of her 17-year experience running a coffee farm in colonial Kenya.1 While she no doubt intended the account as a tribute to her time living near Nairobi, there is also a strong sense of racism and tragedy with respect to the dispossession of the Maasai and Kikuyu “squatters” who worked “her” land. In fact, the “squatters” had lived and worked that very land for generations before she took ownership in 1914 and, under the existing colonial rules, were forced to work that land for her in order to earn enough money to pay the despised “hut tax.”2 Eventually, the farm fell on hard times with a drought, falling coffee prices and a major grasshopper infestation, and she was forced to sell it in 1931 to a big Nairobi-based company that planned to sub-divide it and lay out roads for building plots.3 Clearly, this caused a problem for “her” natives who would now be put off the land that had been their home for so long; still, despite the other challenges she faced with her impending return to Denmark, she worked through the colonial government and procured a new piece of land for them in the nearby Dagoretti Forest Reserve.4 But this dispossession and forced migration was not an isolated incident; it is but one example of a much larger pattern that has plagued Kenya’s ethnic groups to the present day, leaving lingering animosities and resentments over land with ethnic groups seeking to evict migrants from traditional lands. Indeed, Mzee Jomo Kenyatta, the Kikuyu leader of the dominant Kenya African National Union (KANU) and the country’s first prime minister, refused to redistribute farms upon independence to the landless population—many of whom were also Mau veterans who had waged a fierce guerilla campaign between 1952–60 against British colonial rule and considered themselves deserving of just rewards for their sacrifices.5 In fact, Kenyatta ruled out the 1  Karen Blixen, Out of Africa (1937). 2  Makua Mutua, Kenya’s Quest for Democracy: Taming Leviathan 54 (2008). 3  Blixen, Out of Africa, at 275–83. 4  Id. at 320–21. 5  Mutua, Kenya’s Quest for Democracy, at 56–58. See generally David Anderson, Histories of the Hanged: The Dirty War in Kenya and the End of Empire (2005) (examining the brutal war for independence between the Mau and Britain, including

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004389892_004

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nationalization of foreign assets and promised European farmers that he would respect land titles; this led to a major political split between Kenyatta who wanted to promote foreign investment and protect private property to promote economic growth and Luo leader Oginga Odinga who wanted to redistribute European-owned land to landless peasants.6 In December 1963, right after taking office as prime minister, Kenyatta immediately proceeded to transform Kenya’s constitutional order, with particular emphasis on changing the split of executive power between the Queen of England (represented by the Governor-General) as the head-of-state and the Kenyan prime minister as head-of-government.7 Kenyatta pushed through a 1964 constitutional amendment that consolidated executive power in the president, who would serve as head-of-state and government, as well as commander-in-chief of the armed forces.8 In addition, he prevailed upon the opposition political party (Kenya African Democratic Union, KADU) to dissolve and join KANU,9 permitting him to rule Kenya as an autocratic and corrupt president until his death on August 22, 1978, when he was succeeded by his Kalejin vice president Daniel arap Moi. President Moi then made a promise of continuity that became known as nyayo (footsteps), but immediately set about the replace Kenyatta’s Kikuyu inner circle with his own ethnic allies. In any case, Moi cemented his own autocratic rule even further after the August 1982 Air Force coup by means of a major overhaul of the security services, making changes in the cabinet and

war crimes and atrocities); Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (2005) (chronicling the story of the British detention of 1.5 million Kikuyu people in concentration camps, as part of a cruel counter-insurgency campaign to crush the Mau Mau). 6  Daniel Branch, Kenya: Between Hope and Despair, 1963–2011 10–11 (2011). This has also left lingering resentments among many Kenyans who were unable to reap the fruits of independence, causing considerable animosity between certain frustrated groups and the new political-economic elite. In 1977 Kenyan novelist Ngugi wa Thiog’o authored a blistering critique of the British colonial legacy and, as a result, Kenyatta’s “liberal” government had him jailed and held for one year without charges in a maximum security prison. Ngugi wa Thiog’o, Petals of Blood (2003). 7  Mutua, Kenya’s Quest for Democracy, at 61–62. The British government imposed this 1963 “Lancaster House” Constitution on Kenyan leaders during the protracted London-based negotiations. As Mutua points out, this Constitution effectively superimposed foreign values and structures over a colonial machinery that was “oppressive, alien, and illegitimate.” Id. at 58–61. 8  Id. 9  Id. at 61.

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senior officers he had inherited from Kenyatta.10 Finally, on December 3, 1991, largely as a result of pressure from foreign donor governments, Moi amended the Constitution to allow for multi-party elections.11 Naturally enough, the political opposition saw this as the first step towards demolishing a corrupt, authoritarian government.12 But it also created the opening for domestic violence with ethnic groups competing for political power and access to the “spoils” of government, as well as a push for majimboism that would allow local ethnic groups to control local land and rectify past injustices.13 In 2002, after winning re-election in 1992 and 1997—both of which had been marred by political violence on both sides—President Moi was constitutionally ineligible for reelection. Mwai Kibaki, who had been the Kikuyu leader of the Official Opposition in Parliament from 1992 to 2002, was then elected as President of Kenya. Initially, Kibaki held great promise for the Kenyan people; many believed that he would change the autocratic and corrupt culture that had entrenched itself in the presidency.14 The 2007 presidential election was 10   B ranch, Kenya: Between Hope and Despair, at 158–59. The key leaders in this coup attempt, Senior Sergeant Pancras Oteyo Akumu and Senior Private Hezekiah Ochuka, escaped to Tanzania where they were initially granted asylum but were later extradited back to Kenya; both were court martialed in 1984 for treason, sentenced to death, and subsequently executed. Pancras Oteyo Akumu v. Republic, Criminal Appeal No. 35 of 1984 (1985) eKLR. See also Haji Kariuki, Kenya: Ochuka: The Rebel Who Shocked the Nation, Daily Nation, Aug. 1, 1999, http://allafrica.com/stories/199908010050.html (last visited Aug. 6, 2017). On the other hand, some Kenyan officers were suspected of complicity in the coup and were unlawfully detained and subjected to torture, cruel, inhuman and degrading treatment; some officers have been able to recovery civil damages in recent years. See, for example, David Gitau Njau & 9 Others v. Attorney General, Petition No. 340 of 2012 (2013) eKLR. While the Kenyan Penal Code still recognizes a mandatory death penalty for murder, treason, the administration of unlawful oaths to commit capital offenses, and in certain robbery cases, Kenya has not carried out an execution in 30 years. Jeffrey Gettleman, Kenya Spares the Lives of Everyone on Its Death Row, N.Y. Times, Oct. 24, 2016, https://www.nytimes.com/2016/10/25/world/africa/kenya-kenyatta-death -penalty-reprieve.html?_r=1 (last visited Aug. 7, 2017). 11  Id. at 196–97. 12  According to the Corruptions Perception Index 2016, Kenya ranks 145/176 in the world. Transparency International, https://www.transparency.org/country/KEN (last visited May 31, 2017). 13  This Swahili word means “region” and has been commonly used in Kenya to refer to the devolution of political power to the regional level. Branch, Kenya: Between Hope and Despair, at 13. While there is theoretical merit in a federal structure of government, with the election and empowerment of local elites to make local decisions, majimboism also raises concerns about the need for transparency in local governments, the protection of individual and minority rights, and national anti-discrimination legislation. 14  Nic Cheeseman, The Kenyan Elections of 2007: An Introduction, J. of E. Afr. Stud. 166– 84 (2:2) (July 2008). See also Peter Reuter, Draining Development?: Controlling

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closely contested between Kibaki, as the leader of the Party of National Unity (PNU), and Raila Odinga, the Luo leader of the Orange Democratic Movement (ODM). Kibaki was declared the winner, claiming 4,584,721 votes, while Odinga reportedly received only 4,352,993 votes.15 Ethnic violence then erupted amid opposition claims of electoral malpractice and a failure to investigate the irregularities; this crisis eventually led to the deaths of 1,133 persons with 3,651 seriously injured,16 becoming “Kenya’s worst political violence since independence.”17 Kenya has faced significant domestic and foreign-based national security threats over the past decades. On one hand, Kenya has experienced episodic bouts of politically-motivated domestic violence (i.e., domestic terrorism) over the past 25 years; this violence has often been associated with conflicts in governance (e.g., the 1982 coup attempt), over land (e.g., 1991, in the Rift Valley), and disputed national elections (i.e., 1992 and 2007).18 In response, Flows of Illicit Funds from Developing Countries 437–441 (The World Bank, 2012) (examining the 2001–03 Anglo-Leasing affair involving 18 corrupt security contracts with a total value of about U.S. $1 billion spread over multiple government departments, including the Kenya Police and Navy). 15  Melizsa Mugyenyi, The Judiciary: Emerging Vanguard of Kenya’s New Constitution in Constitution Building in Africa, 276 (Jaap de Visser, et al., eds., 2015). 16  Id. 17  Solomon Ayele Dersso, More than Enacting a Just Constitution: Lessons from Kenya on the Challenges of Establishing a Rule-Based Democratic Politics, in Constitution Building in Africa 271–292 (Jaap de Visser et al., eds., 2015). The issues with respect to the divisive 2007 presidential elections have been documented extensively by the Independent Review Committee (i.e., the Kriegler Commission) that was formally gazetted by President Kibaki on Mar. 14, 2008, and the Commission of Inquiry into the Post-Election Violence (i.e. the Waki Commission), with its members appointed under the Kenyan Commissions of Inquiry Act, that began its work on May 23, 2008. Dialogue Africa Foundation, “Kriegler and Waki Reports (Summarised Version),” revised edition (2009), http://www.kas.de/wf/ doc/kas_16094-1522-2-30.pdf (last visited June 7, 2017). 18  The domestic violence in six of eight Kenyan provinces subsequent to the 2007 presidential election was of sufficient gravity that the prosecutor for the International Criminal Court (ICC) opened an official investigation, contending that “over 1,000 people were killed, there were over 900 acts of documented rape and sexual violence, approximately 350,000 people were displaced, and over 3,500 were seriously injured.” ICC, Situation in the Republic of Kenya, ICC-01/09, https://www.icc-cpi.int/kenya (last visited May 31, 2017). This investigation produced two main cases, one involving possible crimes against humanity and the second one involving offenses against the administration of justice. While the Court has dismissed some cases, it also referred Kenya to the Assembly of State Parties (ASP) for non-cooperation in the now terminated case against President Uhuru Muigai Kenyatta. Tom Maliti, Summary from Kenya Cases at the International Criminal Court, Int’l Just. Monitor, Sept. 23, 2016, https://www.ijmonitor.org/category/kenya -cases/ (last visited May 31, 2017). Not surprisingly, Kenya subsequently announced its

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the government has often used repressive counterterrorism tactics and even violent criminal gangs (e.g., the Mungiki)19 to crush protests in Nairobi and the Rift Valley.20 On other hand, Kenya has also faced several foreign-based national security threats, with the most serious threats arising from Somalia, ethnic Somalis—some of whom are Kenyan citizens while others are Somali citizens—living in Kenya, and foreign terrorist organizations such as al Qaeda. Thus, Kenya has a unique and challenging problem with respect to counterterrorism law and practice. 3.2

The Administration of Justice: Courts, Statutes and Issues

In August 2010, after 20 years and multiple, failed attempts at constitutional reform, the Kenyan people voted in a referendum to approve a new constitution21—the first major reform since the 1963 “independence” (Lancaster) Constitution and the December 1964 amendment that created a presidential form government.22 The 2010 Constitution recognizes a threepart national structure involving a Parliament, a national executive and a judiciary, as well as “devolved” structures at the county level that include plans to withdraw from the ICC, claiming that the Court unfairly targets Africa. Dana Sanchez, Kenya Follows South African ICC Withdrawal. Is This All About Business For SA?, AFK Insider, Oct. 25, 2016, http://afkinsider.com/134434/kenya-follows-south-african -icc-withdrawal-is-this-all-about-business-for-sa/ (last visited May 31, 2017). 19  B BC News, Profile: Kenya’s Secretive Mungiki Sect, May 24, 2007, http://news.bbc.co.uk/2/ hi/africa/6685393.stm (last visited July 27, 2017) (explaining that the group is an organized criminal gang responsible for grisly murders, fraud, kidnapping, and robbery, to include controlling public transport routes, water and electricity in the city slums). 20  Branch, Kenya: Between Hope and Despair, at 272–77. 21  The 2010 Constitution was approved by the electorate in a national referendum on August 4, 2010, with 67 percent of the people voting in favor of the draft Constitution. Mugyenyi, The Judiciary: Emerging Vanguard of Kenya’s New Constitution, at 166. 22  Kenya has often been described a politically polarized nation with ethnic groups competing for resources under successive autocratic and corrupt governments (i.e., under Jomo Kenyatta from 1964–78, Daniel arap Moi from 1978–2002, and Mwai Kibaki from 2002–13). Branch, Kenya: Between Hope and Despair, at 103–5, 217–18, and 252–57. Indeed, the competition among ethnic groups for political power can be described as zero-sum game with dominant groups seeking the use of state resources for their own benefit. See generally Michela Wrong, It’s Our Turn to Eat: The Story of a Kenyan Whistle-Blower (2009). According to Makua Mutua, a prominent Kenyan-American law professor and a delegate to the 2003 National Constitutional Conference, there has been deep disagreements among Kenyans on issues such as the nature of presidential power, the propriety and role of Kadhi (Muslim) courts, and the devolution of state power to local authorities. Mutua, Kenya’s Quest for Democracy, at 185–204.

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legislative assemblies and executive structures.23 This new structure created an institutionalized system of checks and balances with limitations on presidential power, with a bicameral Parliament with oversight authority over the executive branch, increased autonomy at the regional level, and a judicially enforceable Bill of Rights.24 This 2010 Constitution is a noteworthy improvement over the 1963 version, although there have been some acrimonious problems in implementation.25 In general terms, the 2010 Constitution is a marked improvement in the structures, processes, and authorities necessary for the administration of justice in Kenya. First, the 2010 Constitution provided for an independent judiciary, one that is “subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”26 The Constitution also created a new Supreme Court as the most superior court in the nation, with that Court having exclusive original jurisdiction to decide disputes involving presidential elections,27 and appellate jurisdiction in cases involving the interpretation or application of the Constitution28 as well as over any other case in which the Court of Appeals “certifies that a matter of general public importance is involved.”29 Like the 1963 Constitution, the new Constitution retained both the Court of Appeal with jurisdiction to hear cases from the High Court, as well as any other court or tribunal created by 23   T he Constitution of Kenya, 2010, art. 1. 24  Dersso, More than Enacting a Just Constitution, supra n.17, at 280–81. 25  See, for example, Linda Musumba, Pre-Testing Proposed Constitutions through Intelligence Scenario-Building as a Means of Promoting Their Viability: A Case Study of Kenya, in Constitution Building in Africa 75–103 (Jaap de Visser, Nico Steytler et al., eds., Nomos Verlagsgesellschaft, 2015) (examining post-promulgation challenges with Kenya’s 2010 Constitution with respect to the eligibility of Uhuru Kenyatta and William Ruto to stand for election with charges against both pending in the ICC, the implementation of constitutional provisions with respect women’s representation in Parliament, and the 2013 petition filed by Raila Odinga claiming irregularities in the presidential electoral process). See also Dersso, More than Enacting a Just Constitution, supra n.17, at 282–89 (reviewing recent problems involving parliamentary salaries, the introduction of 2013 legislation to remove certain officials from the list of designated state officials requiring mandatory vetting, and the elimination of the requirement that state officials submit a mandatory declaration of income, assets and liabilities). See generally Maya Gainer, Transforming the Courts: Judicial Sector Reforms in Kenya, 2011–2015 (2015),” Innovations for Successful Societies, (Princeton University Case Study, http://successfulsocieties.princeton.edu, last visited Aug. 7, 2017) (analyzing issues involved in transforming a judiciary that had been known for decades by its inefficiency, corruption and political bias). 26   C onst. of Kenya, 2010, art. 160(1). 27  Id. art. 163(3)(a). 28  Id. art. 163(4)(a). 29  Id. art. 163(4)(b).

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Parliament,30 and a High Court with unlimited criminal and civil jurisdiction.31 The 2010 Constitution also authorizes the creation of subordinate courts in the form of Magistrates Courts,32 military courts martial, and Kadhis’ (Muslim) courts.33 Finally, the 2010 Constitution provides for greater judicial autonomy with respect to finances34 and the security of tenure.35 Nonetheless, there are continuing concerns about judicial corruption and the capacity of the Judicial Service Commission to hear cases.36 Second, the Constitution guarantees “every person”37 certain individual liberties in a Bill of Rights (Articles 19–59), to include a right to life,38 equality and freedom from discrimination,39 protection from slavery, servitude and forced labor,40 the freedom of conscience, religion, belief and opinion,41 the right of assembly, demonstration, and picketing and petition.42 With respect 30  I d. art. 164. 31  Id. art. 165. See generally Const. Rep. of Kenya, 1963 (as amended to 2008) (repealed), art. 60–67. 32  Kenya has been using senior police officers as prosecutors in the Magistrate Courts, appointed under Article 85 of the Criminal Procedure Code; this practice of using non-lawyers from a corruption-ridden police service is troubling. However, the government has been working to replace police prosecutors with qualified lawyers, a move that should help ensure that the defendants receive a fair trial, as well as help improve overall trial performance (i.e., this help reduce the number of cases lost at trial based upon an insufficiency of the evidence). Juliet Onyango, Kenya to Eliminate Police Prosecutors as part of Judicial Reforms,” Zegabi, Jan. 2, 2014, http://www.zegabi.com/ articles/6593, (last visited Aug. 8, 2017). 33   C onst. of Kenya, 2010, art. 169. While the Constitution lacks any specificity with respect to military law, Article 169(2) provides that “Parliament shall enact legislation conferring jurisdiction, functions and powers on the courts established under clause (1).” 34  Id. art. 173. 35   Article 166 establishes the qualifications for judicial office, Article 167 imposes a requirement for mandatory retirement at age 70, and Article 168 provides for the removal of judges from office—but with such removal action initiated by the Judicial Service Commission rather than the executive branch. 36   D eutsche Welle, Corruption Scandal in Kenyan Judiciary,” Feb. 24, 2016, http://www .dw.com/en/corruption-scandal-in-kenyan-judiciary/a-19071166 (last visited June 7, 2017) (noting that the “credibility of the Kenyan judiciary had been in question for decades” and quoting the Kenya’s Chief Justice as saying that the Judicial Service Commission was “riddled with bribery”). 37  Chapter Three (articles 12–18) outlines the detailed rights of Kenyan citizens, indicating a broader sweep than for the Bill of Rights. 38   C onst. of Kenya, 2010, art. 26. 39  Id. art. 27. 40  Id. art. 30. 41  Id. art. 32. 42  Id. art. 37.

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to due process rights, Article 49 provides for the rights of arrested persons,43 Article 50 provides for a fair trial, and Article 51 provides the rights of persons detained, held in custody or imprisoned. The Bill of Rights also include certain provisions that should help persons, persons acting on behalf of a group, and associations in enforcing fundamental rights and freedoms, such as Article 35 that gives every citizen a right to information held by the state or “by another person and required for the exercise or protection of any right or fundamental freedom.” Article 59 creates the Kenya National Human Rights and Equality Commission with broad powers to promote human rights and to “monitor, investigate and report on the observance of human rights.”44 Third, the 2010 Constitution strengthens the role and authority of the judiciary with respect to human rights issues. In all cases, Article 23(1) provides that the “High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights,” as well as grant judicial relief by declaration, injunction and/or judicial order. Finally, the Constitution recognizes certain non-derogable rights to include freedom from torture and cruel, inhuman or degrading treatment or punishment;45 freedom from slavery or servitude; the right to a fair trial; and the right to an order of habeas corpus.46 43  Article 49 provides for the right to be informed of the charges, the right to remain silent, the right to communicate with an advocate, the right against self-incrimination, and the right to be brought before a magistrate within 24 hours after arrest (or on the next court day, if the 24 hours ends outside ordinary court hours). After that first court appearance, the person has the right to be released on bail absent compelling reasons for pre-trial detention. 44  Id. art. 59(d). 45  Kenya has enacted a 2016 Prevention of Torture Act, effective Apr. 20, 2017, that criminalizes torture and cruel, inhuman or degrading treatment or punishment, punishable by a fine and a maximum of 25 years’ imprisonment. Article 9(1) provides that: “Any information, confession or admission obtained from a person by means of torture or cruel, inhuman or degrading treatment or punishment is inadmissible evidence in any proceedings.” Id. Article 10 provides: “There shall be no immunity or amnesty granted to a person accused of the offence of torture or cruel, inhuman or degrading treatment or punishment.” Id. 46   C onst. of Kenya, 2010, art. 25. In one habeas corpus action brought by the brother of an alleged al Shabaab supporter who had been arrested by the police during a February 2014 raid on a Mombasa mosque, the police acknowledged that the subject had been arrested but claimed that he had escaped from custody before he could be booked at a local police station. The trial judge noted that the police had submitted insufficient affidavits explaining the situation and had, therefore, failed to meet its burden of showing that the subject was no longer in police custody. The court then ordered further proceedings with the physical presence in court of the appropriate police officials. Masoud Salim Hemed & Another v. Director of Public Prosecution & 3 Others, Petition No. 7 (2014),

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Fourth, the 2010 Constitution also contains several important national security provisions, outlining certain important principles, defining organs and structures, and establishing the Kenya Defence Forces, the National Intelligence Service (NIS), and the National Police Service.47 Article 58, combined with Article 132(4)(d), gives the President the limited authority to declare a state of emergency only when “(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared.”48 A presidential declaration can be prospective only and is valid for 14 days, unless extended by Parliament. In December 2014, in response to multiple recent and serious terrorist attacks, to include two attacks by al-Shabaab in Mandera County on November 22 and December 2 that left a total of 64 persons dead,49 the Kenyan parliament passed the Security Laws (Amendment) Act of 2014 (the SLAA).50 While this statute attempted to amend a range of 22 Kenyan statutes, its passage illustrates both the controversial nature of the counter­ terrorism legislation in Kenya, as well as the role of the judiciary in the eKLR. Thus, the trial court took appropriate steps to test the veracity of the police claims with respect to the alleged escape, particularly in light of the petitioner’s claim that the police could not be trusted to conduct an honest investigation into a presumed murder. Id. at 4–5. In general terms, Kenyan human rights groups have used the writ of habeas corpus as a means of challenging the arbitrary arrest, detention without trial, forcible transfer and enforced disappearance of terror suspects, but have often been stymied by the government’s decision to transfer someone abroad and effectively moot the court’s decision. Mutuma Ruteere & Mikewa Ogada, Regional Challenge, Local Response: Civil Society and Human Rights in US-Kenya Counter-Terrorism Cooperation, in Civil Society Under Strain: Counter-Terrorism Policy, Civil Society and Aid Post-9/11 35–41 (Jude Howell and Jeremy Lind, eds., 2010). 47   C onst. of Kenya, 2010, art. 239. Article 238(2) subordinates the security services to civil control and emphasizes that “national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms….” 48  Id. art. 58. 49  Gabe Joselow, Top Kenyan Officials Sacked After Massacre, VOA News, Dec. 2, 2014, https://www.voanews.com/a/gunmen-kill-northeastern-kenya-mandera/2542110.html (last visited July 19, 2017). 50   T he Security Laws (Amendment) Act, (No. 19 of 2014). See also Kenya National Human Rights Commission, The Error of Fighting Terror with Terror: Preliminary Report of KNCHR Investigations on Human Rights Abuses in the Ongoing Crackdown against Terrorism, Sept. 2015, KNCHR (examining “the high-handed and extralegal security measures” that were adopted by the government in containing the threats posed by terrorists and terror groups), http://www.knchr.org/Portals/0/CivilAndPoliticalReports/ Final%20Disappearances%20report%20pdf.pdf (last visited July 19, 2017).

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interpretation and application of the 2010 Constitution. The SLAA was passed by Parliament on an expedited basis, significantly reducing the opportunity for public participation and even occasioned by acrimonious debate and disorderly conduct in the National Assembly.51 In fact, the SLAA was passed by Parliament on December 18, signed by President Uhuru Kenyatta on December 19, went into effect on December 22, and was challenged in court by the Coalition for Reform and Democracy (CORD) and the Kenya National Commission of Human Rights (KNCHR)52 on December 23.53 On January 2, a Kenyan High Court judge suspended implementation of eight provisions of the SLAA and formed a three-judge panel to examine its constitutionality. In January 2015, the High Court temporarily suspended the implementation of the contested provisions of the Act, determining that the provisions raised constitutional concerns.54 In the end, the High Court upheld multiple sections of the new law, while holding other sections unconstitutional, demonstrating considerable judicial independence. The High Court examined whether multiple provisions of the SLAA violated fundamental rights and freedoms guaranteed under the 2010 Constitution. The court noted that the Constitution is “the supreme law of the Republic,”55 binding upon all persons and at both levels of government. However, the court also noted that, except for four rights defined in Article 25, that the rights guaranteed under the Constitution were not absolute.56 The court then set 51  Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others Petition 628, 630 of 2014 & 12 of 2015 (Consolidated) eKLR, paras. 27–35. 52  The KNCHR is a commission established under Article 59 of the 2010 Constitution. The commission is tasked to promote human rights, to monitor and report on human rights observances in public and private institutions, to receive and investigate complaints of human rights abuses and to take steps to secure appropriate redress, “to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights,” and to investigate state conduct. The KNCHR also has the legal standing, as an independent commission created by the 2010 Constitution, “to lodge a petition seeking interpretation of legislation that is deemed to violate or threaten violation of the human rights and fundamental freedoms of individuals which it is constitutionally mandated to safeguard.” Thus, the KNCHR can bring legal actions alleging violations of the Constitution by the State or other State organs. CORD & 2 Others v. Republic of Kenya, supra n.51, paras. 130–136. See also Kenya National Commission on Human Rights Act, No. 14 of 2011 (Revised Edition 2012). 53   C ORD & 2 Others v. Republic of Kenya, supra n.51, paras. 15–21. 54  Id. paras. 22–26. 55  Id. para. 203. 56  Id. paras. 206–207 (explaining that the 2010 Constitution provided for four non-derogable rights: freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; the right to a fair trial; and the right of habeas corpus).

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forth the test, provided for in Article 24, to determine the constitutionality of a limitation on fundamental rights by: requiring that such limitation be reasonable and justifiable in a free and democratic society, and that all relevant factors are taken into account, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the need to balance the rights and freedoms of an individual against the rights of others, and the relation between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose.57 The court then examined the limitations imposed by the bill on the freedom of expression and the media, the right to privacy, the right to a fair trial, the entitlement to citizenship and registration of persons, and the right to the freedom of movement. The court also examined the constitutionality of several amendments with respect to the appointment and tenure of the National Intelligence Service director and the Inspector General of Police. In a lengthy and well-reasoned opinion, the High Court upheld certain sections of the SLAA, while also finding that other section were unconstitu­ tional infringements on protected rights. Initially, the court held that certain limitations on broadcasting and the publication of information concerning security investigations were unjustifiable, “for being too vague and imprecise, and for not having any rational nexus with the intended purpose….”58 Second, the court held that the provisions amending the 2012 National Intelligence Service Act59 with respect to special investigations involving search and seizure—as well as electronic surveillance—were constitutionally valid limitations on fundamental rights based upon the warrant requirements imposed by law.60 Third, the court held that the challenges to the extended remand of a suspect (allowing a person to be held under a court-approved period of up to 90 days) 57  Id. para. 213. 58  Id. para. 279. 59  Republic of Kenya, The National Intelligence Service Act, 2012. See also Bart Joseph Kibati, Memoirs of a Kenyan Spymaster (2016) (providing a history of Kenya’s intelligence community based upon the author’s 27-year career as a Special Branch officer). In one respect, Kibati misses an important human rights issue in his criticism of the 2010 legislation that was passed by Parliament revoking the 1972 Indemnity Act that protected public officers and members of the armed forces with respect to certain acts committed during the 1963–67 Shifta War. In other words, government personnel should be held accountable for violations of non-derogable human rights obligations— notwithstanding either prior Somali violations of international and/or municipal law or any purported claim of an existential threat to Kenya. Id. at 239–46. 60   C ORD & 2 Others v. Republic of Kenya, supra n.51, para. 297.

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and the withholding of certain evidence from the accused violated the fair trial rights guaranteed under the Constitution.61 Fourth, the court upheld the provisions with respect to the cancellation of registration of a person based upon misrepresentation or concealment of material facts, fraud, forgery, or other justifiable cause.62 Fifth, the court upheld the restrictions imposed upon the movement of refugees in Kenya (namely, restricting the movement of refugees to designated camps unless issued a movement pass by the Refugee Camp Officer), but found that the government’s cap of 150,000 refugees who were allowed the country was unconstitutional.63 Here, the court noted that Kenya had obligations under international law with respect to the nonrefoulment of certain persons64 and that—in view of the fact that the country’s current refugee population was already between 450,000 to 583,000 persons— the effect of the law would be expulsion of some 430,000 persons.65 Last, the court upheld amendment that changed the process for the appointment of the National Intelligence Service director and the Inspector General of Police, but invalidated the creation of a National Police Service Board.66 The 2012 Prevention of Terrorism Act, with its 2015 revisions, is a compre­ hensive counter-terrorism law that gives precise definitions for common terms, outlines terrorism offenses with appropriate penalties, provides for the designation of entities as a terrorist organization subject to certain controls (a specified entity order), and authorizes the use of certain investigatory powers by police officers. Article 2, for example, defines “terrorist act” as an act or threat of action—67 (a) which— (i) involves the use of violence against a person; (ii) endangers the life of a person, other than the person com­ mitting the action; (iii) creates a serious risk to the health or safety of the public or a section of the public; (iv) results in serious damage to property; 61  Id. paras. 309–383. 62  Id. para. 393. 63  Id. para. 403. 64  The court explained that the 2010 Constitution provides that the general rules of international law formed part of Kenyan law and that any treaty or convention ratified by Kenya formed part of Kenyan law. Id. para. 413 (citing the 2010 Constitution, Articles 2(5) and 2(6)). 65  Id. para. 427. 66  Id. paras. 433–455. 67  Republic of Kenya, The Prevention of Terrorism Act (No. 30 of 2012), art. 2.

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(v) involves the use of firearms or explosives; (vi) involves the release of any dangerous, hazardous, toxic or radioactive substance or microbial or other biological agent or toxin into the environment; (vii) interferes with an electronic system resulting in the disruption of the provision of communication, financial, transport or other essential services; (viii) interferes or disrupts the provision of essential or emergency services; (ix) prejudices national security or public safety; and (b) which is carried out with the aim of— (i) intimidating or causing fear amongst members of the public or a section of the public; or (ii) intimidating or compelling the Government or international organization to do, or refrain from any act; or (iii) destabilizing the religious, political, Constitutional, economic or social institutions of a country, or an international organization: Provided that an act which disrupts any services and is committed in pursuance of a protest, demonstration or stoppage of work shall be deemed not to be a terrorist act within the meaning of this definition so long as the act is not intended to result in any harm referred to in paragraph (a)(i) to (iv); The statute criminalizes a range of offenses, to include the commission of a terrorist act, possession of property for the commission of terrorist acts, the support and facilitation of terrorist acts, the harboring of terrorists, possession of weapons for terrorist purposes, and membership in terrorist groups. While this comprehensive statute is an important step forward in Kenya’s fight against terrorism, it has also been criticized by human rights groups based upon claims that it uses vague and overbroad terminology, that it sanctions activities that may have a tenuous connection to terrorism, that it criminalizes of membership in specified groups, that it lacks of due process guarantees in some areas, and that it imposes overly severe punishment for some offenses.68

68   Open Society Foundations, “We’re Tired of Taking You to Court”: Human Rights Abuses by Kenya’s Anti-Terrorism Police Unit 61–66 (2013).

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The 2012 Prevention of Terrorism Act, on the balance, represents an improvement over the earlier investigation and prosecution of terrorism offenses under the Penal Code.69 First, the Penal Code criminalizes many— but not necessarily all—of the constitutive acts that are typically involved in a terrorism activities. Thus, the code criminalizes treason, promoting warlike undertakings, unlawful oaths to commit capital offenses, unlawful assembly, possession of firearms,70 incitement to violence, unauthorized wear of military uniforms,71 murder, assault, kidnapping, theft, robbery, and forgery. The code does so without ever using words such as “terrorist,” terrorism,” or “terrorist act.” Second, the Terrorism Act adds offenses such as the facilitation of terrorist acts (aiding and abetting liability), the harboring of terrorists, the provision of weapons to terrorist groups, radicalization, incitement to commit terrorist acts, membership in proscribed groups, and the financing, recruiting and training of terrorists. In some cases, the Prevention of Terrorism Act provides for greatly enhanced punishments. Thus, kidnapping under the Penal Code is punishable by a 7–10 year prison sentence,72 but kidnapping—as hostage taking—is punishable under the Terrorism Act by a term not to exceed 30 years.73 Third, the Terrorism Act has new provisions that should be helpful in the counter-terrorism fight. Here, the act provides statutory authorization for court-approved electronic surveillance, it provides for the forfeiture of private property used for or in connection with a terrorist act, it gives the Commissioner for Refugee Affairs the power to refuse a refugee application if there are “reasonable grounds to believe that the applicant has committed or is 69  In 2003, the government tabled a 2003 Suppression of Terrorism Bill in Parliament, but the proposed bill generated considerable criticism from the human rights community and eventually lapsed as a result of public pressure. The 2012 act, drafted in response to recent attacks by al Shabaab, was a marked improvement over its predecessor and was written with greater attention to civil liberty concerns. Standard on Sunday Team, Kibaki Signs Historic Anti- Terrorism Bill, Standard (Nairobi), Oct. 14, 2012, https://www .standardmedia.co.ke/article/2000068354/kibaki-signs-historic-anti-terrorism-bill (last visited Aug. 7, 2017). 70  See, for example, Abdullahi Harun Aden & Another v. Republic, Criminal Appeal No. 7 of 2011 (2014) eKLR (involving two former Somali soldiers who hid weapons and ammunition in Garissa County; both received 10-year prison sentences). This same case, if it had been prosecuted under Article 12A of the 2012 Terrorism Act, could have resulted in 25-year prison sentences for both defendants. 71  The unauthorized uses of uniforms are also proscribed by the 2012 Official Secrets Act, art. 4 (criminalizing the wear of military or police uniforms, as well as the use of false identity documents, for the purpose of gaining admission to a prohibited place). 72  Republic of Kenya, The Penal Code (revised edition 2012), articles 254–263. 73  Republic of Kenya, The Prevention of Terrorism Act (No. 30 of 2012), art. 28.

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involved in the commission of a terrorist act,”74 and it creates a Compensation of Victims of Terrorism Fund. Most important, this framework law has domesticated Kenya’s obligations under UN Security Council Resolution 1373 and 2178, as well its obligations under various counterterrorism conventions to which it is a State Party.75 Kenya also has several other statutes that criminalize acts can facilitate terrorism. The 2010 Counter-Trafficking in Persons Act explicitly domesticates Kenya’s obligations under the Palermo Convention.76 This comprehensive statute criminalizes acts that promote human trafficking, the acquisition of false travel documents, the facilitation of entry and exit from the country, and trafficking in persons for organized crimes. This statute also imposes stiff prison sentences with a minimum sentence of 15 years. This is important because the International Organization for Migration (IOM) reports that the sex industry in Kenya draws women from regional countries77 and that it serves as a transit route for Ethiopian women being trafficking to Europe.78 While it can be difficult to quantify the severity of the human trafficking problem, as well as 74  Id. art. 48. 75  Kenya has imposed statutory and regulatory controls over entry into and departure from the country. The 2011 Kenya Citizenship and Immigration Act outlines the requirements for citizenship, residency, and the right to a passport and other travel documents. This statute also implements the East Africa Community passport. Certain persons are inadmissible for entry, to include persons involving in arms, drug and human trafficking, money laundering, piracy, sexual exploitation and sex crimes, and terrorism. Article 33(1)(i) explicitly bars entry to “a person in respect of whom there is reasonable cause to believe that he or she is engaged in, facilitates or is sympathetic to acts of terrorism or terrorist activities directed against Kenya or detrimental to the security of Kenya or any other state….” Id. art. 33(1)(i). Under the 2012 Kenya Citizenship and Immigration Regulations, every ship, aircraft, or other carrier is obligated to provide the immigration officer at the point of entry with the names of all passengers and each passenger is obligated to complete an entry form. Id. art. 16. See also table 4-A, infra (Compliance with UN Security Council Resolution 1373, Municipal Legislation), and table 4-B, infra (Compliance with UN Security Council Resolution 2178, Municipal Legislation). 76   C ounter-Trafficking in Persons Act (No. 8 of 2010). Kenya has reportedly made significant progress in the elimination of human trafficking, to include the creation of a Counter-Trafficking in Person Advisory Committee, a substantial increase in criminal prosecutions, and the revocation of certificates to private employment recruitment agencies, and a new process managed by the Ministry of Labor for agencies sourcing jobs abroad. See generally U.S. Dep’t of State, Trafficking in Persons Report (July 2015), available at: https://www.state.gov/documents/organization/245365.pdf (last visited Aug. 20, 2017). 77  International Organization for Migration, Human Trafficking in Eastern Africa: Research Assessment and Baseline Information in Tanzania, Kenya, Uganda, and Burundi (2008). 78  Id. at 14.

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its connections to terrorism, Kenya does have a large and vulnerable refugee population—many of whom lack viable economic prospects—who would be susceptible to exploitation. This highlights the need for strict laws, as well as enforcement, with respect to identity documents and borders controls. In addition, Kenya has a 2015 Registration of Persons Act that requires all citizens to register upon age 18, as well as on return from abroad, and upon registration, a person receives an identity card with his/her photograph and fingerprints.79 A person must produce this document when any “authority to whom a person, required to be registered under this Act, applies for the grant of any licence, permit or other document, or for the exercise of its lawful or judicial functions.”80 This act criminalizes the failure to register, the giving of false information under the act, unlawfully depriving another person of his identity document, the alteration or misuse of a card, and the unlawful possession of a card belonging to another person. Violations of this statute are treated as criminal offenses subject to imprisonment for 2–18 months and the imposition of a fine. Kenya also separate statutes that criminalize the illegal manufacture, possession and use of explosives, as well as firearms. First, Article 29 of the Explosives Act provides: Any person who makes or knowingly has in his possession or under his control any explosive, in circumstances which give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence and liable to imprisonment for a term not exceeding seven years, and the explosive shall be forfeited.81 This is a useful statute that is broad enough to encompass a wide range of improvised explosive devices commonly used by terrorist groups throughout the region.82 79   R egistration of Persons Act (Revised 2015). 80  Id. art. 10(1). 81   E xplosives Act (Revised 2016), art. 29. 82  Nonetheless, there are apparently problems with the application of this statute to the manufacture and possession of grenades. In one case, the defendant was convicted of the possession of two Chinese hand “grenades,” but, on appeal, the High Court in Mombasa found that the government had failed to establish that the two grenades met the statutory threshold for illegal explosives based upon a lack of evidence that the grenades were, in fact, explosives that had been manufactured for other than permitted purposes

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Second, the 2014 Firearms Act proscribes the purchasing and possession of firearms and ammunition without a firearms certificate, with violations punishable by imprisonment from 7–15 years.83 In addition, the statute also criminalizes the possession of certain “specified firearms,” such as an AK-47 assault rifle, Heckler & Koch (H&K) G3 .308 machine gun, Heckler & Koch MP5 9 mm machine gun, or other weapons specified by the Minister and published in the Gazette. Offenses involving specified firearms are punishable by life imprisonment.84 Persons must hold a valid firearms certificate—including conditions of possession—from a state licensing officer; such renewable certificates are valid for a one year period and must specify the number and types of firearms that the individual may possess.85 On one hand, a state licensing officer has very broad authority to grant/deny a license application; the statute provides that “a firearm certificate shall not be granted to a person whom the licensing officer has reason to believe to be prohibited by or under this Act from possessing a firearm, or to be of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm….”86 On the other hand, the licensing officer can also revoke a certificate at a date if the person possessing a firearm “is of intemperate habits or unsound mind, or is otherwise unfit to be entrusted with a firearm,” or fails to produce a firearms certificate upon request (i.e., if the licensing official wanted to modify its conditions of use).87 3.3

The Terrorism Threat to Kenya: Domestic and Foreign Actors

Kenya likely confronts the most diverse and difficult range of national security threats in the East African Community. Kenya faces four general terrorist threat vectors, including al-Shabaab elements targeting Kenyans in response to Kenyan military operations in Somalia; the use of the country as a support base for Kenyan nationals and foreign fighters, as well as a transit point for foreign or that the grenades exceeded the weight authorized by law. The court explained that this “standard of proof is so high, and is necessary, so that ‘toys’ are distinguished from ‘war machines.’” Wendo Idi Zuberi v. Republic, Criminal Appeal No. 186 (2015) eKLR, at 9. The court also found that the prosecution witnesses contradicted each other, as well as their own previously recorded statements, and there were other shortcomings in the government’s investigation of the case. 83   F irearms Act (Revised 2015). 84  Id. art. 4A. 85  Id. art. 5(3) and (4). 86  Id. art. 5(2). 87  Id. art. 7.

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nationals passing through, who provide support al-Shabaab in Somalia;88 the targeting of western interests (e.g., the 1998 attack on the U.S. Embassy in Nairobi) by al Qaeda and other foreign-based groups; and attacks by domestic (ethnic) groups over social grievances such as land rights, religious issues and political rights. The 2010 Constitution, with its devolution of political power to local authorities and recognition of religious courts, may—perhaps in the long-term—answer some grievances and reduce some political tensions.89 But, with the large Kenyan Somali and Somali refugee population90 in Kenya that is spread over the eastern third of the country and has a large presence in Nairobi,91 the most dangerous terrorist threats to the country are undoubtedly 88  Peter Bergen, Al-Shabaab’s American Allies, CNN, Sept. 24, 2014, http://www.cnn .com/2013/09/23/opinion/bergen-al-shabaab-american-ties/ (last visited July 19, 2017). 89   Ngala Chome, Violent Extremism and Clan Dynamics and in Kenya (United States Institute for Peace, 2016) (examining the increased political competition, as well as conflict among the ethnic Somali clans with cross-border ties, at the local level in Garissa, Wajir, and Mandera counties—driven by the political devolution). 90  As of Nov. 30, 2014, the KNCHR claimed that the refugee population was 583,278. CORD & 2 Others v. Republic of Kenya, supra n.51, para. 39. In May 2016 the Kenyan government attempted to end its hosting of Somali refugees by disbanding the Department of Refugee Affairs and by preparing a mechanism for the closure of the two main refugee camps (Kakuma and Dadaab) within the shortest time possible. The government said that its decision was based upon a cessation of circumstances giving rise to the refugee status (a tripartite agreement with the Somali government) and the emergent security challenges and economic costs associated with hosting the refugees. However, the High Court held that the government’s decision violated the principle of non-refoulement under international refugee law, that the decision was unconstitutional in that it made no provision for an examination of individual circumstances, that it violated the constitutional rights of Somali refugees (i.e., the rights to life and dignity), that there was no evidence to support the claim that a fundamental change in circumstances in Somalia warranted the return of the refugees, and that an executive branch official could not disband a cabinet department that had been created by an Act of Parliament. Kenya National Commission on Human Rights & Another v. Attorney General & 3 Others, Constitutional Petition No. 227 of 2016 (2017) eKLR. 91  Human Rights Watch, Kenya: Halt Crackdown on Somalis, Apr. 11, 2014, https://www.hrw .org/news/2014/04/11/kenya-halt-crackdown-somalis (last visited July 19, 2017). Nairobi’s Eastleigh suburb—with a population of 350,000 persons—is predominately Somali and is known as “Little Mogadishu.” Amanda Sperber, Little Mogadishu, Under Siege, Foreign Pol’y, Apr. 14, 2015, http://foreignpolicy.com/2015/04/14/kenya-shabab-somalia-garissa -kenyatta/ (last visited July 27, 2017). Lauren van Metre, a researcher at the United States Institute for Peace, identified six elements to the violent extremist threat in Eastleigh: high unemployment and financial incentives, as well as heavy-handed police actions; radical messaging by itinerant preachers who have easy access to the highly transient community; the presence of “sleeper cells” (i.e., dormant members of a terrorist group awaiting instructions); tensions between the Muslim and Christian communities; the selfimposed isolation of the Somali refugee community, with many people feeling that the

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Somalia-oriented.92 Kenya has, therefore, a requirement for a comprehensive range of domestic counterterrorism laws, as well as a need for sustained international cooperation with respect to the investigation and prosecution of persons suspected of crimes in Kenya or abroad. In any case, the Kenyan government has been hampered by its unstable neighbors, an alienated Muslim population with a large influx of refugees, problems with land tenure, corrupt officials, shortcomings in police capacity, and the ready availability of illicit small arms and ammunition, all of which complicate its counterterrorism fight. The first and likely most dangerous national security threat to Kenya involves the Somalia-based Harak al-Shabaab al-Mujahideen, commonly known as al Shabaab, and its supporters, perhaps crossing into Kenya amid Somali refugees over the porous border or by boat along the coast, who can then find safe haven in the large and predominately Sunni Muslim population living in the now-former Eastern, Northeastern and Coastal Provinces.93 refugees move about with limited government oversight; and religious schisms between more moderate indigenous Muslims and less tolerant newcomers, often Somali, which can impair the formation of cohesive approaches to preventative actions. Lauren Van Metre, Community Resilience to Violent Extremism in Kenya 28–29 (United States Institute for Peace, 2016). See also Neil Carrier, Little Mogadishu: Eastleigh, Nairobi’s Global Somali Hub (2017) (offering a portrait of Somali life in Nairobi). 92   A l Jazeera, Al-Shabab threatens more attacks in Kenya after Garissa, Apr. 4, 2015, http:// www.aljazeera.com/news/2015/04/kenya-garissa-al-shabab-150404064958471.html (last visited July 19, 2017) (noting that al-Shabaab, the Somali armed group that carried out a deadly attack on the Kenyan university in Garissa that killed 148 people, then threatened to stage more attacks in the country; the group warned Kenyans that their cities would “run red with blood”). 93   K NCHR, Report on Securing National Security & Protection of Human Rights: A Comparative Analysis of the Efficacy of Counter Terrorism Legislation and Policy (Nairobi, undated), at xii-xiv, available at http://www.knchr.org/ (last visited July 22, 2017). According to the 2009 census by the Central Bureau of Statistics, Kenya had an overall population of approximately 38,610,097 persons, with 5.7 million living in the Eastern Province, 2.3 million living in the Northeastern Province, and 3.2 million living in the Coastal Province. Kenya National Bureau of Statistics, Population and Housing Census 2009, https://www.knbs.or.ke/publications/ (last visited July 22, 2017). Moreover, Kenya’s population is about 80 percent Christian (Protestant, Catholics, and other Christians) while 11.2 per cent of the Kenyan population is Muslim and is concentrated in the eastern half of the country. Kenya National Bureau of Statistics, Analytical Report on Kenya Population Atlas, vol. XV (Mar. 2012), at 22, https://www.knbs.or.ke/publications/ (last visited July 22, 2017). As of June 30, 2017, Kenya had 486,011 registered refugees and asylum seekers with over 60 percent originating from Somalia. UN High Commissioner for Refugees (Kenya), Figures at a Glance, http://www.unhcr.org/ke/figures-at-a-glance (last visited July 22, 2017). According to the 2010 Constitution, and enacted after the 2013 general elections, the territory of Kenya is now divided into 47 counties as the units of

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Indeed, many believe that Kenya’s Muslim population has long been alienated from the national government and that alienation was one of the reasons for the January 1992 formation of the Islamic Party of Kenya (IPK).94 In fact, the IPK helped Kenyan Muslims become even more unified in the face of what was seen as official discrimination and hostility from Bantu Africans.95 In turn, has created a dangerous cycle because the Kenyan security services have often responded to terrorist threats with a heavy-handed response, antagonizing the local communities and angering youth.96 This has allowed al Shabaab to devolved government, eliminating the eight former provinces. Const. of Kenya, 2010, art. 6. 94  Samuel L. Aronson, Kenya and the Global War on Terror: Neglecting History and Geopolitics in Approaches to Counterterrorism, 7 Afr. J. of Criminology and Just. Stud. 24, 25–25 (Nov. 2013). After its independence from the Britain in 1963, Kenya fought a four year counter-insurgency effort against Somali political groups which were supported by the Government of Somalia in Mogadishu that sought to unite a “Greater Somalia.” Daniel Branch, Violence, Decolonisation and the Cold War in Kenya’s North-Eastern Province, 1963– 1978, 8 J. of E. Afr. Stud. 4, 642–657 (2014): 644–46. This “Shifta War” involved the use of brutal force, forced “villagisation,” and a lack of economic development that undermined the state’s claim to legitimacy in the affected areas. In other words, the Kenya Army used many of the same tactics that had been used by the British forces during the earlier Mau Mau insurgency. Id. at 646–649. Still, even after the end of the Shifta War, the Kenyan government maintained a “garrison” government—that used heavy-handed tactics to combat arms smuggling and Somali bandits—under an official State of Emergency until 1991. In fact, the Kenya Army often used collective punishment—with ruthless brutality—to terrorize dissident northern groups into submission. For example, in 1983 the government tried to disarm two rival clans that were locked in a deteriorating situation. But, after the Degodia clan refused to comply with a government order to disarm, a district committee decided to impose a collective punishment against the clan. However, this action resulted in what some consider the most notorious massacre in recent Kenyan history: over a fiveday period in February 1984, the military rounded up some 5,000 men and boys, herded them to the Wagalla airstrip where they were interrogated, brutalized, and tortured. At one point, the prisoners stampeded and the military opened fire, leaving at least a thousand dead. David M. Anderson, Remembering Wagalla: State Violence in Northern Kenya, 1962– 91, 8 J. of E. Afr. Stud. 4, 658–676 (2014). Thus, if the Wagalla massacre had been “part of a widespread or systematic attack directed against [the] civilian population” by Kenyan officials, it could constitute a crime against humanity. See, for example, Article 7 of the Rome Statute that became operative in July 2002. The Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, UN Treaty Collection, https://treaties .un.org/pages/UNTSOnline.aspx?id=1 (last visited July 26, 2017). 95  Id. at 26. However, the government also refused to permit the widely-supported IPK to register as a political party, arguing that no party should be based upon religion. Arye Oded, Islamic Extremism in Kenya: The Rise and Fall of Sheikh Khalid Balala, 26 J. of Relig. in Afr. 4 (Nov. 1996), at 406. 96  See generally Human Rights Watch, You Are All Terrorists: Kenyan Police Abuse of Refugees in Nairobi (Human Rights Watch, 2013), https://www.hrw.org/sites/default/files/reports/

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circulate its own “narrative of victimization and alienation of Somali and (and Muslim) interests by the Kenyan government and its Western allies.”97 Thus, al Shabaab has found fertile soil to recruit new members, launch attacks against the government and civilian targets, and spread its Salafist-jihadist ideology in Kenya’s largely Sufi-Sunni Muslim community. Moreover, Kenya’s October 2011 invasion of southern Somalia, its first-ever regional mission and known as Operation Linda Nchi (Swahili for “Protect the Country”), has been a major contributing factor to the significant increase in terrorist attacks in Kenya since 2013.98 Indeed, al Shabaab has claimed that its attacks on Kenyan soil have been “in retaliation for Kenya’s role in an UN-backed peacekeeping force in Somalia.”99 Recently, al Shabaab has staged major terrorist attacks on civilian targets in Kenya, often singling out non-Muslims, including the September 2013, four-day siege on Nairobi’s popular Westgate Mall,100 a wave of grenade and bomb attacks, the June– July 2014 massacre that started in the coastal town of Mpeketoni,101 the November 2014 attack on a bus in Mandera County,102 a December 2014 kenya0513_ForUpload_0_0.pdf (last visited Nov. 11, 2017) (involving a range of human rights abuses by Kenyan police and security services—likely in response to earlier attacks on Kenyan law enforcement officials and civilians blamed on al Shabaab—against Somali refugees living in Eastleigh during the period Nov. 2012 to Jan. 2013). 97   Chome, Violent Extremism and Clan Dynamics and in Kenya, supra n.89, at 13. See also van Metre, Community Resilience to Violent Extremism in Kenya, supra n.91, at 6 (arguing that the “victimization narrative has gained traction on the basis of unaddressed historical injustices, particularly socioeconomic and political exclusion, skewed development, and past injustices around land allocation.”). 98  Id. at 26. See generally David M. Anderson and Jacob McKnight, Kenya at War: Al-Shabaab and its Enemies in Eastern Africa, 114 African Affairs 454, 1–27 (2015). 99  Murithi Mutiga, Kenyan President Sacks Security Minister after Latest Al-Shabaab Attack, The Guardian, Dec. 2, 2014, https://www.theguardian.com/world/2014/dec/02/kenyan -president-sacks-minister-shabaab-attack (last visited July 27, 2017). 100  Id. at 27. 101  Al-Shabaab conducted multiple attacks in 2014, leading Kenyan lawmakers to urge the passage of the December 2014 anti-terrorism (SLAA) legislation. See, for example, Al-Shabaab claims responsibility for Kenya attack that killed 48, Fox News, June 16, 2014, http://www.foxnews.com/world/2014/06/16/kenya-police-say-27-killed-in-militant -attack-on-town-near-coastal-resort.html (last visited July 27, 2017); Hannah Godfrey, Al-Shabaab Claims Responsibility for Kenya Bus Attack, The Guardian, July 19, 2014, https://www.theguardian.com/world/2014/jul/19/kenya-bus-attack-al-shabaab-claims -responsibility (last visited July 27, 2017); and Brian Walker & Merieme Arif, Al-Shabaab Separates non-Muslims from Muslims, Kills 36 in Quarry Attack, CNN, Dec. 2, 2014, http:// www.cnn.com/2014/12/02/world/africa/kenya-attack/ (last visited July 27, 2014). 102  T he Guardian, Kenya Bus Attack Survivor Tells How Gunmen Selected Their Victims, Nov. 22, 2014, https://www.theguardian.com/world/2014/nov/23/kenya-bus-attack -survivor-tells-how-gunmen-selected-their-victims (last visited Aug. 14, 2017).

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attack on quarry workers near the Somali border that left 36 dead,103 and the April 2015 assault on Garissa University College.104 The al Shabaab attacks in Kenya have been marked by the deliberate targeting of civilians, typically involving high profile public locations in Nairobi and northeastern Kenya. In the Westgate Mall attack, four terrorists—all four ethnic Somalis—armed with AK-47 assault rifles held the mall for several days and 62 people were killed.105 In the Mpeketoni attack, armed men entered the town, torching the bank, two hotels, a police station, and vehicles, leaving 50 persons dead—none of whom were Muslim or locals.106 The attackers, operating in heavily armed groups that ranged in size from 15–300 men, then targeted eight villages and a bus in both Lamu County and neighboring Tana River County over a sustained and organized rampage over a four week period. This rampage eventually left 87 people dead, and 30 buildings and 50 vehicles destroyed.107 103  B BC News, Al-Shabab Massacres non-Muslims at Kenya Quarry, Dec. 2, 2014, http://www .bbc.com/news/world-africa-30288137 (last visited Aug. 14, 2017). 104  B BC News Africa, Kenya Attack: 147 Dead in Garissa University Assault, Apr. 3, 2015, http://www.bbc.com/news/world-africa-32169080 (last visited July 22, 2017). Garissa has also been the scene of earlier attacks on Kenyan police and military officers, but the government’s effort to prosecute the responsible persons has been impaired by problems in producing admissible evidence in court. In one case, for example, the government had arrested a suspect for the November 2012 murder of three soldiers only to have the court dismiss the case for failure to establish a prima facie case against the accused, to include a failure to provide the certificate required by the Evidence Act the support the admissibility of electronic evidence. Republic v. Ibrahim Bille Jelle, Criminal Case No. 3 of 2013 (2016) eKLR. 105  Aronson, Kenya and the Global War on Terror, supra n.94 at 27–28. 106  Anderson, Kenya at War, supra n.98, at 23–25 (explaining that the attackers targeted Kikuyu “outsiders” who had moved to the area in the 1970s as part of a government settlement scheme, effectively exploiting tensions between the wealthy “outsiders” and the local Bajuni people). 107  Human Rights Watch, Insult to Injury: The 2014 Lamu and Tana River Attackers and Kenya’s Abusive Response 1–3 (2015). Human Rights Watch contends that the Kenyan security forces were slow to respond to the attackers, and eventually did so using excessive force while also arbitrarily detaining people and stealing property from Muslims and ethnic Somalis living in the two affected counties. Id. at 25–43. Human Rights Watch also reports that even though hundreds of people were arrested and mistreated in violation of international and Kenyan law, the charges were usually dropped based upon a lack of evidence and no one was ever held responsible for the attacks. Id. at 31–32. Some people were, however, charged with murder and held without bail. See, for example, Mahadi Swaleh Mahadi v. Republic, Criminal Case No. 23 (2014) eKLR (two defendants were charged with 60 counts of murder and the High Court denied bail, at least in part, because there was evidence that he had mobilized resources to organize the killings), and Republic v. Diana Salim Suleiman & Another, Criminal Case No. 23 (2014) eKLR (involving a renewal of bond application by the same two defendants four months later;

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In the Mandera County bus attack, al Shabaab members hijacked the bus and then executed 28 non-Muslims, saying it was revenge for recent police raids in Mombasa.108 In the Garissa College attack, terrorists armed with assault rifles and grenades held portions of the college for 13 hours before Kenyan Special Forces could raid the compound. A total of 148 persons, including 142 students, were killed in this attack, while 104 more were injured.109 According to one observer, “Kenya and al-Shabaab are now engaged in a cycle of violence: the militant group’s attacks in Kenya become justifications for Kenyan troops fighting inside Somalia, which in turn leads al-Shabaab to mount more attacks in Kenya.”110 However, the response by the security forces to several of the attacks have indicated significant shortcomings in performance; the response at the Westgate Mall was marred by complaints of jurisdictional friction between the army and the police, the use of excessive force, fratricide and looting,111 while the response at Garissa College was criticized as slow and uncoordinated.112 In the case of the June–July 2014 attacks that started in Mpeketoni, Human Rights Watch found that the response by the Kenyan security forces was marked by a lack of personnel, vehicles, communication, and insufficient command and control, as well as excessive force and the arbitrary detention of men and boys who were then subjected to cruel, inhuman or degrading treatment.113 On one hand, this series of incidents suggest that Kenya’s counter-terrorism “legal” problem may not be with the adequacy of its laws, but in police availability in local areas, as well

the renewed application was granted based upon a change in the security situation in the affected areas). 108   A l Jazeera, Al-Shabab Massacres 28 Kenyan Bus Passengers, Nov. 22, 2014, http://www .aljazeera.com/news/africa/2014/11/killed-kenya-bus-attack-201411226446296802.html (last visited Aug. 14, 2017). 109  Christopher Torchia & Tom Odula, Kenya Mourns 148 Dead in University Attack by Islamic Extremists, U.S. News & World Rep., Apr. 3, 2015, https://www.usnews.com/news/ world/articles/2015/04/03/kenya-attack-survivor-says-gunmen-had-scouted-the-campus (last visited July 22, 2017). 110  Alex Thurston, Kenya Faces Pushback on its Questionable War on Terror, International Peace Institute, May 26, 2015, https://theglobalobservatory.org/2015/05/kenya-dadaab -garissa-al-shabaab/ (last visited July 25, 2017). 111  Anderson, Kenya at War, supra n.98, at 15–20. 112  Sara Malm and Ollie Gillman, Kenyan Soldiers Took Seven Hours to Respond to University Massacre that Left Almost 150 Slaughtered, it Has Emerged, Daily Mail, Apr. 5, 2015, http://www.dailymail.co.uk/news/article-3026315/Kenyan-soldiers-took-seven-hours -respond-university-massacre-left-150-slaughtered-emerged.html (last visited Aug. 2, 2017). 113  Human Rights Watch, Insult to Injury, supra n.107, at 2.

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as the adequacy of its training and discipline. On the other hand, the use of heavy-handed tactics by the police, coupled with a lack of accountability for abuses, risks the further alienation and radicalization of individuals in Kenya’s ethnic Somali and Muslim communities. The Kenyan courts have adjudicated a range of criminal and civil cases involving suspected terrorists over the past five years, but the reported cases often reveal problems with insufficient evidence—leaving open questions about the quality of the investigative work, as well as the decision to prosecute. In one criminal case, two persons were accused of the murder of three police officers in a pistol and grenade attack that occurred in Garissa County on April 2, 2013; both were tried under the Kenyan Penal Code.114 While the government had argued that the accused were suspected members of al Shabaab, the trial court acquitted both based upon an insufficiency of the evidence. In contemporaneous civil case, also involving a suspected al Shabaab member in Garissa County, a Nairobi newspaper published an unverified article in November 2012 that named the plaintiff as an al Shabaab intelligence operative.115 Here, the trial court found the publication to be defamatory and made with malice; the court awarded the plaintiff both general and exemplary damages. In a second criminal case, also involving suspected al Shabaab members in Garissa County, two persons were tried and convicted before a magistrate judge under the Prevention of Organised Crimes Act,116 as “knowingly engaged in criminal activities by being members of the Al-Shabaab, a prohibited group as per Kenya Gazette Notice 12585 of 18th October 2010.”117 On appeal, however, the High Court found an insufficiency of evidence that the defendants were members of al Shabaab or were even traveling to Somalia; the Court, therefore, quashed the convictions.118 The High Court explained:

114  Republic v. Abdi Samad Mohamed & Another, Criminal Case No. 7 of 2013 (2017) eKLR. In a 2014 case, also involving a grenade attack in Garissa County, two persons were convicted by a magistrate judge under both the Penal Code and the 2012 Prevention of Terrorism Act for the same overt act. On appeal, the High Court that the dual charge for the same act was improper and confusing for the defendants; the High Court also found an insufficiency of the evidence. Ibrahim Bishar Adan & Another v. Republic, Criminal Appeal No. 87 and 88 (2014) (consolidated) eKLR, at 5–6. 115  Abdi Mohamed Farah v. Nairobi Star Publication Ltd & Another, Civil Case No. 15 (2013) eKLR. 116  Republic of Kenya, The Prevention of Organised Crimes Act, No. 6 of 2010. 117  Juma Njuguna & Another v. Republic, Criminal Appeal No. 59 (2013) eKLR, at 1. 118  Id. at 7.

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I wish to point out that the investigations, if any, were poorly done. I am aware it was at a time, and this continues to date, when this Republic was facing anxiety due to insecurity due to terrorism. The Police and all security agencies must play their part and do it well. The Judiciary must also do their part. However, the anxiety, fear or suspicion alone cannot be used as a basis of conviction where evidence is lacking.119 In a third criminal case, also tried before a magistrate judge in Garissa County, the refugee-defendant had been tried and convicted under the Penal Code for giving false information to vetting officers in an effort to obtain a refugee movement pass, and under the Prevention of Organised Crimes Act for membership in al Shabaab.120 However, on appeal, the High Court found that certain charges could not be sustained and that a retrial was necessary because the magistrate judge had failed play certain video clips in court and in the presence of the accused. The Kenyan security services have also engaged in the practice of extra­ ordinary rendition (i.e., transfers to a foreign nation outside of a treaty process), sometimes sending people without due process of law to Somalia, Ethiopia, and Guantanamo Bay. In one 2008 case, for example, the High Court considered a claim of extraordinary rendition made by 11 petitioners—including eight Kenyan and three Tanzanian citizens—who had been unlawfully sent by the 119  I d. at 8. See also Thomas Mwanzia Komo v. Republic, Criminal Appeal No. 98 of 2014 (2015), eKLR (upholding the conviction of an al Shabaab member solely on his own confession, as well as his sentencing to 12 years in prison, under the 2010 The Prevention of Organised Crimes Act); Nur Deka Maalim v. Republic, Criminal Appeal No. 88 (2015) eKLR (finding an insufficiency of the evidence—a lack of proof with respect to exclusive control over the place where the grenades and ammunition were found—to support a conviction on weapons possession); Richard Baraza Wakachala v. Republic, Criminal Appeal No. 109 (2015) eKLR (finding that the defendant was convicted in a magistrate’s court for conduct that was not proscribed by the 2012 Prevention of Terrorism Act); and Mohamed Abdi Adan v. Republic, Criminal Appeal No. 168 (2015) eKLR (overturning a conviction involving the collection and possession of proscribed information based upon a lack of evidence that the defendant had constructive possession over the house where the items were found and based upon problems with the chain of custody). 120  Abdul Mohamed Abdulrahman v. Republic, Criminal Appeal No. 81 (2013) eKLR, at 3. See also Abdi Kaarshe Mohammed & 4 Others v. Republic, Criminal Revision No. 151–155 (2013) eKLR (involving five Somali refugees who had been convicted in magistrate’s court of being unlawfully present in Kenya, but the High Court set aside the convictions because all five were asylum-seekers at the time of arrest, prosecution and conviction). See also Mohammed Haro Kare v. Republic, Criminal Appeal No. 49 (2016) eKLR (overturning a conviction in a magistrate’s court for being a member of al Shabaab, with a resulting 20-year prison sentence, based solely on circumstantial evidence that the accused was shown in a photograph wearing military attire and holding an AK-47 assault rifle).

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Anti-Terrorism Police Unit (ATPU) to Somalia and Ethiopia where they had been tortured.121 The petitioners claimed that they had crossed into Kenya by boat—seeking refuge—because of the civil war in Somalia and because the borders crossings had been closed by Kenya security forces.122 The government agreed that all had been deported—without any judicial process—as threats to national security, but claimed that none had been able to produce any identification documents or prove that they were lawfully present in Kenya.123 Hence, the government claimed that the burden of providing for them fell upon the Somali government and that the government was not responsible for what occurred after they had been deported.124 However, the High Court held that the arrest, detention and removal of the petitioners had been in violation of their constitutional rights to due process and freedom from torture.125 The High Court examined a range of 121  Salim Awadh Salim & 10 Others v. Commissioner of Police & 3 Others, Petition No 822 (2008), eKLR, at 2–3. According to one human rights report, the ATPU is part of Kenya’s National Police Service and was formed in February 2003 to combat terrorism. Reportedly, the ATPU has been particularly active in the coastal—largely Muslim— region and has used extrajudicial methods in its fight against al Shabaab, and sometimes leading to public protests in the Muslim community. See Open Society Foundations, “We’re Tired of Taking You to Court,” supra n.68 (citing the use of excessive force, the torture and ill-treatment of detainees, arbitrary detentions, extrajudicial killings, enforced disappearances, and extraordinary renditions to countries where the detainees face possible torture). Kenya has signed, but not ratified, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). See also Human Rights Watch, Kenya: Killings, Disappearances by Anti-Terror Police, Aug. 18, 2014, https://www.hrw.org/news/2014/08/18/ kenya-killings-disappearances-anti-terror-police (last visited Aug. 5, 2017) (also describing support to ATPU operations by Kenya’s General Service Unit (GSU), a well trained and equipped paramilitary wing of the National Police Service that is organized under article 24 of the 2011 National Police Service Act). After the July 2010 World Cup bombings in Kampala, the ATPU arrested at least one Kenyan citizen without a warrant and then illegally extradited him to Uganda the next morning. Zuhura Suleiman v. The Commissioner of Police & 3 Others, Miscellaneous Application 441 (2010) eKLR (noting multiple violations of Kenyan law in ruling on a habeas petition brought by the suspect’s wife). See also Open Society Foundations, Counterterrorism and Human Rights Abuses in Kenya and Uganda: The World Cup Bombing and Beyond (2013) (citing the illegal arrest, physical abuse and extraordinary extradition of 10 men to Uganda, including 7 Kenyan nationals). 122  Salim Awadh Salim & 10 Others v. Commissioner of Police & 3 Others, Petition No 822 (2008), eKL, at 2. 123  Id. at 7–8. 124  Id. 125  Kenya has two current statutes with respect to extradition; both statutes are based upon a request for surrender by Commonwealth or other foreign nation, followed by warrant

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international legal documents, to include the International Convention against Torture, 1951 Convention Relating to the Status of Refugees and the African Charter on Human and Peoples’ Rights, to show that a person could not be sent—by expulsion, return (refouler) or extradition—to a country where there was a likelihood that he would be subject to torture and other cruel and degrading treatment. The court explained that the “state could not cite national security concerns to justify its acts, particularly at this point in time when the Constitution of Kenya 2010 clearly spells out at Article 25 that the right not to be subjected to torture and other cruel and degrading treatment cannot be derogated from….”126 The High Court then made global awards of compensatory damages to each of the 11 petitioners. The threats emanating from Somalia extends beyond violent attacks on civilians to a range of criminal activity that can be used to finance terrorist operations in Kenya, Somalia or elsewhere in the region. According to a 2011 study by the International Peace Institute (IPI), there are six types of transnational crime present in Kenya: drug trafficking, trade in counterfeit goods, trade in wildlife products, human trafficking, small arms trafficking, and money laundering.127 The IPI reports that Somali militia groups have been involved in the trafficking of drugs, wildlife products, sugar, humans for prostitution and slavery, and small arms to Kenya, with the laundered funds sometimes ending up with the al-Shabaab.128 This report also notes the widespread corruption within Kenya, particularly in the Kenya Police, the Registrar of Persons, the judiciary, the Kenya Ports Authority, and the Department of Immigration.129 from a Kenyan magistrate, and a fair judicial hearing—“in the same manner, as nearly as may be had, as in a trial before a subordinate court”—to consider the person’s surrender for specified extraditable offenses. Extradition (Commonwealth Countries) Act (Revised Edition 2012), art. 7(1); Extradition (Contiguous and Foreign Countries) Act (Revised Edition 2014). 126  Id. at 29. 127   Peter Gastrow, Termites at Work: Transnational Organized Crime and State Erosion in Kenya (2011), at ix. 128  Id. 129  Id. at 3–6. Kenya has several important tools for fighting corruption among public officials. First, Kenya has a 2003 Anti-Corruption and Economic Crimes Act that permits the government to suspend public officers who are charged with corruption or economic crimes, with dismissal from government service upon conviction. In addition, the statute provides for the forfeiture of any “unexplained assets.” Id. art. 56. Second, Kenya has a 2003 Public Officer Ethics Act (revised edition 2016) that requires public officials to file a biennial “declaration of the income, assets and liabilities of himself, his spouse or spouses and his dependent children under the age of 18 years.” Id. art. 26(1). Third, Kenya has passed a 2016 Access to Information Act that gives citizens the right to access information held by public or private entities. While the government has some

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The threat posed by al Shabaab presents the Kenyan government with important issues with respect to applicable law. On one hand, to the extent that the Kenya Defence Forces (KDF) are operating on Somali soil in support of the current government in Mogadishu against an organized armed group (al-Shabaab), the KDF would be bound by Kenyan military law and international humanitarian law—likely to include the full protections of the 1977 Additional Protocol II—with respect to the targeting, detention, interrogation and prosecution of combatants.130 In addition, Kenya has an arguable basis for the application that body of law with respect to al Shabaab elements that are using Somali territory as sanctuary for attacks that are taking place in Kenya. Moreover, to the extent that the KDF is participating in UN peacekeeping operations as part of African Union (AU) Mission in Somalia (AMISOM),131 the KDF would be bound by the guidelines established by the UN Security Council with respect to allegations of sexual abuse against civilians.132 On the other hand, with respect to the spate of terrorist attacks and related criminal activity that have been occurring in Kenya over the past ten years, the Kenyan government would likely be bound to apply the full protections of international and Kenyan human rights law—absent a declaration of a state of emergency by the Kenyan President.133 Thus, in such cases in Kenya, law enforcement officials would be obligated to investigate and prosecute ability to withhold information in the interests of national security, due process of law and individual privacy, it requires the release of a range of information concerning the operations and functions of public entities—to include the salaries of public officials. 130  Republic of Kenya, The Kenya Defence Forces Act, No. 25 of 2012 (as amended), applies to all members of the regular and reserve forces, cadets, “an alleged spy of the enemy,” members attached to foreign armed forces, civilians who accompanies any KDF unit on active service, and persons attending a Defence Institution. Id. art. 4. KDF personnel are, therefore, subject to court martial for a wide range of human rights violations that could be committed during a deployment to Somalia, to include aiding the enemy, spying, failures to carry out the lawful orders of superior officers, offences against the civilian population, false statements, corruption, torture, and “cruel, inhuman or degrading treatment.” Thus, Kenyan military law provides for an appropriate range of criminal offenses, backed by processes and procedures to support fair disciplinary proceedings, during a unit deployment outside Kenyan territory. With the single exception of spying, captured members of al Shabaab would not be subject to Kenyan military law. Moreover, a convicted person or, in the case of acquittal, the government may appeal a court martial decision to the High Court. Id. art. 186. 131  See, for example, S.C. Res. 2232 (Concerning the Situation in Somalia), U.N. Doc. S/RES/2232 (July 24, 2015). 132   S .C. Res. 2272 (on sexual exploitation and abuse by United Nations peacekeepers), U.N. Doc. S/RES/2272 (Mar. 11, 2016). 133   T he Constitution of Kenya, 2010, art. 58.

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terrorism offenses committed by al Shabaab members/supporters under applicable criminal statutes. The second, general national security threat to Kenya involves the use of its territory as a recruiting, training and financial support base for Kenyan nationals and foreign fighters, particularly Islamist in orientation, who support al Shabaab. Al Shabaab has been very effective at recruiting Muslim foreign fighters and in maintaining financial support in the region, often through radical clerics in Eastleigh mosques,134 through its key regional affiliate al-Hijra that has an extensive underground network in Kenya,135 and through recruitment videos that are prepared in both English and Swahili and released over the Internet.136 Al-Hijra, with active branch offices throughout Kenya and Somalia, has emerged as al-Shabaab’s “most important regional ally,” by hosting events, issuing publications, and maintaining an active Twitter account and website.137 The ATPU, a specially-formed police unit, has led the counter-terrorism effort against al-Hijra.138 However, there have been numerous reports of human rights abuses made against the ATPU by the Muslim community, with extrajudicial killings of Muslim clerics and youth leaders that “have generated a climate of fear and anxiety amongst Muslim leaders of all shades of opinion: and it is difficult to avoid the conclusion that this is precisely the intention.”139 In fact, the government launched a major security operation, Operation Usalama Watch, on April 2, 2014, in a major security crackdown that resulted in the round up, arrest and illegal detention of more than 4,000 persons in Nairobi’s

134  Fredrick Nzes, Terrorist Attacks in Kenya Reveal Domestic Radicalization, 5:10 CTC Sentinel (Combating Terrorism Center, West Point, October 2012), at 131–5) (indicating that hundreds of Kenyan youth have trained with al-Shabaab in Somalia before returning home). The al-Hijra affiliate was formerly known as the Muslim Youth Center, which is based in Nairobi’s Majengo slum; the group consists of “primarily Kenyan Somali and non-Somali Muslim followers of al-Shabab in East Africa,” and has its geographic center of support on the Swahili coast. Fredrick Nzes, Al-Hijra: Al-Shabab’s Affiliate in Kenya, 7:5 CTC Sentinel (Combating Terrorism Center, West Point, May 2014) at 24. 135  Christopher Anzalone, Kenya’s Muslim Youth Center and Al-Shabab’s East African Recruitment, 5:10 CTC Sentinel), at 9–11 (Combating Terrorism Center, West Point, October 2012). 136  Id. at 10. 137  Id. at 12. See also Ngala Chome, Violent Extremism and Clan Dynamics and in Kenya 5 (United States Institute for Peace, 2016) (describing how the group has been absorbed by a new military unit, Jaysh Ayman, which consists of Kenyan, Tanzanian and Ugandan nationals who have been tasked with waging war in those countries). 138  Anderson, Kenya at War, supra n.98, at 17–18. 139  Id. at 18.

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Eastleigh district.140 This operation—involving more than 6,000 security personnel—included indiscriminate house-to-house searches, nighttime raids, and widespread complaints of excessive force and looting, all reportedly done in search of terrorists and illegal (i.e., Somali) aliens.141 Hence, many observers argue that such an operation, also coming on the heels of recent high profile attacks by al Shabaab in Nairobi and Mandera County, “played into the hands of Al-Shabaab by appearing to scapegoat ethnic Somalis and to alienate Muslims.”142 Indeed, one of al Shabaab’s primary goals has been to encourage violent action inside Kenya,143 raising an important issue under Kenyan law in terms of the right to free speech and efforts to combat radicalization in the Muslim community. In fact, one controversial section of the 2014 Security Laws (Amendment) Act of 2014, later found unconstitutional by the High Court, provided that: “30A. (1) A person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.”144 The High Court found that the proposed amendment went beyond the provisions in the 2010 Constitution, Article 33(2), which “prohibit[s] hate 140  I d. at 20–23. This security operation (“Usalama” is the Swahili word for security) was immediately preceded by a series of three explosives on March 30—at two restaurants and a clinic in Eastleigh—that was then followed the April 1 extrajudicial killing of a radical Muslim cleric and rioting in Mombasa. Moreover, the Kenya Police was accused of, but denied any wrongdoing, with respect to the cleric’s murder by unidentified assailants. Janelle Dumalaon, Life in Eastleigh, Where a Bomb Attack Monday Means You’ll be arrested Tuesday, PRI Global Post, Apr. 9, 2014, https://www.pri.org/stories/2014-04-09/life -eastleigh-where-bomb-attack-monday-means-youll-be-arrested-tuesday (last visited Aug. 18, 2017). See also Kenyan Police Disperse Muslim Protests in Mombasa, World Bulletin, Apr. 4, 2014, http://www.worldbulletin.net/world/132859/muslim-protestsexpected-in-kenya-after-cleric-death-updated (last visited Aug. 18, 2017). 141  Id. See also Independent Policing Oversight Authority, Monitoring Report on Operation Sanitization Eastleigh Publically Known as “Usalama Watch,” July 14, 2014, http:// www.regionalmms.org/images/sector/IPOA (last visited Nov. 11, 2017) (examining the performance of the National Police Service and making numerous findings with respect to discipline and professional standards; corruption, competence and integrity; compliance with human rights standards; training on human rights; and the need to promote broader relationships with the broader society). 142  Id. at 21. One observer noted that the “[p]ublic support for the pogrom against Somalis was high; the atmosphere in the capital was vicious.” Ben Rawlence, City of Thorns: Nine Lives in the World’s Largest Refugee Camp 341 (2016). 143  Anzalone, Kenya’s Muslim Youth Center and Al-Shabab’s East African Recruitment, supra n.135. 144   C ORD & 2 Others v. Republic of Kenya, supra n.51, para. 216.

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speech, propaganda for war, incitement to violence and advocacy of hatred that constitute ethnic incitement, vilification of others or incitement to cause harm.”145 However, the Kenyan Penal Code, article 96, proscribes the incitement to violence and disobedience of the law. Article 96 criminalizes the uttering, printing or publishing of words, or other act or thing, indicating or implying that it is or might be desirable to do, or omit to do, any act the doing or omission of which is calculated— (a) to bring death or physical injury to any person or to any class, community or body of persons; or (b) to lead to the damage or destruction of any property; or (c) to prevent or defeat by violence or by other unlawful means the execution or enforcement of any written law or to lead to defiance or disobedience of any such law, or of any lawful authority….146 This offense is punishable by a maximum of five years’ imprisonment. Thus, while Kenya lacks an explicit statute that criminalizes the incitement to terrorism, the Article 96 provides a reasonably useful tool for addressing the radicalization of its Muslim population. Somali-Americans have also been travelling to Somalia—perhaps through Nairobi’s Jomo Kenyatta International Airport—to join al Shabaab over the last ten years, with many originating in the large Somali community living in Minneapolis,147 some of whom may have been radicalized through video propaganda released over the Internet and some through local mosques. In fact, Somali-Americans have been implicated in numerous attacks by al Shabaab in both Somalia and Kenya.148 Some Somali-Americans have been arrested and convicted on charges of attempting to provide, conspiracy to provide, and providing material support to terrorism (e.g., for providing funding, traveling to join the group, and fighting on its behalf), while other Somali-Americans 145  Id. para. 256. 146   T he Penal Code (Revised Edition 2012), art. 96. 147  Paul Tilsley, African Terror Group Al Shabaab Finds American Recruits to Aid Jihad Missions, Fox News, Feb. 4, 2016, http://www.foxnews.com/world/2016/02/04/africanterror-group-al-shabaab-finds-american-recruits-to-aid-jihad-missions.html (last visited July 27, 2017) (claiming that at least 40 Americans have been recruited to join al-Shabaab). 148  Peter Bergen, Al-Shabaab’s American Allies, CNN, Sept. 24, 2013, http:// www.cnn.com/ 2013/09/23/opinion/bergen-al-shabaab-american-ties/ (last visited July 27, 2017). See also Press Release, U.S. Department of Justice, U.S. Citizen Pleads Guilty to Providing Material Support to Al Shabaab, Sept. 8, 2017, https://www.justice.gov/opa/pr/us-citizen -pleads-guilty-providing-material-support-al-shabaab (last visited Sept. 14, 2017).

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have been killed in suicide attacks.149 In addition, there has been at least one prosecution involving a defendant who made false statement to agents of the Federal Bureau of Investigation (FBI), punishable under 18 U.S. Code § 1001 (False Statements, Concealment), about whether she knew anyone who had sent money to al Shabaab.150 The § 1001 statute has a been a very useful tool for American prosecutors handling counterterrorism cases; it permits the prosecution of persons who in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowing and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; ….151 While the statute originally permitted a five-year maximum penalty, it now allows for an eight-year maximum sentence in cases involving “international or domestic terrorism.”152 According to one writer, the  §  1001 statute “has been extremely useful for U.S. counterterrorism to professionals who expect to uncover the truth from the public so they can thwart prospective terrorist plots.”153 This threat vector, involving Somali-Americans seeking to travel to East Africa to support terrorist groups, requires international cooperation between the United States and its regional partners. On one hand, the United States has designated al Shabaab as a foreign terrorist organization,154 thus criminalizing 149  Anti-Defamation League, Al Shabaab’s American Recruits (2013), available at www.adl. org (last visited July 27, 2017). 150   United States v. Ali, 799 F.3d 1008, 11016 (8th Cir. 2015). 151  18 U.S. Code § 1001. 152  18 U.S. Code § 1001(a). 153  Jeff Breinholt, A Crime for All Season: 18 U.S. C. § 1001 and Counterterrorism, 84 Tenn. L. Rev. 604 (2017) (characterizing the terrorism enhancement as a “super 1001” violation). 154   U.S. Department of State, Designation of al-Shabaab [as a Foreign Terrorist Organization under Section 219 of the Immigration and Nationality Act (as amended) and as a Specially Designated Global Terrorist under Section 1(b) of Executive Order 13224 (as amended), Mar. 8, 2008, https://www.state.gov/j/ct/rls/other/des/143205.htm (last visited July 27, 2017).

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the provision of material support to that organization. Indeed, the Department of Justice, to include the FBI, has investigated, indicted and prosecuted many Somali-Americans for a wide of activities.155 In one case, the United States prosecuted a Kenyan national who provided material support to al Shabaab and two other designated foreign terrorist organizations through the use of wire transfers, to include some that were sent to a Miami-based undercover agent of the FBI.156 On the other hand, Kenya has made increasing efforts to expand its efforts to investigate, prosecute and extradite terrorism suspects,157 although some see this cooperation as unequal and skewed in favor of the United States—with Kenyan government and its partners unfairly defining the terrorist threat as Islamic.158 Kenya has, however, made two complementary attempts at police reform over the past 15 years; this overall effort started in 2003 and culminated in the 2010 Constitution.159 The first effort involved a reform agenda using a 155  S ee, for example, Press Release, U.S. Department of Justice, “Fourteen Charged with Providing Material Support to Somalia-Based Terrorist Organization Al-Shabaab,” Aug. 5, 2010, https://www.justice.gov/opa/pr/fourteen-charged-providing-material -support-somalia-based-terrorist-organization-al-shabaab (last visited July 27, 2017); and Press Release, “Al-Shabaab Member Sentenced To 9 Years For Conspiring To Provide Material Support To The Terrorist Organization,” Jan. 29, 2016, https://www.justice.gov/ usao-edny/pr/al-shabaab-member-sentenced-9-years-conspiring-provide-material -support-terrorist (last visited July 27, 2017). 156  Press Release, U.S. Department of Justice, “Kenyan National Sentenced to 15 Years for Conspiring to Provide Material Support to Foreign Terrorist Organizations,” Press Release 15–1059, Aug. 28. 2015, https://www.justice.gov/opa/pr/kenyan-national-sentenced-15 -years-conspiring-provide-material-support-foreign-terrorist (last visited Sept. 12, 2017). See also Zachary Fagenson, Kenyan gets 15 years in prison in U.S. for funding Islamist militant groups, Reuters, Aug. 28, 2015, http://www.reuters.com/article/us-usa-security -florida/kenyan-gets-15-years-in-prison-in-u-s-for-funding-islamist-militant-groups -idUSKCN0QX22920150828 (last visited Sept. 12, 2017) (describing the defendant’s use of on line chat rooms and his role as a fundraiser, recruiter, and facilitator for the terrorist organizations). 157  Jeremy Prestholdt, Kenya, the United States, and Counterterrorism, 57 Afr. Today 4, at 16–20 (2011). 158  Edward Mogire & Kennedy Mkutu Agade, Counter-terrorism in Kenya, 29 J. of Contemp. Afr. Stud., 473–491, at 485 (October 2011) (explaining that the approach has alienated Kenya’s Muslim community, undermining many of the government’s counterterrorism measures). 159  See generally Yoshiaki Furuzawa, Two Police Reforms in Kenya: Their Implications for Police Reform Policy, 17 J. of Int’l Dev. and Cooperation 51 (2011). Kenyan citizens who were aggrieved by human rights violations, such as detention without charge, torture, and conviction absent certain fair trial guarantees, at the hands of Special Branch/police officials during the period 1982–1992 at the Nyayo House “torture chambers” have been able to recover monetary compensation against the government through civil litigation.

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community-based policing model that focused largely on increasing the level of police professionalism with an end goal of increased capability to maintain law and order, but without necessarily involving efforts to depoliticize the police.160 The second effort stemmed largely from the 2008 post-election violence and the widespread recognition that major reforms were required.161 Currently, the 2010 Constitution provides that the National Police Service, including both the Kenya Police Service and the Administration Police Service, is supervised by an independent Inspector General who holds office through a presidential appointment.162 Article 245(4) provides that: The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or (c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.163 Article 246 further established the National Police Service Commission, which was responsible recruiting and appointing senior police officials, reviewing all matters of compensation and service, exercising disciplinary control, entering into performance contracts with senior officers, and liaising with oversight authorities with respect to complaints made against the police.164 The Kenyan Parliament subsequently passed two important statutes aimed at police reform. First, the 2011 National Police Service Act lays out the general roles, responsibilities and authorities of police officials at all levels, KNCHR, Footprints of Impunity: Counting the Cost of Human Rights Violations (Nairobi, undated), available at http://www.knchr.org/ (last visited July 22, 2017) (noting that 126 suits have been filed against the government, with the government largely permitting default judgments against it, and resulting in awards totaling over 375 million in Kenyan shillings). See, for example, Wachira Weheire v. Attorney General, High Court of Kenya, Miscellaneous Civil Case 1184 of 2003 (2010) eKLR (awarding compensatory damages for injuries that occurred in 1986 while in detention). 160  Furuzawa, Two Police Reforms in Kenya, supra n.159, at 57–58. 161  Id. at 59–64. 162   T he Const. of Kenya, 2010, art. 244. 163  Id. art. 245. 164  Id. art. 246.

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to include disciplinary processes and procedures for offenses by officers.165 Second, the 2011 Independent Policing Oversight Act provides for civilian oversight of the police; the Independent Policing Oversight Authority (IPOA) can conduct independent investigations, inspections, audits and monitoring of the National Police Service, thus aiming to increase police accountability, to enhance professionalism, and to provide for independent oversight involving complaints against the service.166 In overall terms, the recent efforts at police reform demonstrate that considerable effort has been devoted to changing the culture of the Kenya Police Service from an instrument of the ruling regime, acting largely in the interests of maintaining its own rule over dissident groups, to an effective community-oriented service that is accountable to the Kenyan people. The Kenya Parliament has also passed a 2012 Proceeds of Crime and AntiMoney Laundering Act that should help combat terrorism and improve police investigative capacity.167 This comprehensive statute, with its override of bank secrecy laws and its broad reporting obligations for financial institutions, is a marked improvement over the earlier patchwork of weak and fragmented anti-money laundering laws. This detailed statute establishes for reporting requirements, money laundering offenses, and offenses. The statute uses broad language for financial institutions and monetary institutions, such that the Islamic (hawala) money transfer businesses are within its reach.168 The statute 165  Republic of Kenya, National Police Service Act (revised ed. 2012). 166  Republic of Kenya, Independent Policing Oversight Authority Act (2011), articles 5–6. The IPOA has a useful website for the filing of citizen complaints and the publication of its reports. IPOA Website, http://www.ipoa.go.ke/ (last visited Aug. 2, 2017). See, for example, Maggie Fick, Kenya Police Watchdog to Investigate at least 28 Electionrelated Deaths, Reuters, Aug. 17, 2017, http://af.reuters.com/article/africaTech/idA FKCN1AY0SD-OZATP (last visited Aug. 22, 2017). 167  George Ngigi, CBK Rules Outlaw ‘Hawala’ Money Transfer System, Bus. Daily, Apr. 29, 2013, http://www.businessdailyafrica.com/CBK-rules-outlaw-hawala-money-transfer -system/-/539552/1761942/-/fdtuja/-/index.html (last visited July 25, 2017) (noting that unregulated hawalas are susceptible to money laundering and the financing of terrorist activities). 168  Hawalas can serve as an underground banking system, sometimes providing an alternative remittance system between trusted persons in the diaspora and home areas, but “its informal nature and international structure [also] make it a suitable channel for money laundering purposes.” Anna Gardella, Fighting the Financing of Terrorism: Judicial Cooperation, in Enforcing International Law Norms Against Terrorism (440 (Andrea Bianchi, ed., 2004) (noting that hawalas have strong cultural roots and typically rely on trust and strong family ties). The FATF recommends that countries “should take measures to ensure that persons or legal entities, including agents, that provide a service for the transmission of money or value, including transmission through an informal money or value transfer system or network, should be licensed or registered and subject to

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established a Financial Reporting Centre (FRC), which is charged with making information available to investigating authorities, exchanging information with foreign counterparts, and ensuring compliance with international standards and best practices in anti-money laundering measures.169 The FRC also receives reports of Suspicious Transaction Reports (STRs) and is responsible for sending such reports to law enforcement authorities and intelligence agencies.170 The statute establishes requirements for the tracing, freezing, and seizing of criminal proceeds. Kenya has also enacted implementing regulations under the 2012 Prevention of Terrorism Act with respect to its terrorist financing obligations under multiple UN Security Council Resolutions.171 This set of regulations created a Counter Financing of Terrorism Inter-Ministerial Committee with the authority to implement UN Security Council Resolutions 1267, 1373, 1718, and 1988 relating to the suppression of terrorism financing, to formulate the National Strategy and Action Plan to Countering Financing of Terrorism, and to perform other functions as may be prescribed by law.172 This set of regulations also authorized the Cabinet Secretary, as well as any Member of the Committee designated by the Cabinet Secretary, to implement the UN sanctions list (i.e., designated entities or persons), to make the necessary orders to freeze property or funds, and to impose restrictions on entry of designated persons to Kenya. In addition, the regulations directed the Committee to prepare a domestic list comprising specified entities pursuant to the earlier 2012 Prevention of Terrorism Act and based upon a recommendation from the Inspector General of Police.173 However, the regulations provide for very all the FATF Recommendations that apply to banks and non-bank financial institutions.” FATF/OECD, FATF IX Special Recommendations, October 2001, available at: http://www .fatf-gafi.org/publications/fatfrecommendations/documents/ixspecialrecommendations .html (last visited Dec. 20, 2017). 169  Republic of Kenya, The Proceeds of Crime and Anti-Money Laundering Act 2009 (No. 9 of 2012), articles 21–23. 170  Id. art. 24. 171  Republic of Kenya, The Prevention of Terrorism Act (Subsidiary Legislation), No. 30 of 2012. 172  Id. art. 5. 173   T he Prevention of Terrorism Act (No. 30 of 2012). In 2015 this process was challenged in a civil action brought by two non-governmental organizations concerning the designation of al Shabaab as a terrorist organization, as well as the freezing of the petitioner’s assets. However, the High Court in Mombasa ruled that the terrorism designation and the subsequent freezing of assets were invalid based upon a lack of procedural fairness (namely, a lack of adequate notice and a lack of power on the part of the Inspector General to publish a designation). Muslims for Human Rights (MUHIRI) & Another v. Inspector-General of Police & 5 Others, Petition No. 19 (2015) eKLR.

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limited due process procedures; a designated entity can request a humanitarian exception from the Cabinet Secretary for “basic and necessary expenses”174 and can a request a delisting by the appropriate UN Sanctions Committee.175 Human rights organizations have raised considerable concern over Kenya’s counter-terrorism practices with respect to the detention, treatment and deportation of foreign nationals to Somalia, Ethiopia and Guantanamo Bay, Cuba under both international and Kenya law.176 For example, REDRESS, a London-based human rights organization that helps torture survivors obtain “justice and reparation,”177 claims in its February 2009 report that persons have been arbitrarily detained and rendered to foreign countries in violation of the ICCPR, the UN Torture Convention, the African Charter on Human and Peoples’ Rights, the Convention on the Rights of the Child, international refugee law, and the International Convention on Enforced Disappearances.178 Specifically, REDRESS claimed that persons were taken in custody at the Kenya-Somali border and were held without charge, and were denied the right of habeas corpus and access to a lawyer/consular official.179 REDRESS also alleged that there had been “mass transfers” (i.e., deporta­ tions) without any due process of law, the refusal of asylum without even permitting the processing of an asylum application, violations of the principle of non-refoulement under both the ICCPR and the Torture Convention, violations of the prohibition against torture and ill-treatment, and violations of the prohibition against enforced disappearances.180 More generally, REDRESS expressed concern about the government’s failure to conduct “a full, independent and impartial investigation into these detentions and removals,”181 and provide an effective remedy and a reparation to aggrieved persons. However, Kenya has recently announced plans to reopen its border— 174  Republic of Kenya, The Prevention of Terrorism Act (Subsidiary Legislation), No. 30 of 2012, art. 16. 175  Id. art. 17. 176  Lorna McGregor & Carla Ferstman, “Kenya and Counter-terrorism: A Time for Change” (February 2009), available at: http://www.voltairenet.org/IMG/pdf/Kenya_and_Counter -Terrorism.pdf. 177   R EDRESS Website, http://www.redress.org/about-redress/who-we-are (last visited July 24, 2017). 178  McGregor, “Kenya and Counter-terrorism,” supra n.176, at 4–30. 179  Id. Kenya acceded to the Vienna Convention on Consular Relations on July 1, 1965; a denial of access either to a consular official to nationals of the sending State or to a national of the sending State to a consular official would constitute a violation of article 36. 180  McGregor, “Kenya and Counter-terrorism,” supra n.176, at 4–30. 181  Id. at 48.

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closed for the past 25 years—with Somalia, a move that may alleviate some human rights concerns over its unwillingness to admit refugees.182 Subsequently, in 2013, the UN Committee against Torture outlined numer­ ous several positive developments, as well as issues of on-going concern, in Kenyan law.183 The committee noted that the 2010 Constitution had several positive aspects, to include a comprehensive Bill of Rights that included a nonderogable right to freedom from torture and other cruel, inhuman or degrading treatment or punishment, as well as the principle of direct incorporation of international treaties. However, the committee also expressed concerns about the adequacy of Kenyan law with respect to a range of issues including torture, extrajudicial killings and the disproportionate use of force, police reform and investigations, conditions of detention, available funding for the KNCHR,184 long periods of pre-trial detention, arbitrary arrests and police corruption, and police violence against refugees. The third, general national security threat to Kenya involves the trans­ national terrorists and terror groups that have targeted western, particularly American and Israeli, interests in Kenya over the past 40 years. The first transnational terrorist attack in Kenya was probably the January 1976 plot by the Popular Front for the Liberation of Palestine (PFLP) and the BaaderMeinhof group to destroy an Israeli (El Al) passenger plane during a scheduled stopover in Nairobi; this plot was reportedly thwarted by intelligence sharing between Israel and Kenya.185 This attack was followed in December 1980 by a second attack by the PFLP, but this time against the Jewish-owned Norfolk Hotel in Nairobi and killing 20 and injuring 80 people; the PFLP reportedly mounted this attack in retaliation for Kenya’s earlier assistance to Israel in connection with the 1976 rescue operation to free the Israeli hostages at Entebbe international airport.186 182  Mohammed Yusuf, Kenya to Reopen Border with Somalia, VOA News, Mar. 23, 2017, https://www.voanews.com/a/kenya-to-reopen-border-with-somalia/3778939.html (last visited July 24, 2017). 183  Committee against Torture, “Concluding Observations on the Second Periodic Report of Kenya, adopted by the Committee at its Fiftieth Session (6 to 31 May 2013),” CAT/C/KEN/ CO/2. 184  Under the Principles relating to the Status of National Institutions (The Paris Principles), adopted by UN General Assembly resolution 48/134, dated Dec. 20, 1993, the Kenyan government is obligated to ensure adequate funding for the KNCHR, and the commission has an obligation to “[h]ear any person and obtain any information and any documents necessary for assessing situations falling within its competence….” 185  Aronson, Kenya and the Global War on Terror, supra n.94, at 27–28. 186  Aislinn Laing, Nairobi Assault: Kenyan Terrorist Attacks since 1980, Telegraph, Sept. 21, 2013, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/kenya/

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The August 1998 attack on the U.S. Embassy in Nairobi, which killed over 200 people and injured 5,000 more, was the undoubtedly the most notorious transnational attack and was clearly the work of Osama bin Laden and his al Qaeda organization, although the attack had support from several Kenyan citizens.187 On November 28, 2002, terrorists linked to al Qaeda conducted two coordinated attacks in Mombasa.188 In the first attack, terrorists fired two SA-7 surface-to-air missiles against a departing Israeli passenger aircraft at Moi International Airport and, in the second attack, two suicide bombers blew up an explosives-laden vehicle in the front of the Israeli-owned Paradise Hotel in nearby Kikambala.189 Thus, while this threat vector has been largely criminal in nature, the investigation and prosecution of such cases requires a 10325230/Nairobi-assault-Kenyan-terrorist-attacks-since-1980.html (last visited July 22, 2017). 187  Aronson, Kenya and the Global War on Terror, supra n.94, at 27. 188   S .C. Res. 1450 (condemning the bomb attack and attempted missile attack in Kenya), U.N. S/RES/1450 (Dec. 13, 2002). 189   T he Evolution of the Global Terrorist Threat: From 9/11 to Osama bin Laden’s Death 420–22 (Bruce Hoffman & Fernando Reinares, eds., 2014). As a result of the subsequent police investigation, four persons—to include the extremist cleric Sheikh Aboud Rogo Mohamed—were charged with the murder of 15 persons at the hotel under the Kenyan Penal Code (Kenya lacked an anti-terrorism statute at that time). The prosecution alleged that the accused had been involved in the renting of houses where the bomb used to attack the hotel had been assembled. However, the police lacked either direct or circumstantial evidence connecting the accused to the hotel bombing; the prosecution, therefore, based its case using a theory of “common intention” (i.e., conspiracy) upon cell phone communications between the accused and an al Qaeda operative. The trial judge dismissed the case because the prosecution had failed to establish a prima facie case: the prosecution failed to establish that the accused were present at the scene, that they had ever met the suicide bombers, or that they had even formed a common intention with the bombers to prosecute an unlawful purpose. Aboud Rogo Mohamed & 3 Others v. Republic, Criminal Case No. 91 of 2003 (2005) eKLR. This case, apparently Kenya’s first-ever “terrorism” trial, illustrates its lack of experience—at least at that time—with the investigation and prosecution of complex criminal cases. Sheikh Rogo was later arrested in December 2010 and charged with engaging in organized criminal activity (i.e., membership in al-Shabaab), but the government could not produce evidence implicating him in criminal activity and the High Court judge released him on bail pending trial; the charges were apparently dropped at a later date. Aboud Rogo Mohamed & Another v. Republic, Criminal Case No. 793 (2010) eKLR. Sheikh Rogo was subsequently placed on the UN terrorist sanctions list in July 2012, and was murdered in Mombasa on August 27, 2012, by unidentified gunmen. His widow holds the government accountable either because it conducted an extrajudicial killing or because it failed to identify the killer through an effective investigation. Open Society Foundations, “We’re Tired of Taking You to Court”: Human Rights Abuses by Kenya’s Anti-Terrorism Police Unit 40–42 (2013). See also UN, Security Council Committee Pursuant to Resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea, “SOI.011 Aboud Rogo Mohammed,”

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certain level of information sharing and legal assistance between Kenya and its international partners. And, the United States has expended considerable effort over the past 15 years in terms of increasing Kenyan institutional capacity to counter the range of terrorist threats which it faces.190 The fourth, general national security threat to Kenya stems from domestic disturbances, some involving conflict over land rights and some related to presidential elections.191 This type of threat raises important issues regarding the characterization of the conflict as a law enforcement problem or as a non-international armed conflict requiring the application of international humanitarian law. In some cases, local ethnic and political groups have used terror tactics against opponents, to include against government officials, while in other cases the security forces have used excessive force and have committed human rights abuses against the civilian population in what could be described as “counter-terrorism” operations—sometimes “terrorizing” the population.192 In general terms, Kenyan law adequately criminalizes a wide https://www.un.org/sc/suborg/en/sanctions/751/materials/summaries/individual/ aboud-rogo-mohammed (last visited Aug. 5, 2017). 190  Mogire, Counter-terrorism in Kenya, supra n.158, at 476. 191  The recent discovery of oil in the Turkana District also raises possible concerns over security and resource allocation among communal groups in a previously marginalized area. Macharia Kamau, Tullow strikes more oil in latest Turkana find, The Standard, Apr. 27, 2017, https://www.standardmedia.co.ke/business/article/2001237778/tullow -strikes-more-oil-in-latest-turkana-find (last visited Aug. 24, 2017). See also Kennedy Mkutu Agade, Changes and Challenges of the Kenya Police Reserve: The Case of Turkana County, 58 Afr. Stud. Rev. 1, 206–10 (Apr. 2015). 192  Kenyan military law permits the use of military personnel to assist civilian authorities in domestic law enforcement operations under certain circumstances. In such cases, KDF personnel “have the same powers and exercise the same duties as those conferred or imposed upon a members of the National Police Service,” and have the same liability for “acts done or omitted to be done by him or her” as if that member was a member of the National Police Service. The Kenya Defence Forces Act, No. 25 of 2012 (as amended), art. 35. Thus, KDF personnel can be court martialed for any human rights violations committed during a domestic “counter-terrorism” deployment in support of civil authorities. See also Wanjohi Kabukuru, How Terrorism is Redefining the Military, New African 28–31 (Oct. 2014) (examining how terrorism has thrust military personnel into previously civilian roles). In one case, a Member of Parliament brought an action challenging a November 2012 decision of the National Security Council to deploy KDF units to parts of Samburu, Turkana and Garissa Counties to quell civil unrest and to assist in recovery stolen animals and arms, but the High Court judge dismissed the petition as raising a hypothetical and abstract issue (i.e., while Parliament had not approved such a deployment, no units had been conducting law enforcement operations). Washington Jakoyo Midiwo v. The Minister, Ministry of Internal Security & 2 Others, Petition 538 (2012) eKLR.

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range of acts, but there have been significant shortcomings in the investigation and prosecution of cases. One interesting example of a domestic disturbance involves the 2005–08 conflict over land in the Mount Elgon district in Kenya’s Western Province.193 Here, the government has faced competing claims over land by the Sabaot, Iteso and Bukusu communities over the past 50-plus years.194 In fact, the government has attempted multiple settlement/resettlement efforts since 1971, but the region has also experienced a large influx of people many of whom were not original inhabitants in this area. Moreover, the government’s efforts to reach a fair resolution of the competing claims have been compounded by administrative failures, political interference, nepotism and corruption.195 By early 2006, however, many parties were dissatisfied with the then current resettlement effort and began calling for a complete overhaul of the process and legal action.196 Unfortunately, the legal action failed, apparently because the land in question had not been “degazetted” out of forest lands and the litigants, therefore, lacked legal standing (locus standii).197 Hence, some disgruntled people formed the Sabaot Land Defense Force (SLDF), essentially an organized armed group that opposed the 50:50 sharing agreement between the Soy and the Ndorobo clans, which took up arms and went into hiding in the nearby forests.198 The security situation then became complex because 193   K NCHR, The Mountains of Terror, A Report on the Investigations of Torture by the Military at Mt. Elgon, (2008,), at 3. The Mount Elgon case example is very similar to the long-standing conflict over land rights in the Tana Delta between the Pokomo (farmers) and Orma (pastoralists) communities that erupted again in 2012 with multiple clashes between heavily-armed groups that left over 120 persons dead and hundreds more injured and displaced from their homes. KNCHR, 29 Days of Terror in the Delta: KNCHR Account into the Atrocities at Tana Delta, (October 2012,), at 10, available at: http://www.knchr.org/ (last visited July 26, 2017). In the Tana Delta case, there is ample evidence of criminal/ terrorist activity on the part of both the Pokomo and the Orma communities, but the allegations raised against the security forces were largely focused on a failure to act on warning indicators and complaints regarding the use of excessive force. Id. at 32–38. The report also found that ethnic animosity, competition over land, the proliferation of small arms and light weapons from neighboring Somalia, and the presence of armed gangs were contributing factors in causing the conflict. Id. at 39–41. 194  Id. at 5–7. 195  Id. 196  Id. at 7. 197  Id. 198  This dispute involved the allocation of 1,735 plots of land; each plot involved five acres. The government used an explicit criterion for vetting the applicants that was supervised a group of elders from both sides. Id. at 6–7. The SLDF has since been forcibly disarmed by the government. Special Report, Availability of Small Arms and Perceptions of Security in Kenya: An Assessment, (Manasseh Wepundi, ed., June 2012), at 30–31.

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the SLDF began collecting illegal weapons and using terror tactics against local officials and corrupt land brokers, and the police in turn used excessive force, reportedly committing crimes against the civilian population, to flush out SLDF members.199 Eventually, with members of the public unwilling to volunteer information about the SLDF, military forces were deployed in March 2008 to restore peace in the area. Finally, local residents alleged that military personnel committed a range of crimes against the civilian population, to include arbitrary arrest, prolonged detention, torture, and extrajudicial killings.200 The investigation report by the Kenya National Commission on Human Rights (KNCHR) highlighted several important legal issues concerning this conflict and its characterization as either a law enforcement (criminal) problem or a non-international armed conflict. First, the KNCHR report states—but without explaining its applicability—that the government “has a direct responsibility and duty to repair any acts of individuals infringing on humanitarian rules which is [sic] confirmed by the Geneva Conventions of 1949….”201 Second, the KNCHR report then indicates that the government “cannot absolve itself of liability incurred by the Armed Forces in respect of grave breaches of International Humanitarian Law.”202 Third, the KNCHR report indicates that the military lacked legal authority—either under Article 85(1) of the Constitution or The Preservation of Public Security Act—for its use special public security measures such as the detention of persons, movement controls, censorship and prohibitions on communications.203 Fourth, the KNCHR report highlighted the need for the government to investigate the allegations that had been raised against military personnel and to hold culpable persons accountable. There are, however, significant shortcomings with the KNCHR report. Ini­ tially, it is by no means clear that the localized disturbances and criminal activity by the SLDF constituted a non-international armed conflict. This conflict was localized to the Mount Elgon district, involving competing claims over 1,735 five-acre plots of land; there is no evidence that the SLDF had broader political 199  I d. at 9–11. Many people claim that a lack of accountability and transparency, with particular concerns over corruption and human rights violations, have been long-standing problems with the Kenya Police Force and that, at least before the 2010 Constitution came into effect, it had “been a regime police, dedicated ultimately to the preservation of the government’s power and to the protection of vested interests, rather than to the advancement of the public interest.” Joshua Auerbach, Police Accountability in Kenya, Afr. Hum. Rts. L. J. 3 (2013), at 277. 200   K NCHR, The Mountains of Terror, at 13–14. 201  Id. at 3. 202  Id. at 3. 203  Id. at 17.

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claims. And, while one could characterize the SLDF as an “organized armed group,” there is no evidence that the group was under “responsible command” or that it exercised any territorial control. On one hand, one might make a weak argument that Common Article 3, but not Additional Protocol II, applied to this conflict based upon a breakdown in local law enforcement authorities with a resulting need to deploy military forces. On the other hand, the Kenyan military claimed that it had been “acting in of civil power to restore law and order in the area under Section 3(2) of the Armed Forces Act….”204 Thus, there is no evidence that the government itself recognized the application of either international humanitarian law or the Kenyan Geneva Conventions Act.205 In any case, Kenyan military personnel cannot be held accountable for grave breaches in a non-international armed conflict.206 A second interesting example of how a domestic disturbance can arise to a national security threat involves the 2008 post-election violence in Kenya. 204  Id. at 18. 205  This also raises issues about the possible application of The International Crimes Act, 2008, which makes provision for the punishment of certain international crimes and provides for Kenyan cooperation with the ICC. Thus, under the Rome Statute and the Kenyan enabling act, a person can be tried by the High Court for certain international crimes, provided that the accused is a Kenyan citizen, the accused is a citizen of a State in armed conflict against Kenya, the victim was a Kenyan citizen, or the victim was a citizen of a State that was allied with Kenya in an armed conflict. The International Crimes Act, 2008, article 8(b). Thus, there can be a conflict of laws in that Kenya might assert that a domestic disturbance had occurred and that certain offenses were properly punishable under Kenyan criminal law, but the ICC might assert that the situation was a non-international armed conflict and that the offenses should be tried under the Rome Statute. This would raise an issue under the Rome Statute, article 17, whether Kenya had unwilling or unable to carry out a good faith investigation or prosecution. The Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, UN Treaty Collection, https://treaties.un.org/pages/UNTSOnline.aspx?id=1 (last visited July 26, 2017); Kenya ratified this statute on Mar. 15, 2005. 206  One consequence of this determination that the conflict was non-international is that members of neither the SLDF nor the Kenyan military can be held criminally liable for “grave breaches” against civilians in violation of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Geneva Convention IV), Articles 146–47. See also Corn, LAW of ARMED CONFLICT, at 475–83 and 496–98, citing Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defense Motion on Jurisdiction (Aug. 10, 1995), and Prosecutor v. Delalic et al., Celebici: Case No. IT-96-21-T (Nov. 16, 1998)). Both the Tadic and the Celebici cases suggest an erosion of the distinctions between international and non-international armed conflict, especially as it relates to serious war crimes. Nonetheless, the analytic distinction remains and the “extradite or prosecute” obligation under Article 146 would probably not apply even though serious violations of the Common Article 3 are still arguably war crimes subject to universal jurisdiction.

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On December 30, 2007, the incumbent president, Mwai Kibaki of the Party of National Unity (PNU), was declared the winner of the contested election over his opponent Raila Odinga from the Orange Democratic Movement (ODM).207 Many people, however, regarded this result as manipulated; the ensuing political-ethnic violence involving spontaneous acts by individuals, attacks by organized armed groups on political opponents, and abuses by the police resulted in 1,133 persons killed, 117,216 destroyed properties, and approximately 350,000 internally displaced persons.208 In a real sense, the police can act as “terrorist” element against dissident groups opposed to the current government, as well as contribute to on-going problems through a lack of effectiveness in conducting counter-terrorism operations. Again, the recent efforts at police reform, to include the relevant provisions in the 2010 Constitution and the 2012 National Police Service Act, should help improve police effectiveness and institutional accountability over time. In sum, the prospective of political unrest and domestic disturbances raises several important points under Kenyan law. First, there is a need for enhanced police effectiveness and accountability to the law. In other words, if the local police had been able to maintain law and order in the first place, there might not be a need to deploy military forces to suppress the civil disturbances. Second, there is a need to demarcate domestic criminal (counterterrorism) law from international humanitarian law. Thus, the fact there has been a break­ down in local law enforcement authorities, with a need to deploy military forces in support of civil power, does not necessarily mean that the “disturbances” can be fairly characterized as a non-international armed conflict. One useful means to demarcate the transition might be a presidential proclamation/ decree under Articles 58 and 132(4)(d); this could greatly assist the judiciary in deciding applicable law (i.e., the Kenya Penal Code or the Geneva Conventions Act) with respect to offenses committed by government officials, military personnel, and member of local armed groups in any given situation. Third, in the case of the 2005–08 conflict in the Mount Elgon region, the KNCHR claimed that its investigators, the media, and human rights organizations had been restricted in the movements in the area and had been denied access to detention centers. In fact, prompt access by the KNCHR, the media and human rights organization can help protect the people from the use of excessive 207  Xan Rice, Kenyans Riot as Kibaki Declared Poll Winner, The Guardian, Dec. 30, 2007, https://www.theguardian.com/world/2007/dec/31/kenya.topstories3 (last visited July 25, 2017). 208  Furuzawa, Two Police Reforms in Kenya, supra n.159, at 59. The issues with respect to the divisive 2007 presidential elections have been documented extensively by the Kriegler and the Waki Commissions, supra n.17.

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force, as well as help the security forces from unfounded allegations of abuses. Fourth, the government has a clear obligation to investigate and prosecute domestic terrorism offenses, whether committed by civilians or police/military personnel, but there is evidence of significant shortcomings in that area. In general terms, the threat to Kenya posed by foreign and domestic terrorist groups is greatly exacerbated—even facilitated—by the supply and widespread availability of small arms, ammunition and explosives in the region. Indeed, the Small Arms Survey aptly describes the region as “awash with armaments,”209 with the supply problem as an “escalatory factor in the region’s armed conflicts, not a causal one.”210 Kenya’s problem with small arms proliferation stems in part from long-standing conflicts among pastoral groups competing for cattle and land use,211 conflict in neighboring countries with the flow of weapons and ammunition into Northern Kenya,212 and ineffective state

209  James Bevan, Kenya’s Illicit Ammunition Problem in Turkana North District, 19 (Occasional Paper No. 22, Small Arms Survey, 2008). As an example of the seriousness of the problem, as a result of two 2009 searches of a private residence in Narok, the police recovered over 130,000 rounds of small arms ammunition—produced by Kenyan and British military factories—and numerous weapons. Stephen Mudiari, Police seize a second arms cache in Narok, Daily Nation, Jan. 2, 2010, http://www.nation.co.ke/news/-/1056/854044/-/ view/printVersion/-/x7e73hz/-/index.html (last visited Aug. 24, 2017). This was reportedly the largest arms cache that had seized from a civilian in Kenya’s history. However, the criminal case against the accused has been protracted and has still not been concluded. Carole Maina, Narok’s large arms cache case drags on 7 years later, The Star, Aug. 30, 2016, http://www.the-star.co.ke/news/2016/08/30/naroks-large-arms-cache-case-drags -on-7-years-later_c1408994 (last visited Aug. 24, 2017). The defendants were charged under the Penal Code with possession of government property (uniforms and equipment) and under the Firearms Act with possession of ammunition without a valid firearm certificate. Republic v. Muneer Harron Ismail & 4 others, Criminal Revision No. 51 of 2009 (2010), eKLR. 210  Id. 211   Kennedy Agade Mkutu, Guns and Governance in the Rift Valley: Pastoralist Conflict & Small Arms 22–38 (2008) (examining the porous borders, customary pastoral conflict, the marginalization of the regional by the colonial and post-colonial governments, and the inability of the government to provide effective governance). In fact, Mkutu notes that cattle rustling has been traditionally seen as a means for the initiation of boys into manhood and the need to obtain cattle for the purchase of a bride. Id. at 17. Thus, a pastoralist typically needs weapons and ammunition for security against rival groups, as an economic asset, and as a means of establishing social status as a warrior/man. 212  Id. at 66–70 (describing the major routes for the flow of arms and ammunition from the conflict zones in Northern Uganda, Southern Sudan, Ethiopia, and Somalia into Northern and Central Kenya).

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responses.213 Thus, while Kenya may have appropriate statutory provisions that criminalizes the manufacture, possession or use of such war material, it has also been handicapped by foreign suppliers who cross into Kenya to sell to competing pastoral tribes, criminal gangs and terrorist groups, by a lack of state security forces in some rural areas that often compels individuals and groups to arm for self-defense, and—at times—by corrupt local officials who are complicit in the sale and/or transfer of illegal material. But, one writer also notes that “Kenya is known for developing good polices that too frequently remain on the drawing board.”214 The non-state groups are often well-armed, typically with AK-47 or SAR assault rifles, Heckler & Koch G3 rifles, PK machine guns, sub-machine guns, and even rocket-propelled grenades,215 and are able to engage in sustained combat with Kenya Police, Kenya Police Reserve (KPR),216 and military units. For example, on October 19, 2012, at least 42 police officers were killed in an ambush by over 100 cattle rustlers from the Turkana tribe,217 while in July 2004 at least 75 persons—including 25 children—were massacred in fighting

213  I d. at 116–45 (examining a failure to extend legitimate institutions of governance, the use of excessive force by police officers and military units, and a failure to address the root causes for the demand for small arms in the region). 214  Id. at 118. According to the June 2012 Special Report prepared by the Small Arms Survey and the Kenya National Focal Point (KNFP), there had been a total of 195 arrests nationwide in 2010–11 in cases involving the use of firearms/ammunition by criminals, but only 54 persons had been convicted. The leading provinces were the Rift Valley Province with 65 arrests (24 convictions), the Eastern Province with 50 arrests (6 convictions), and North Eastern Province with 29 arrests (9 convictions). Wepundi, Availability of Small Arms and Perceptions of Security in Kenya, supra n.198, at 82. 215  Id. at 127–39. See also Bevan, Kenya’s Illicit Ammunition Problem in Turkana North District, supra n.209, at 28–29 (examining the evidence that ammunition is traded/transferred between government-supplied agencies and non-state groups in the Turkana District, particularly since the ammunition used by Kenyan non-state groups in that area is different from and more homogenous in type than the ammunition used in neighboring countries). 216  The Kenya Police Reserve (KPR) is authorized by law under the 2011 National Police Service Act, and its officers typically serve as an unpaid locally-selected civilian militia force, often operating outside centralized control and living with the tribes (i.e., with the tribal kraals and caravans) that they protect. Agade, Changes and Challenges of the Kenya Police Reserve, supra n.191, at 210–15. Thus, the local KPR officers generally have substandard training and equipment, and with reduced effectiveness and less accountability for human rights abuses. 217  Eric Matara, Police Officers Killed in Baragoi were Young, had no Experience, Daily Nation, June 22, 2016, http://www.nation.co.ke/counties/nakuru/Baragoi-attack-case/1183314 -3261338-agjw6q/index.html (last visited Aug. 22, 2017).

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between cattle rustlers and local villagers.218 Both incidents illustrate the serious problems raised by the readily available arms and ammunition, some coming across Kenya’s porous borders and some sold by corrupt police officers, combined with a lack of police capacity in rural areas, as rival domestic—some of which are vigilante—groups terrorize each other and local communities. Minimally, this also means that strong penal statutes must be combined with effective law enforcement operations and criminal prosecutions. This leads to several important issues for the Kenyan government, in terms of addressing both the supply and demand aspects of its “gun culture” problem. First, on the supply side, there must be strong regional cooperation— likely through the EAC—with an effort to eliminate international arms smuggling through strong border controls and to coordinate disarmament campaigns (this is necessary to reduce the cross-border flow that occurs when a pastoral group moves to sanctuary over an international border in response to the actions taken in only one country).219 Currently, both Kenya and Uganda are non-parties to the 2013 Arms Trade Convention,220 even though both 218  Noor Ali & Garrick Anderson, Kenya Seeks Bandits after Massacre in Rural North, Reuters, July 15, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/14/ AR2005071401868.html (last visited Aug. 22, 2017). 219  The foreign ministers of five EAC Partner States, excepting South Sudan, as well as Sudan and Ethiopia, signed the 2000 Nairobi Small Arms Declaration. This non-binding resolution was a useful step forward with its recognition of the regional nature of the problem and the “devastating consequences [it has had] in sustaining armed conflict and abetting terrorism, cattle rustling and other serious crimes in the region.” The Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and The Horn of Africa (Nairobi, March 15, 2000), http://www.wcc-coe.org/wcc/what/international/nairobi.html (last visited Aug. 23, 2017). Subsequently, the EAC Partner States adopted the legally binding 2004 Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States, which entered into force on May 5, 2006, available at: http://www.smallarmssurvey.org/tools/ro-poa/profiles-of-regionalorganizations/africa/recsa.html. This comprehensive protocol covers the manufacture, possession, use and transfer of both small arms and ammunition. This overall effort led to the 2005 creation of the Nairobi-based Regional Centre on Small Arms in the Great Lakes Region, the Horn of Africa and Bordering States (RECSA) with its mission to ensure the effective implementation of the 2000 Nairobi Declaration and the 2004 Nairobi Protocol. Thus, Kenya has taken a lead role in the regional effort to control small arms and light weapons. 220   U N Arms Trade Treaty (ATT), entered into force Dec. 24, 2014, UN Treaty Collection, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002803628c4 &clang=_en (last visited Aug. 23, 2017). See also table 3, supra (Regional Parties to CT/ Human Rights Treaties/Conventions). Kenya has, however, adopted the 2001 UN

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countries face a range of domestic conflicts.221 This treaty calls for national control systems and restrictions on the transfer of conventional weapons, from tanks to small arms and ammunition, on the State Parties; the EAC Partner States should ratify and implement this treaty. Moreover, the government must eliminate its own supply of small arms ammunition to non-state groups and individuals. Thus, while some local transfers may be occurring for apparently laudable reasons (i.e., arming people for self-defense in situations in which the government itself cannot provide that service),222 government officials should not be transferring weapons and ammunition to persons not authorized by law to receive it under the 2015 Firearms Act. This would require strong physical security, inventory and record keeping practices at the local level. Second, on the demand side, the Kenya Police, the KPR, and military units deployed in support of civil authorities223 must be trained to a high standard—to include the appropriate limits on the use of force—and available for local use, helping to reduce the need for local groups to provide for their own security.224 This means that police officers must be held accountable for human right abuses, acts of corruption (e.g., the illicit sale of arms and ammunition to local clans and groups), and performance failures, likely through the IPOA.225 This also means that all government-owned arms and ammunition should be marked, a measure that should improve accountability Programme of Action on Small Arms and Light Weapons, UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, A/CONF.192/15 (calling for efforts at the national, regional and global levels to prevent, combat and eradicate the illicit trade in small arms and light weapons). 221  See, for example, table 6, supra (Major Regional Non-International Armed Conflicts). 222  Bevan, Kenya’s Illicit Ammunition Problem in Turkana North District, supra n.209, at 77–80 (noting that government-supplied ammunition has contributed to crime and lawlessness in the Turkana North District, to include its use in the May 2008 assassination of a UN employee in Lokichoggio). 223  This would, for example, include deployments taking place pursuant presidential decree made under articles 58 and 132(4)(d) of the 2010 Kenyan Constitution. 224  Reportedly, the United States has provided significant levels of security assistance to the Kenyan military and police services after the 9/11 attacks, but has done so by prioritizing security needs at the expense of human rights concerns. Ruteere & Ogada, Regional Challenge, Local Response, supra n.46, at 230–34. 225  Kenya has enacted a 2012 Witness Protection Act that provides “for the protection of witnesses in criminal cases and other proceedings to establish a Witness Protection Agency and provide for its powers, functions, management and administration, and for connected purposes.” Id. preamble. This agency, if appropriately funded and staffed, could provide an important tool for combating police abuses and improve community engagement in fighting terrorism.

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and curb corrupt practices.226 Moreover, with a boost in police resources— thereby enhancing investigations and prosecutorial effectiveness—Kenya could also boost its conviction rate, deterring more people from possessing or using illegal arms and ammunition in the first place. In any case, it is unlikely that any government-sponsored disarmament effort could be successful without legitimate, local governance structures that are supported by police/ security forces that operate within the rule of law. In general terms, Kenya probably needs a greatly expanded police presence—either the Kenya Police or the KPR—in the outlying counties. Locally recruited, community-based police officers would have many advan­ ages over the use of national-level assets in response to a crisis situation (i.e., the slow response to the April 2015 terrorist attack on Garissa College).227 On one hand, locally recruited officers would have a better appreciation for the local security and cultural dynamics, and would be better positioned to anticipate problems. Indeed, with a level of trust between the local police and the community, people would probably be more likely to report suspicious activity and feel less need for having privately owned weapons. On the other hand, an expanded KPR should likely remain under the operational control of the National Police Service and the IPOA, which could address concerns that an expanded KPR could be dominated by local politicians (i.e., mitigating against conflicts of interest, the demanding of favors, politicization, and clan bias),228 or that it could use its weapons for acts of criminality against rival groups.229 In any case, there is substantial evidence that the outlying counties are poorly staffed in police personnel, and that much greater efforts are required to fund, manage, train, equip, and discipline the existing structures.230 And, in the longterm, a better staffed, trained and equipped police service would have greater legitimacy with the people, enhancing its overall effectiveness and reducing insecurity.

226  Wepundi, Availability of Small Arms and Perceptions of Security in Kenya, supra n.198, at 75 (commending the government’s programme to mark all arms and ammunition). 227  See also van Metre, Community Resilience to Violent Extremism in Kenya, supra n.91 (examining six different neighborhoods in Nairobi and Mombasa and concluding that integrated communities that self-organize with community-focused security structures, such as neighborhood watch groups which consist of vetted individuals and Christian-Muslim associations, tend to develop a greater capacity to resist violent extremist groups). 228  Agade, Changes and Challenges of the Kenya Police Reserve, supra n.190, at 215. 229  Id. at 216. 230  Id. at 202–04.

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Kenya has taken several important steps in establishing control over and management of the problem involving small arms and light weapons. Initially, in November 2002, the government established the Kenya National Focal Point (KNFP) on Small Arms and Light Weapons (SALW) to “develop the policy on Small [Arms] and [Light] Weapons, establish a database on all state owned fire arms, provide civic education on the SALW and coordinate the implementation of National and international conventions on SALW.”231 This interagency directorate has subsequently completed several important initiatives, to include drafting new legislation and a national policy on SALW.232 The KNFP has a useful website that provides the public with access to information related to arms control and management; it works to improve state capacity through the training of officers at the district level. The UN Development Programme (UNDP) supports the work of the KNFP to step up its efforts to reduce the proliferation of small arms,233 and the Government of Kenya provides useful periodic reporting on its progress using the National Reporting Tool.234 231  Office of the President, Republic of Kenya, Kenya National Focal Point and Small Arms and Light Weapons (Website), http://www.interior.go.ke/index.php/2015-02-28-06-43 -52/state-department-of-interior/small-arms-control-management (last visited Aug. 23, 2017). 232   Chris Bordeleau, Kenya Making Progress on SALW Reduction, Centre for Security Governance, July 24, 2013, http://secgovcentre.org/2013/07/kenya-making-progress-onsalw-reduction/ (last visited Aug. 23. 2017) (estimating that SALW possession in Kenya is in the range of 530,000–680,000 firearms). The 2006 Kenya National Action Plan for Arms Control and Management, published by the KNFP, assessed the problem involving the possession and use of small arms in country, to include state capacity to address the problem, and then provided an overall framework and focus for the national effort to address the proliferation of small arms. The assessment made many important findings, to include the need for a review of national legislation with respect to civilian ownership, stockpile management, ammunition manufacturing, regional agreements on the transit of goods, and import/export controls. KNFP, Kenya National Action Plan for Arms Control and Management (2006). See also KNFP, Country Report to the Fourth UN Biennial Meeting of States on the Status of Implementation of the UN Program of Action on Illicit Small Arms and Light Weapons and the International Tracing Instrument (2010) (addressing causal factors to the proliferation of small arms and light weapons in Kenya and the progress made on implementation of Nairobi Declaration and Protocol). 233   U N Development Programme, Small Arms and Light Weapons, http://www.ke.undp .org/content/kenya/en/home/operations/projects/peacebuilding/smallarms.html (last visited Aug. 23, 2017). 234  In a 2016 report, Kenya reported five implementation challenges with its disarmament efforts: “1. Vast and unmanned porous borders 2. Inadequate funding towards effective implementation of Small Arms Control Programmes. 3. Threat of terrorism. 4. Limited technological facilities for improved surveillance and detection of illicit SALW. 5. Limited number of marking machines and constant breakdown of existing ones.” UN Programme of Action, Implementation Support System (PoA-ISS), Country Profile (Kenya), http://

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Nonetheless, a June 2012 Special Report, jointly produced by the KNFP and the Small Arms Survey, offered several troubling findings: – there may be between 530,000 to 680,000 weapons in civilian hands; – despite several important disarmament campaigns in conflict zones, such as Mt. Elgon and the Rift Valley, there have been significant increases in weapons possession since 2003; – people reported feeling most insecure during election periods; about 20 percent of the responding households had experienced crime in the prior year; – more than one-third of people who had experienced crime had been confronted with a firearm; and – law enforcement agencies have apparently been more optimistic than civil society organizations about current efforts to curb firearm proliferation.235 In overall terms, this report, the “first comprehensive arms mapping in the region since the formulation of the RECSA Best Practice Guidelines,”236 illustrates the serious nature of Kenya’s small arms problem and offers some useful recommendations. This report indicates that many people are reluctant to relinquish firearms during government disarmament campaigns, largely because of concerns about the inadequate police presence and local underdevelopment (that is, reflecting the notion that the possession of a weapon is an economic asset).237 This report recommended improvements in Kenya’s policing capacity, to include increased presence and visibility in affected areas, adequately equipping law enforcement agencies, strengthening law enforcement agency-public information, strengthening the government’s capacity to investigate and prosecute cases, improving law enforcement www.poa-iss.org/Poa13/CountryProfiles/CountryProfileInfo.aspx?CoI=101&pos=1000 (last visited Aug. 24, 2017). 235  Wepundi, Availability of Small Arms and Perceptions of Security in Kenya, supra n.198, at 20. 236  Id. at 93. The RECSA Guidelines, also known as the Best Practice Guidelines for the Implementation of the Nairobi Declaration and the Nairobi Protocol on Small Arms and Light Weapons, aimed to “elaborate a framework for the development of policy, review of National legislation, general operational guidelines and procedures on all aspects of SALW, required for implementation, by the Nairobi Protocol.” The RECSA Guidelines, at 4, https://www.sipri.org/node/2919 (last visited Aug. 26, 2017). 237  Wepundi, Availability of Small Arms and Perceptions of Security in Kenya, supra n.198, at 30.

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intelligence, and streamlining the management of the KPR to ensure greater discipline and accountability.238 3.4

Counterterrorism Assessment and Recommendations

The Government of Kenya has faced four major terrorist threats over the past 25–30 years, in part because of its own challenges in governing an ethnically diverse population and in part because of its positioning in the Horn of Africa straddling the divide between the Arab and largely Muslim North Africa and the black and largely Christian Sub-Saharan Africa. Kenya has faced threats emanating from al Shabaab, which is fighting a non-international armed conflict against the internationally recognized Federal Government of Somalia, from domestic terrorists and foreign fighters who conduct attacks in Kenya against military and civilian targets, from foreign-based terrorist organizations—such as al Qaeda—which conduct attacks against Western targets in Kenya, and from domestic—largely ethnic and tribal—groups over unresolved political and social grievances. Indeed, Kenya has experienced a range of increasingly serious string of terrorist attacks over the past five years, with some attacks seeing a large number of casualties (e.g., 62 dead at the September 2013 siege of the Westgate Mall and 87 dead in the June–July 2014 attack at Mpeketoni) and most attacks involving civilians and civilian facilities (e.g., hotels, shopping centers, busses, quarry workers, and college students). Kenya has responded to this challenge with a broad mix of legal tools, by enacting a new 2010 Constitution that enshrines a respect for civil liberties and a strengthened judiciary and by passing a range of new statutes that provide a strong set of counterterrorism tools. Nonetheless, while Kenyan law is largely compliant with the country’s obligations under international law—to include the comprehensive obligations under UNSCR 1373 and UNSCR 2178, there have been major shortcomings in detention practices, with the continued use of extraordinary rendition, with police capacity/effectiveness, with the continued use of torture and other abusive police practices, and with the trial of cases by qualified prosecutors before well-trained judges. In overall terms, Kenya’s security problem has been greatly complicated by corrupt government officials, a limited government and police presence in outlying areas, a large refugee population that has been confined to impoverished camps, and a large volume of illegally owned small arms. 238  Id. at 94–95.

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The new 2010 Constitution is an important step forward for Kenya, with its institutionalized system of checks and balances, to include the strengthened role of the judiciary, the explicit inclusion of a judicially enforceable Bill of Rights, the devolution of political power from nine provinces to 47 counties, and the recognition of Kadhis’ (Muslim) courts. The strengthened role of the judiciary is a particularly important legal step, particularly since there is evidence of weak criminal investigations—combined with abusive detention and interrogation practices—by police, the use of police prosecutors, and shortcomings in decision-making by trial judges. The devolution of political power to 47 counties with the explicit recognition of religious courts is also an important legal step that could help ameliorate some local political grievances. Some efforts at statutory legal reform have borne fruit over the past five years, to include a 2012 Prevention of Terrorism Act that defines a “terrorist act” and “terrorism,” providing a useful supplement to the long-standing prohibitions for various substantive and facilitative offenses that have been criminalized under the Penal Code. Kenya undoubtedly needs an expanded police presence, whether through the Kenya Police and/or a strengthened KPR, as well as enhanced police oversight through the IPOA.239 In general terms, Kenyan law is compliant with its counterterrorism obligations under international law, whether those obligations are imposed by treaty or the UN Security Council through its Chapter VII authorities. Kenya should, however, ratify the 2006 Convention on Enforced Disappearances240 and the 2013 Arms Trade treaty.241 Kenya has made uneven progress with respect to the use of torture and other cruel, inhuman or degrading practices over the past five years. First, Kenya has taken steps to improve its cooperation with the Committee against Torture 239  S ee, for example, Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, (concluding observations adopted with respect to Kenya, 9–27 July 2012), U.N. Doc. CCPR/C/KEN/CO/3 (Aug. 31, 2012), para. 11 (“The Committee is concerned at the slow pace of investigations and prosecutions into allegations of torture, extrajudicial killings by the police and by vigilante groups”). In addition, the HRC noted that Kenya should ensure that torture victims are adequately compensated, that there are continuing reports of widespread unlawful and arbitrary arrests by police, that not all persons are brought before a magistrate within the constitutionally set period of 24 hours from arrest, and that the right of arrested persons to contact counsel is often not respected. 240   I nternational Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), entered into force Dec. 23, 2010. See table 2, infra. 241   U N Arms Trade Treaty (ATT), entered into force Dec. 24, 2014, UN Treaty Col­ lection, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002803628c4& clang=_en (last visited Aug. 23, 2017).

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by adopting the optional reporting procedure and through its submission of periodic reporting.242 At that time, the Committee noted several areas of continuing concern, to include allegations of extrajudicial killings and the disproportionate use of force, the failure of the State to investigate all allegations of torture and ill-treatment by police officers, the persistent allegations of arbitrary arrests and police corruption, and problems with the payment of adequate compensation to the victims of torture and ill-treatment.243 The Committee did, however, note the commendable increase in the budget allocation for police training, even with the limited scope of the current training programme.244 Second, the Kenyan courts have tried and decided a number of recent civil cases against the government based upon allegations of torture and other ill-treatment, although the government has generally elected not to defend itself in any of these cases, it has also left many—if not all— judgments unpaid.245 Third, Kenya has enacted a 2016 Prevention of Torture Act that criminalizes torture and cruel, inhuman or degrading treatment or punishment, punishable by a fine and a maximum of 25 years imprisonment. This statute is an important step forward with its prohibitions on the use of information, confessions or admissions in subsequent legal proceedings.246 Moreover, the statute provides that there shall be no immunity or amnesty granted to any person who has been accused torture or cruel, inhuman or degrading treatment or punishment.247 There are three important documents that outline international “best practices” with respect to general national counterterrorism law and practice; the Government of Kenya should adopt those “best practices.” First, the UN

242   Committee Against Torture, Concluding Observations on the Second Periodic Report of Kenya, adopted by the Committee at its Fiftieth Session (6 to 31 May 2013), U.N. Doc. CAT/C/KEN/CO/2 (June 19, 2013). 243  Id. paras. 6–23. 244  Id. at para. 24. 245  See KNCHR, Footprints of Impunity: Counting the Cost of Human Rights Violations (Nairobi, undated), available at http://www.knchr.org/ (last visited July 22, 2017) (noting that 126 suits have been filed against the government and with the government largely permitting default judgments against it). See also UN Human Rights Committee (ICCPR), Special Rapporteur for Follow-up to Concluding Observations of the Human Rights Committee, Letter from Sarah Cleveland, Follow-up to the Examination of the Third Periodic Report of Kenya (105th session), dated Dec. 10, 2015, p. 2 (the “Committee also regrets that although the Cabinet for Internal Security acknowledged that approximately [U.S. $] 2,400,000 is owed to victims of torture, there has been no budget to pay this compensation.”). 246   P revention of Torture Act (2016), art. 9(1). 247  Id. art. 10.

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Special Rapporteur has issued two useful reports.248 The most recent, the 2010 report, provides that counter-terrorism legislation should be consistent with obligations under international human rights, humanitarian and refugee law. The report offers useful recommendations on the use of the principles of normalcy and specificity, the need to provide effective remedies for violations of human rights, a model definition of terrorism,249 a model offense of incitement to terrorism, best practices with respect to the listing of terrorist entities, and best practices in the arrest and interrogation of terrorist suspects. Second, the KNCHR has also prepared its own report that, while lacking the depth of the reporting by the Special Rapporteur, it does contain many useful points in terms of Kenyan law and practice.250 This report, for example, makes several specific recommendations that should be adopted with respect to the state organs entrusted with counter-terrorism duties: the government should adopt better coordination mechanisms, the government should provide sufficient funding and resources, the security organs should be trained on human rights law, and the judiciary should hold all public officers accountable for their actions under the 2010 Constitution and statutory law.251 Thus, the government should probably consider the nine sections, to include the provisions on the offense of incitement to terrorism and the detention of terrorism suspects,252 of the 2014 Security Laws (Amendment) Act that were found unconstitutional.253 248  Economic and Social Council, Commission on Human Rights, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin (Dec. 28, 2005), U.N. Doc. E/CN.4/2006/98; Human Rights Council, General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin, U.N. Doc. A/HRC/16/51 (Dec. 22, 2010). 249  The principle of normalcy provides that “measures against terrorism shall be taken by the civilian authorities entrusted with the functions relating to the combating of crime, and in the exercise of their ordinary powers.” Id. at 11. This also means that, unless there is a threat to the “life of the nation” with a resulting need for a state of emergency, terrorism does not trigger emergency powers. The principle of specificity means that where the “law includes particular provisions that, for a compelling reason, are considered necessary in combating terrorism and entrust certain authorities with specific powers for that reason, the use of such powers for any purpose other than the combating of terrorism  … is prohibited.” Id. 250   K NCHR, Report on Securing National Security & Protection of Human Rights, supra n.93. 251  Id. at 52–53. 252  See also Stigall, Counterterrorism and the Comparative Law of Investigative Detention, supra n.133 (offering comparative approaches in terrorist detention from American, British and French perspectives). 253   C ORD & 2 Others v. Republic of Kenya, supra n.51.

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In sum, Kenya has a strong and comprehensive framework for counterterrorism law with some areas that require refinement. Nonetheless, Kenya’s primary need is to modernize its counter-terrorism practice to ensure compliance with international standards in the arrest, detention, interrogation, extradition and trial of terrorism suspects. Kenya has a particular need to train and expand its police and security services to ensure a community-presence throughout the country and to ensure compliance with international human rights norms. In some challenging areas, involving serious domestic conflict or operations in Somalia, Kenyan officials should proceed from the principle of normalcy and a law enforcement paradigm that is consistent with international human rights law. Here, Article 58, combined with Article 132(4)(d), of the 2010 Constitution puts an appropriate brake on the President’s power to declare a state of emergency and make the transition from domestic disturbances/ criminality to non-international armed conflict. In any case, there several important recommendations for Kenyan policy­ makers in terms of more effective counterterrorism law and practice. First, Kenya should ratify and implement the 2013 Arms Trade Convention. This convention addresses the regional problem raised by the proliferation of small arms and light weapons in the Horn of Africa. On one hand, the Kenyan government has already taken strong steps to combat the problem with the signing of the 2000 Nairobi Small Arms Declaration, by adopting the 2001 UN Programme of Action on Small Arms and Light Weapons, by adopting the legally binding 2004 Nairobi Protocol, and with the 2005 creation of the RECSA. Indeed, Kenya has taken a strong lead over the past years in terms of combating the proliferation of small arms and light weapons, to include calling on the UN to support this treaty in the first place.254 In fact, many Kenyan parliamentarians recognize the all-too apparent threat of small arms and light weapons to the country.255 But, according to the parliamentarians, “The Cabinet Secretary has explained that Kenya was not able to sign the treaty on 3rd June, 2010 due to lack of administrative and legal requirements in accordance with our new Constitution which came into force in the year 2010.”256 It is not, however, clear what is meant by this; in any case, given the severity of the terrorist threat, this hurdle should be cleared without delay. 254  Amnesty International, UN: Atrocities Fueled by Inaction on Arms Trade Treaty Promises, Apr. 1, 2014, https://www.amnesty.org/en/latest/news/2014/04/un-atrocities-fuelled -inaction-arms-trade-treaty-promises/ (last visited Feb. 10, 2018). 255   Parliament of Kenya (Senate), Parliamentarians for Global Action 37th Annual Parliamentary Forum, San Salvador, Nov. 30–Dec. 1, 2015, http://www.pgaction.org/pdf/ Musila-37th-Forum-Presentation.pdf (last visited Feb. 10, 2018). 256  Id. at 4.

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Second, Kenya should adopt some of the “best practices” recommended by the UN Special Rapporteur and the KNCHR with respect to counterterrorism legislation. Here, the government should adopt better coordination mechanisms among law enforcement authorities to ensure that the poorly executed responses at Westgate Mall and Garissa University do not reoccur; provide greater funding and resources to the police and security services to ensure a community-presence throughout the country, to include ensuring adequate training in human rights standards; provide greater funding to the Director of Public Prosecutions such that the use of police prosecutors can be eliminated; and ensure that the judiciary holds police and security officials accountable for human rights abuses. One difficult problem, involving the provisions in the 2014 Security Laws (Amendment) Act (SLAA) with respect to the incitement to terrorism and the detention of terrorism suspects, should be reconsidered by the Kenyan Parliament. This change in law, however, should not be rushed through parliament; policymakers should allow ample time for public debate and parliamentary study. Indeed, there are many valid approaches to restrictions on free speech that can be considered, but there must be public acceptance of the necessity for such restrictions in a democratic society, to include appropriate safeguards to protect against disproportionate government responses, consistent with the 2010 Kenyan Constitution.

Chapter 4

Counterterrorism Law and Practice in Uganda 4.1

Introduction: Ugandan Law and Practice

Recent Ugandan history has been marked by significant human rights abuses, to include the notorious period of state terror during the period 1971–85, a period in which as many as 800,000 Ugandans may have died,1 to current concerns over civil and political rights under the semi-authoritarian regime led by President Yoweri Museveni and the National Resistance Movement (NRM).2 Uganda has, in many respects, made significant improvements in its human rights record since the NRM took power in 1986.3 But, while there have been 1  Ali Mari Tripp, Museveni’s Uganda: Paradoxes of Power in a Hybrid Regime 23 (2010). Idi Amin was, however, initially very popular among Africans, often hailed as “the man who liberated Uganda from the despotic and oppressive rule of President Milton Obote.” Manzoor Moghal, Idi Amin: Lion of Africa 6 (2000). Initially, Amin made several moves that were popular among Ugandans, to include the return of the Kabaka’s body from its temporary place of burial in London; the release of political prisoners who had been detained on the orders of President Milton Obote; his August 1972 expulsion of the Asian community (as part of his “economic war” to transfer property from Asians into the hands of black Africans); his 1975 humiliation of Britain and British Foreign Secretary James Callaghan in the case of Dennis Hills (a British national who had been jailed, convicted by military tribunal on charges of treason, and sentenced to execution); and his conduct while hosting the July 1975 Organisation of African Unity (OAU) Summit in Kampala (having four white residents of Kampala carry him into a party in a chair on their shoulders, thus illustrating “the white man’s burden.”). Id. 45–151. 2  See, for example, Human Rights Watch, The Movement System and Political Repression in Uganda (1999) (examining the early years of Museveni’s “no-party” state under the National Resistance Movement and its slow evolution to a limited form of multiparty politics). Uganda did adopt multi-party elections in 2005, but the NRM-dominated government has used repressive tactics, to include heavy-handed police tactics, arbitrary detention and torture in secret and illegal facilities (i.e., safe houses), and charges of treason and sedition that can be used to detain someone who might be accused of promoting “sectarianism”—although that person might be later released without a trial. 3  There is considerable evidence that persons responsible for human rights abuses in the Idi Amin regime have never been held accountable for the reign of terror that included cruel, inhuman or degrading treatment or punishment; enforced disappearances; and extrajudicial killings. Instead, after initial hearings led by Supreme Court Justice Arthur H. Oder after the NRM came to power in 1986, the Oder Commission eventually ran out of money, reflecting a change in the political priorities of the new Museveni government to favor reconciliation in favor of justice. See generally Michael T. Kaufman, Idi Amin, Murderous and Erratic Ruler of Uganda in the 70’s, Dies in Exile, N.Y. Times, Aug. 17, 2003, http://www.nytimes

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significant advances in the empowerment of women, popular participation in local government and the role of the judiciary as a check on executive power, Uganda still has a semi-authoritarian government that is dominated by the military (the Uganda People’s Defence Force, UPDF) and a president who has been in office for over thirty years.4 Uganda also faces a diverse range of national security threats, ranging from al Shabaab elements emanating from Somalia; the dying remnants of Joseph Kony’s Lord’s Resistance Army (LRA), currently believed to be in the eastern Central African Republic;5 a domestic political opposition, centered largely among the Baganda peoples in south-central Uganda and the Acholi peoples in the northern districts; and the largely ungoverned and deprived Karamoja region along the border with Kenya.6 Thus, the primary threats to Uganda’s national security arise from terrorist attacks mounted by non-state actors, to include some risk that ethnic groups discontented over election results or the division of natural resources7 could bring about domestic violence, civil disturbances and even a state of non-international armed conflict. In theory, Uganda can investigate and prosecute persons for a wide range of terrorism-related offenses under existing national law. Uganda, since its 1962 independence from Great Britain, has experienced political instability, with .com/2003/08/17/world/idi-amin-murderous-and-erratic-ruler-of-uganda-in-the-70-s-dies -in-exile.html (last visited Oct. 8, 2017). One interesting story involves Ugandan lawyer Duncan Laki, the son of a slain Ankole regional official, and his efforts to find his father’s remains and bring his killers to justice after his September 1972 disappearance. Andrew Rice, The Teeth May Smile But the Heart Does Not Forget: Murder and Memory in Uganda (2009). 4  Josh Kron, Yoweri Museveni, Uganda’s President, Wins a Widely Criticized Election, N.Y. Times, Feb. 20, 2016, https://www.nytimes.com/2016/02/21/world/africa/yoweri-museveni-ugandaspresident-wins-a-widely-criticized-election.html (last visited Oct. 8, 2017); Elias Biryabarema, Uganda Seeks Constitutional Change That Would Let Museveni Extend Rule, U.S. News & World Rep., July 14, 2017, https://www.usnews.com/news/world/articles/2017-07-14/ uganda-seeks-constitutional-change-that-would-let-museveni-extend-rule (last visited Oct. 8, 2017). 5  Zack Baddorf and Eric Schmitt, Hunt for Joseph Kony, No Longer Seen as a Threat, May Shrink, N.Y. Times, Mar. 22, 2017, https://www.nytimes.com/2017/03/22/world/africa/ joseph-kony-congo-africa.html (last visited Oct. 8, 2017). 6  James Bevan, Crisis in Karamoja: Armed Violence and the Failure of Disarmament in Uganda’s Most Deprived Region (Small Arms Survey, 2009). 7  Francis Mugerwa, Oil gives Bunyoro a new lease of life, Daily Monitor (Kampala), Aug. 28, 2013, http://www.monitor.co.ug/SpecialReports/Oil+gives+Bunyoro+a+new+lease+of+ life/-/688342/1970312/-/a626kq/-/index.html (last visited Oct. 8, 2017); Oil in Uganda Staff, Land fraud on the rise in Bunyoro, Oil in Uganda, July 12, 2016, http://www.oilinuganda .org/features/land/land-fraud-on-the-rise-in-bunyoro.html (last visited Oct. 8, 2017).

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periods of civil unrest and serious human rights violations.8 Nonetheless, the 1995 Constitution, the third since independence, provides for an independent judiciary with significant powers. While the administration of justice in Uganda has evolved in many positive respects over the past 20 years, Ugandan law—constitutional, statutory and decisional—has shortcomings in certain areas and the courts lack experience in complex criminal and war crimes cases. This suggests that, despite great efforts to modernize Ugandan law and practice, its courts would face important challenges in adjudicating complex, high profile criminal cases in a fair and consistent manner that would be respected by disinterested and affected persons alike. In short, terrorism offenses aren’t garden-variety criminal cases, but can involve a wide range of acts with complex legal and evidentiary issues that the Ugandan judiciary has rarely, if ever, faced. 4.2

The Administration of Justice: Courts, Statutes and Issues

Uganda was a British protectorate from 1892 until its independence on October 9, 1962. Subsequently, the country passed through several periods of military rule (the Idi Amin, Tito Okello and Museveni regimes) and marked human rights abuses. Eventually, in 1987 Yoweri Museveni seized power and established a new government. The 1995 Constitution provides for the overall structure of the government and outlines a series of rights and freedoms.9 Of note, the Constitution proscribes retroactive criminal laws and double jeopardy.10 The Constitution creates a legislature (the Parliament), an Executive 8  Francis M. Ssekandi & Cos Gitta, Protection of Fundamental Rights in the Uganda Constitution, 26 Col. Hum. Rts. L. Rev. 1919 (1994). 9  T he Constitution of the Republic of Uganda (1995), Articles 20–45 provide for a range of human rights to include freedom from discrimination, right to life, protection of personal liberty, respect for human dignity and protection from inhuman treatment, privacy, right to a fair hearing, the protection of minorities, and the right to access information. Articles 51–58 create the Uganda Human Rights Commission. This commission is charged with investigating human rights complaints, visiting detention facilities, conducting research and education programs, and monitoring the government’s compliance with international legal obligations. The commission has subpoena powers and the power to hold people in contempt. The commission may not, however, investigate any matter that is before a court or judicial tribunal. 10  Id. art. 28 (Right to a fair hearing). This article also provides for a presumption of innocence; the right to be informed of proffered charges; the right to appear in person in court with legal representation; in the case of offenses warranting the death penalty or imprisonment for life, legal representation at state expense; the assistance of an interpreter; and the right to compel the attendance and cross-examination of witnesses.

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(the President), Cabinet (to include both an Attorney General11 and a Deputy Attorney General),12 a Director of Public Prosecutions (DPP)13 who directs police investigations and criminal prosecutions, and a judiciary. On national security matters, the Constitution creates the UPDF,14 the Uganda Police,15 the Uganda Prisons Service,16 and intelligence services.17 This basic structure of government, particularly as it relates to the “movement” (a non-party form of government, with compulsory membership), is unique and has been heavily criticized as a means of repressing political and civil liberties.18 The Ugandan judiciary is based upon the legacy of British rule; the English legal system, to include a hierarchy of courts that adjudicate cases based upon Unlike some other common law countries, Uganda does not use jury trials in criminal cases but the High Court does employ two or more lay “assessors,” as the court sees fit, in criminal matters. The assessor is a non-lawyer who is appointed by the court to listen to serious cases and to provide an opinion on whether the court should either acquit or convict the accused person; the assessors’ opinion is not binding on the trial court. Compare Republic of Uganda, The Magistrates Act, 1971, art. 26–28, with Republic of Uganda, Trial on Indictments Act, 1971, art. 3. Moreover, a person who has been previously convicted or acquitted of a crime cannot be retried for the same offense. Id. art. 28. In other words, unlike in the United States, the prohibition on double jeopardy in Uganda does not attach after the swearing of the first witness (or the empaneling of a jury) in a criminal trial but only upon conviction or acquittal. See generally Crist v. Bretz, 437 U.S. 28 (1978). 11   C onst. Rep. of Uganda (1995), Article 119, the Attorney General serves as the principal legal adviser of the government, to include representing the government in court. 12  Id. art. 119A. 13  Id. art. 120. 14  Id. art. 208–10. Under Article 210 (b), Parliament has the power over the “recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruiting from every district of Uganda.” No doubt, this latter provision was enacted to overcome the earlier British practice of recruiting soldiers largely from the northern districts to ensure a “national” army. Parliament, in turn, has passed two statutes regulating the UPDF: the UPDF Act, 1992 and the UPDF Act, 2005. Both UPDF Acts address military justice matters, to include court martial authorities, structures, individual rights and procedures. While the 2005 Act is more detailed and provides better coverage of the issues, there are still due process concerns with the statute to include overbroad and vague articles, the lack of a right to defense counsel in trial proceedings, the application of the statute to persons not belonging to the UPDF or “accompanying the force,” and with the application of the death penalty. 15   C onst. Rep. of Uganda (1995), art. 211–14. 16  Id. art. 215–17. 17  Id. art. 218. 18  See generally Human Rights Watch, Hostile to Democracy: The Movement System and Political Repression in Uganda (1999).

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statute, English common law, to include its customs and practices, has left an enduring imprint on the Ugandan judiciary that continues to the present day. The 1995 Constitution provides for courts of judicature to include a Supreme Court of Uganda, the Court of Appeal of Uganda, the High Court of Uganda, and such subordinate courts as may be established by Parliament.19 In turn, Parliament has passed statutes that are applicable to a wide range of national security issues and the judiciary has decided a small body of relevant cases. Nonetheless, Uganda has a nascent structure, processes and procedures, as well as judicial experience, for addressing the complex issues in national security cases. Uganda has several important statutes that are applicable to the range of offenses that can be applied to terrorism offenses, to include acts committed by either military personnel or civilians. The basic criminal law is the Penal Code Act of 1950. Article 4(2) provides for extra-territorial jurisdiction over Ugandan citizens who commit certain crimes abroad, to include treason, which includes levying war against Uganda (Article 23); offenses against the President (Article 24); concealment of treason (Article 25); terrorism (Article 26); and promoting war (Article 27); with a five year statute of limitations for offenses under Articles 23, 24, 25, and 26.20 The Penal Code Act of 1950 has articles on treason and terrorism that sweep broadly and are subject to abuse. A person can commit treason in different ways; some sub-sections require an overt act and other sub-sections can be violated by forming “an intention.” A person can violate the terrorism article largely through political acts that support an organization; this has, however, been superseded by the Anti-Terrorism Act 2002 (infra).21 Some terrorists, particularly persons involved in a non-international armed conflict, can be prosecuted for treason to the extent that they have levied war against the nation, plotted and acted to overturn the government, and aided and abetted others in doing so. The 1950 Penal Code provides: 23. Treason and offences against the State.22 (1) Any person who— (a) levies war against the Republic of Uganda; unlawfully causes or attempts to cause the death of the President … 19   C onst. Rep. of Uganda (1995), art. 129. 20   T he Penal Code Act, 1950. 21   T he Anti-Terrorism Act, 2002. 22  Id. art. 23.

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(b) contrives any plot, act or matter and expresses or declares such plot, act or matter by any utterance or by any overt act in order, by force of arms, to overturn the Government as by law established; (c)  aids or abets another person in the commission of the foregoing acts, or becomes an accessory before or after the fact to any of the foregoing acts or conceals any of those acts, (d) commits an offence and shall suffer death. (2) Any person who forms an intention to effect any of the following purposes— (a) to compel by force or constrain the Government as by law established to change its measures or counsels or to intimidate or overawe Parliament; or (b) to instigate any person to invade the Republic of Uganda with an armed force, and manifests any such intention by an overt act or by any utterance or by publishing any printing or writing, commits an offence and shall suffer death. (3–4)…. Moreover, members of a terrorist organization, as defined under Ugandan criminal law, can be prosecuted for a range of firearms offenses under Article 26(4). The 1950 Penal Code provides: 26. Terrorism.23 (1) Any person who engages in or carries out acts of terrorism commits an offence and is liable to imprisonment for life. (2) Any person who aids, finances, harbours or in any other way renders support to any other person, knowing or having reason to believe that such support will be applied or used for or in connection with the commission, preparation or instigation of acts of terrorism, commits an offence and is liable to imprisonment for life. (3) Any person who either— (a) belongs or professes to belong to a terrorist organisation; or (b) solicits or invites financial or other support for a terrorist organisation or knowingly makes or receives any contribution in money or otherwise to the resources of a terrorist organisation, commits an offence and is liable to imprisonment for ten years; except that a person 23  Id. art. 26.

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belonging to a terrorist organisation shall not be guilty of an offence under this subsection by reason of belonging to the organisation if he or she shows that he or she became a member when it was not a terrorist organisation and that he or she has not since he or she became a member taken part in any of its activities at any time while it was a terrorist organisation. (4) Without prejudice to the right to adduce evidence in rebuttal, any person who imports, sells, distributes, manufactures or is in possession of any firearm, explosives or ammunition without a valid licence or reasonable excuse shall be deemed to be engaged in acts of terrorism. (5) The Minister responsible for internal security may, with the prior approval of the Cabinet, declare any organisation engaged in or carrying out acts of terrorism to be a terrorist organisation for the purposes of this section. (6) In this section, “terrorism” means the use of violence or a threat of the use of violence with intent to promote or achieve political ends in an unlawful manner and includes the use of violence or a threat of the use of violence calculated to put the public in such fear as may cause discontent against the Government. In 1964 Uganda passed The Geneva Conventions Act; this statute essentially “domesticated” the 1949 Geneva Conventions.24 The Act provides that any “person, whatever his or her nationality, who commits or aids, abets or procures the commission by any other person of any grave breach,” as defined in Geneva Conventions I–IV, commits an offense and is liable to punishment for up to life imprisonment.25 It is also noteworthy that the Act provides for extra-territorial (long arm) jurisdiction where “an offense under this section is committed without Uganda, a person may be proceeded against, indicted, tried and punished for that offense in any place in Uganda as if the offense had been committed in that place….”26 While Uganda is also a signatory to the Genocide Convention,27 this treaty has not been domesticated into Uganda 24   T he Geneva Conventions Act 1964. 25  Id. art. 2. 26  Id. 27   T he Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948 (entered into force Jan. 12, 1951), UN Treaty Collection, http://legal.un.org/avl/ha/cppcg/cppcg.html (last visited Sept. 12, 2017).

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law.28 Contrary to emerging international practice, Uganda does still impose the death penalty for a range of offenses.29 The UPDF, as indicated, is governed under a separate statutory basis.30 While either the 1992 or the 2005 UPDF Act could be readily applied to a wide range of war crimes committed by soldiers, there are also limited provisions that be readily applied to terrorism cases. In any case, there are important questions about the competence, independence, and impartiality of Uganda’s military justice system.31 Both the 1992 and the current 2005 UPDF Act fail to provide adequate structure and processes for a fair trial, as applied to either military members or civilians. The 1992 UPDF Act proscribed a range of offenses and created a military justice system that is independent of the Uganda judiciary.32 Article 15 provides for jurisdiction over military members and certain non-members 28   The Republic of Uganda (Parliament), Report of the Committee on Defense and Internal Affairs on the Petition on the Lapsing of Part II of The Amnesty Act, 2000 (August 2013), 27. 29  See The Penal Code Act, June 15, 1950. Uganda’s application of the death penalty has been roundly criticized over the past 10–15 years, in part because it had been automatically applied to a wide range of criminal offenses and in part because it is inconsistent with emerging international norms. For example, in 2005, the Constitutional Court ruled that its mandatory imposition was unconstitutional because it did not allow a trial court to consider any mitigating circumstances that might make the death penalty an unduly severe punishment and did not allow a trial court any discretion in determining an appropriate sentence. Susan Kigula & 416 Ors v. Attorney General, Constitutional Petition No. 6 of 2003 (2005) UGCC 8. In fact, in 2009, the Ugandan government considered a bill that would have imposed the death penalty for a range of homosexual acts, but— based on international criticism—scaled back the new law while still imposing lengthy prison sentences. Faith Karimi and Nick Thompson, Uganda’s President Museveni signs controversial anti-gay bill into law, CNN, Feb. 25, 2014, http://www.cnn.com/2014/02/24/ world/africa/uganda-anti-gay-bill/ (last visited Sept. 12, 2017). 30   C onst. Rep. of Uganda (1995). See also Ronald Naluwairo, Military Justice, Human Rights and the Law: An Appraisal of the Right to a Fair Trial in Uganda’s Military Justice System (Nov. 2011) (unpublished Phd. thesis, University of London). This thesis is an excellent study of Uganda’s military justice system, tracing it from its historical roots to the present day, and providing a useful analysis of important issues that impact the defendant’s right to a fair trial. 31  The government has, for example, claimed that it has court-martialed soldiers in the documented rape cases brought by civilians over the course of the Uganda-LRA conflict. Patrick Wegner, “A Genocide in Northern Uganda—The ‘Protected Camps’ Policy of 1999 to 2006,” Justice in Conflict, http://justiceinconflict.org/ (last visited Nov. 2, 2017). But, even if one assumes that the UPDF may be able to conduct fair trials for soldiers accused of war crimes and other serious violations of international humanitarian law, this still leaves open the question whether it would be “willing” to do so in a fair and public trial. 32  The UPDF Act, 1992. One issue that has been periodically raised involves the surprising argument that the Uganda Constitution does not even apply to the UPDF. The Constitutional Court did hold that courts martial were part of Uganda’s system of justice

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who accompany the forces or are commanded by members of the UPDF. It is noteworthy that certain civilians are also subject to military law under Article 15 (i): “every person found in unlawful possession of arms, ammunition, equipment and other prescribed classified stores ordinarily being the monopoly of the army.”33 This article has been widely applied to militant/rebel groups throughout the country and has been the subject of much criticism.34 The 1992 UPDF Act further created a system of military courts, to include field court-martial,35 division court-martial,36 and general court-martial.37 and were subordinate to Article 128 (Independence of the judiciary) of the Uganda Constitution. Id. 33  The UPDF Act, 1992, art. 15(i). Naluwairo explains that this expansion of military jurisdiction to civilians actually originated in 1973 by presidential decree from President Idi Amin, a dubious genesis for the modern UPDF Act. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 119. Indeed, many of Amin’s judges were illiterate and were known for administering a very rough form of justice on a presumption of guilt. Some judges even acquired nicknames like “Captain Kill Me Quick” and “Captain No Parking.” Ronald Naluwairo, The Trial of Civilians in Uganda’s Military Courts: Interrogating the Reasons and Constitutionality, 19 E. Afr. J. of Peace & Hum. Rhts. 383, 385 (2013) (examining some of the arguments that have been proffered as justification for military jurisdiction over civilians). 34  Human Rights Watch, Righting Military Injustice Addressing Uganda’s Unlawful Prosecutions of Civilians in Military Courts 1 (July 2011) (explaining that military courts have prosecuted over 1,000 civilians during the period 2002–11 for criminal offenses such as murder and armed robbery); and “Get the Gun”: Human Rights Violations by Uganda’s National Army in Law Enforcement Operations in Karamoja Region 20–21 (Sept. 2007). See also Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 176–183 (providing a detailed analysis under international human rights law to include pointing out that allowing military courts to exercise jurisdiction over civilians raises issues regarding differential treatment under two different justice systems). 35  The UPDF Act, 1992, art. 78. This provision has been the subject of much criticism. In 2002, two Ugandan soldiers were tried by field court martial in Karamajo for a murder and robbery that occurred only three days before, and, after a trial of less than three hours and without an opportunity for any appeal, the soldiers were executed by firing squad. This has led at least one commentator to question the due process protections (e.g., right to counsel, quality of the pre-trial investigation and appeal rights) available to UPDF soldiers. Indeed, there is even a strong implication that senior officers had decided upon execution even before the trial began. According to a lecturer in law at Makerere University (Kampala): “Controversy was heightened by the bizarre announcement that the accessed would be executed before the court had begun hearing the case.” Henry Onoria, Soldiering and Constitutional Rights in Uganda: The Kotido Military Executions, 9 E. Afr. J. of Peace & Hum. Rhts. 87, 101 (2003). In addition, there are also important questions about the jurisdiction of a field court martial, in that field commanders may have unfettered discretion in whether to convene such a tribunal with the power to impose capital punishment, but leaving a defendant with very limited rights. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 163–65. 36   U PDF Act, 1992, art. 80. 37  Id. art. 81.

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Of note, the statute also created a Court-Martial Appeal Court, but it only has jurisdiction from the decisions of a general court-martial; the statute did not provide for any other appellate rights or procedures.38 The statute makes no mention of rules of procedure or evidence, the rights of an accused to retain counsel, court-martial transcripts/reports, or issues of command influence.39 Needless to say, the 1992 Act left open many questions about the due process rights of service members, as well as of citizens accused of weapons offenses. The 2005 UPDF Act is a substantial improvement on its predecessor, even though from a human rights perspective it contains some important gaps, as well as vague language subject to abuse.40 In addition, there are important issues concerning the competence, independence and impartiality of the proceedings, raising concerns whether the accused will receive a fair hearing and have appellate rights.41 In one improvement over the 1992 Act, the 38  I d. art. 84–87. The Court Martial Court of Appeal was originally constituted in the 1964 Armed Forces Act, but later became non-functional during the Idi Amin regime and thereafter. The court was abolished with the 1986 NRA Codes of Code (Legal Notice No. 1), but was reconstituted with the UPDF Act, 1992. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 116–122. The UPDF Act, 2005 provides that three of the five members of that court, to include the Chairperson, shall be qualified advocates while the other two must be senior officers in the UPDF, but the statute makes no reference to their manner of appointment or tenure in office. There is no provision for the reporting of its decisions or the appeals process from that court. This raises substantial questions about the independence, transparency and impartiality of the court. Id. art. 199. 39  The Court Martial Appeal Court is managed by its own regulations. As Naluwairo points out, this means that many aspects of court’s processes and procedures can be changed at any time by the Defence Minister without parliamentary involvement. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 166–68. 40   U PDF Act, 2005. 41  Ronald Naluwairo, a faculty member at the Makerere University School of Law in Kampala, has authored an important corpus on the Ugandan military justice system. See generally Ronald Naluwairo, The Trials and Tribulations of Rtd. Col. Dr. Kizza Besigye and 22 Others, Human Rights & Peace Centre (Makerere University), Working Paper, 2006 (examining the general court martial provisions in the 2005 UPDF Act and the trial of Col. Besigye); Ronald Naluwairo, Uganda’s Military Courts and the Right to a Competent Tribunal: Some Reflections, 5 Malawi L. J. 161 (2011) (arguing that there are no safeguards to ensure that Uganda’s military courts are competent and that appointed judicial officers have integrity); Ronald Naluwairo, Military Courts and Human Rights: A Critical Analysis of the Compliance of Uganda’s Military Justice with the Right to an Independent and Impartial Tribunal, 12 Afr. Hum. Rts. L. J. 448 (2012) (arguing that Uganda’s military courts lack independence and that appointed judge advocate officers lack tenure and financial security); and Ronald Naluwairo, Uganda’s Civil Courts and the Administration of Military Justice: An Appraisal of their Jurisprudence on Selected Issues, 17 Law, Dem. & Dev. 111 (2013) (provides an overview of Ugandan military law and analyzes key cases involving senior army officers).

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military is enjoined to observe the rules of evidence and procedure applicable in civilian courts. Article 41 provides that accused soldiers deployed abroad will be repatriated to Uganda for trial or, if the soldier must be tried outside Uganda, that Ugandan law will apply.42 There are, however, articles that risk a confusion of military and civilian law enforcement roles; this leads to questions whether the Uganda Police or the UPDF should be responding to a situation, the appropriate use of force, and whether certain offenses should be prosecuted through civilian or military courts. For example, Articles 42–45 addresses UPDF aid to civil power in response to riots or civil disturbances, and gives “officers and militants called out for service” … “all the powers and duties of a police officer.”43 Article 119 (i), creating military jurisdiction over civilians charged with arms violations, is essentially the same wording as in the 1995 UPDF Act.44 Articles 120–184 proscribe a range of offenses: many offenses use vague/ ambiguous language and/or carry harsh sentences, particularly when one considers the lack of publicly available court-martial records and reports that could be used to guide future lawyers and researchers. In one example, under Article 122, a person “who fails to protect war materials [e.g., arms and ammunition], misuses or sells them, commits an offense and is on conviction, liable to suffer death.”45 In a second example, under Article 123, a person who (a) is charged with the responsibility of briefing for an operation and fails to do so; (b) fails to obey instructions as explained or laid down regarding a briefing for an operation; or (c) fails to prepare for an operation, commits an offense and is, on conviction, where there is failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.46 42   U PDF Act, 2005, art. 41. 43  Id. art. 43 (1). The UPDF routinely deploys units to Karamojong communities in support of civil authorities, raising a question regarding the applicability of the Geneva Conventions (as for a non-international armed conflict) or national law (as for domestic disturbances). This creates a critical issue as it applies to arms offenses under art. 119(i) of the UPDF Act. 44  Id. art. 119(i). This article, like its predecessor in the 1995 Act, has been the subject of continuing criticism. Umaru Kashaka, MP Calls for Reforms in Military Court Martial, New Vision (Kampala), July 15, 2014, http://www.newvision.co.ug/news/657544-mps -calls-for-reforms-in-military-court-martial.html. 45   U PDF Act, 2005, art. 122. 46  Id. art. 123.

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Clearly, both Articles 122 and 123 could result in heavy punishment where the accused acted negligently or was not the proximate cause of the operational failure. Articles 191–249 describe the operation of the military justice system, to include the duties and functions of courts martial, presence of military advocates at various levels, and appellate rights and limitations.47 In general terms, this is a substantial improvement on earlier law, although an accused person still lacks the right to a dedicated defense “advocate.”48 Naluwairo argues that Section 201(2), which prohibits a court member from “disassociating” himself from a decision, effectively limits the use of dissents, thus impairing the independence and impartiality of judges.49 Finally, the manner in which courts martial are constituted, especially with regard to appointment of serving military officers as judges, the limited use of fixed terms (one year for general court martial members) and limited requirements for legal expertise,50 raises concerns about the competence, independence and impartiality of military judges.51 Not only is there a risk of bias on the part of the judges hearing a case, there is also a substantial risk of command influence and having cases/ sentencing decided even before trial. Uganda has also enacted a 2002 Anti-Terrorism Act52 and a 2012 Prevention and Prohibition of Torture Act.53 Both statutes provide considerably enhanced 47  The UPDF Act, 2005 also recognizes two non-court martial authorities: Under Article 195, a summary trial authority can hear and decide non-capital cases and, under Article 205, a unit disciplinary committee can impose a range of punishments. Both authorities provide limited rights to defendants; Article 205 bars the presence of advocates, but allows the accused the right to demand trial by court martial. Under Article 191 (3)(a), the summary trial authority can impose a punishment of up to six months’ detention. Under Article 195(4), the unit disciplinary committee can impose any punishment allowed by law (without definition). In any case, these two “non-court martial authorities” lack many fair trial guarantees and are subject to abuse. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 154–62. 48  It is noteworthy that the field court martial still retains the power to impose the death sentence and the accused lacks any statutory appellate rights from that forum. UPDF Act, 2005, art. 227. See also Naluwairo, Uganda’s Civil Courts and the Administration of Military Justice, supra n.41 at 127–28. 49  Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 162–163. 50  There is, for example, no requirement for the judges at the division and general court martial to be trained lawyers, only that a trained judge advocate advise each court during proceedings and deliberations. UPDF Act, 2005, art. 194, 197, 198 and 202. 51  Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 185–200. 52   T he Anti-Terrorism Act, 2002. 53   T he Prevention and Prohibition of Torture Act, 2012. This statute effectively domesticates Uganda’s international law obligation under The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

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governmental authorities to investigate and prosecute a broad range of offenses. The 2002 Anti-Terrorism Act proscribes a range of terrorist acts, labels four groups as terrorist organizations specifically including the LRA,54 provides for enhanced investigatory authorities for the government, extra-territorial application (long arm jurisdiction), and makes certain offenses triable and bailable only by the High Court.55 Part III defines the offense of terrorism, in part: (2)  A person commits an act of terrorism who, for purposes of influencing the Government or intimidating the public or a section of the public and for a political, religious, social or economic aim, indiscriminately without due regard to the safety of others or property, carries out all or any of the following acts— (a) …; (b) direct involvement or complicity in the murder, kidnapping, maiming or attack, whether actual, attempted or threatened, on a person or groups of persons, in public or private institutions; (c) direct involvement or complicity in the murder, kidnapping, abducting, maiming or attack, whether actual, attempted or threatened on the person, official premises, private accommo­ dation, or means of transport or diplomatic agents or other internationally protected persons; (d–j)…. This broad statute clearly drives at many terrorist practices, to include murder, kidnapping, maiming and attacking.56 or Punishment, Nov. 10, 1984. Uganda’s accession to the treaty was effective on Nov. 3, 1986, UN Treaty Collection: https://treaties.un.org/Pages/ViewDetails .aspx?src=treaty&mtdsg_no=iv-9&chapter=4&lang=en (last visited Nov. 2, 2017). 54  The Lord’s Resistance Army, the Lord’s Resistance Movement, Allied Democratic Forces, and al Qaeda. The Anti-Terrorism Act, 2002, Second Schedule. 55   T he Anti-Terrorism Act, 2002. 56  This statute became effective on June 7, 2002, and cannot be applied retroactively to earlier acts committed by the LRA or other groups under the Uganda Constitution, art. 28 (prohibition against retroactive criminal legislation). Moreover, this statute cannot be used to prosecute civilians in a military court martial because confers exclusive jurisdiction over terrorism offenses on the High Court. Naluwairo, Uganda’s Civil Courts and the Administration of Military Justice, supra n.41, at 125 (citing Uganda Law Society v. Attorney General of the Republic of Uganda (Constitutional Petition No. 18) (2006) UGCC 10).

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The 2012 Torture statute should be an effective tool, against both eliminating abusive police/military practices and terrorist organizations.57 The statute sweeps broadly, including persons acting in an official capacity, as well as rebel/terror groups, which practice torture: (1) In this Act, torture means any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as— (a) obtaining information or a confession from the person or any other person; (b) punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or (c) intimidating or coercing the person or any other person to do, or to refrain from doing, any act.58 On one hand, there have been frequent reports by human rights groups of police and military personnel using torture and coerced confessions, par­ ticularly within the context of treason charges, over the past decades.59 The effective and even-handed implementation of this statute should go a long way to overcoming public concerns about heavy-handed police practices. On the other hand, the statute could also be a very effective tool against groups such as the LRA or the ADF. In fact, many of the LRA practices could be construed as 57   T he Prevention and Prohibition of Torture Act, 2012. 58  Id. (emphasis added). 59   Human Rights Watch, Hostile to Democracy, supra n.18, at 130–142. See also Human Rights Watch, Open Secret: Illegal Detention and Torture by the Joint Anti-Terrorism Task Force in Uganda (2009), 72–74 (arguing that the Anti-Terrorism Act is overbroad and could be used against opponents of the government even when there has been no criminal activity). See, e.g., Uganda v. Okot & 12 Ors. (2012) UGHC 97 (the High Court dismissed charges of treason and misprision of treason against 13 persons who had been accused of membership in a rebel organization known as the Popular Patriotic Front; the court found that the prosecution had offered unreliable and inconsistent evidence, necessitating acquittals based upon a failure to establish a prima facie case). This kind of result raises questions about the quality of the underlying police investigation, as well as the DPP’s decision to prosecute. It is also noteworthy that misprision of treason, that is a person “knowing that any person intends to commit treason and does not give information thereof with all reasonable dispatch” to the authorities, can be sentenced to life imprisonment. Id. citing the Uganda Penal Code, art. 25.

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torture against abducted persons (who are often subjected to beatings, forced to maim/kill others and raped) and against the public at-large (e.g., causing the former “night commuter”60 problem in the Acholi districts).61 The 2000 Amnesty Act was “predicated on a general desire to bring an end to the acute and often vicious violence that had characterized Uganda as a polity since the 1960’s.”62 The statute was designed to encompass numerous different rebel groups that have plagued Uganda since January 1986, to include the LRA, the ADF, the West Nile Bank Front, and others. While the Act was later amended in 2006 and Part II (the amnesty provisions) was allowed to lapse briefly in 2012, the Act was in full force through May 2015.63 This raises the issue of whether Kony and other senior LRA officers could claim the protections of this Act under the principle of lex mitior (i.e., the milder law) as a defense against prosecution for certain offenses that he may have committed while the Act was in force. There are mixed views in Uganda regarding the propriety of the Amnesty Act, especially in terms of whether it furthers the national interests in bringing about peace, justice and national reconciliation.64 This situation is complicated by the fact there is no clear distinction between combatants and non-combatants with regard to LRA membership. LRA members range on a “gray” scale from the recently abducted children who have been forced to participate in acts, to adult members who—over a long period of time—have

60  The “night commuter” problem involving children who, fearing abduction by the LRA, would leave their villages every day to seek refuge for the night in the nearest town. Keith Morrison & Tim Sandler, Children of war in Uganda, Dateline NBC, Sept. 26, 2006, http://www.nbcnews.com/id/9006024/ns/dateline_nbc/t/children-war-uganda/ (last visited Sept. 12, 2017). 61   Sonja C. Grover, The Torture of Children During Armed Conflicts: The ICC’s Failure to Prosecute and the Negation of Children’s Human Dignity (2014), 47–70. See also Statement of Jacob Acaye, U.S. Policy to Counter the Lord’s Resistance Army: Hearing before the Subcommittee on African Affairs (statement of a former LRA abductee and child combatant). 62  Report of the Committee, supra n.28, at 4. 63  Kasandre Sarah Kihika & Meritxell Regue, Pursuing Accountability for Serious Crimes in Uganda’s Courts: Reflections on the Thomas Kwoyelo Case, ICTJ Briefing (Jan. 2015), 7 (explaining the parliamentary irregularities in the lapse/reinstatement of the law). 64  Report of the Committee, supra n.28, at 12–18. See also Abdul Tejan-Cole, Painful Peace— Amnesty under the Lome Peace Agreement, 3 Law, Dem. and Dev. 239 (1999) (the author notes the criticisms raised by the international community against the blanket amnesty that was offered to senior rebel leaders in the 1999 Lome Peace Agreement that would have ended the civil war in Sierra Leone and argues that true peace and reconciliation cannot be achieved without addressing the rights and interests of the victims).

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become intimidated and even willing participants.65 Culpability is relative. On one hand, many people in northern Uganda support the Amnesty Act because they want to see an end to the drawn-out conflict; many of these people want the missing children to come home, even if it means there is some level of impunity.66 In fact, the Act encourages combatants to return home and reintegrate into society, although there is evidence that the resettlement and reintegration programs could/should be better funded.67 On the other hand, there are many people who believe that Kony and his followers have left such a wake of death and destruction that he and his followers should be held accountable; the critics believe that the Act promotes impunity and undermines human rights.68 One interesting amnesty case involves LRA Major General Caesar Acellam, who had been initially abducted by the LRA in 1988 and eventually captured by the UPDF in May 2012 in the Central African Republic, but was later granted amnesty.69 This case illustrates the tension between encouraging amnesty, one of the few benefits that can be had by rebels in a non-international armed 65  Hope Among, Challenges in Prosecuting Former Child Soldiers in Uganda’s International Crimes Division, 18 E. Afr. J. of Peace & Hum. Rts. 336 (2012). This article reviews many of the important considerations that are involved in making a decision regarding the propriety of pursuing a criminal prosecution or a grant of amnesty. The author notes that many former combatants do not even know their own age, much less have a birth certificate, making it difficult to determine a person’s age at the time a crime was committed; that the brainwashing that occurred had impacted the person’s ability understand the nature and extent (unlawfulness) of their actions; that the children had, in most cases, been abducted and had been forced to participate in crimes in order to survive; and that some children had been supplied with alcohol or drugs to fortify their resolve. 66  Prudence Acirokop, A Truth Commission for Uganda? Opportunities and Challenges, 12 Afr. Hum. Rts. L. J. 417, 431 (2012). Acirokop notes that “[a]mnesty was always perceived as a vital tool in conflict resolution and in longer-term reconciliation and peace within the specific context of Northern Uganda as it resonates specific cultural understanding of justice.” Id. 67  Report of the Committee, supra n.28, at 39. 68   U N Office of the High Commissioner for Human Rights, UN Position on Uganda’s Amnesty Act, Submission to the Hon. Minister of Internal Affairs (May 2012), 4–10. This document argues that blanket amnesty is inconsistent with Uganda’s obligation to prosecute international crimes, such as war crimes, crimes against humanity, and gross violations of human rights. This document also argues that the “Amnesty Act similarly contradicts Uganda’s obligations arising from the Rome Statute.” Id. at 12. 69  Samuel Okiror, Forgive and forget? Amnesty dilemma haunts Uganda, IRIN News, June 12, 2015, http://www.irinnews.org/fr/report/101625/forgive-and-forget-amnesty -dilemma-haunts-uganda. See also Mark Kersten, A Rebel’s Escape—An LRA Com­ mander Tells His Story, Justice in Conflict, July 31, 2013, http://justiceinconflict .org/2013/07/31/a-rebels-escape-an-lra-commander-tells-his-story/.

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conflict, as a means of ending a conflict and the need for accountability. Many people might ask how Uganda can grant amnesty to such a senior officer, at one point the fourth most senior officer in a notorious terrorist group like the LRA, one who planned and participated in so many war crimes over a 24-year period. Many people might also ask how far Uganda should go in the interests of reconciliation. This no doubt leaves the DPP with a difficult decision on whether to grant amnesty: How old was this person when abducted? What were the circumstances of his/her captivity? What acts did the person willingly commit? Unfortunately, the credible, admissible evidence may be lacking in many cases and the interests of justice may require the grant of amnesty. In terms of international law, Uganda is party to two treaties that recognize and encourage amnesties even if neither instrument is directly applicable to the Uganda/LRA conflict. Under Article 6(5) to the 1977 Additional Protocol II, “[at] the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”70 Under the Inter­ national Covenant on Civil and Political Rights, states may grant amnesty for all cases where capital punishment may be imposed.71 In addition, the Uganda Parliament has also recognized that a ban on amnesties is not part of customary international law—noting the inconsistent state practice and conflicting legal opinions.72 Uganda has enacted a 2010 ICC statute73 that domesticates the Rome Statute. The ICC Act addresses issues regarding persons accused of inter­ national crimes and cooperation with the ICC itself. Its stated purpose is: “An Act to give effect to the Rome Statute of the International Criminal Court; to provide for offenses under the law of Uganda corresponding to offenses within the jurisdiction of that court; and for connected matters.”74 In part, 70   P rotocol II Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II). 71   T he International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entered into force Mar. 23, 1976. 72  Report of the Committee, supra n.28, at 28–29. 73   T he International Criminal Court Act, 2010. See generally Sarah Nouwen, The ICC’s Intervention in Uganda: Which Rule of Law Does It Promote?, (University of Cambridge Legal Studies Research Paper, No. 22/2012, Aug. 2012) (provides a useful history of the domestication of the Rome Statute into Ugandan law, to include the pressures on the Executive and Parliament). 74   I CC Act 2010, Preamble.

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sections of this Act apply to any requests by the ICC, any enforcement of the ICC, or any investigation or sitting of the ICC, regardless of whether the action relates to a matter that “was committed before the coming into force of this Act.”75 This statute provides the International Crimes Division (ICD) of the High Court with the jurisdiction to hear cases arising from this statute.76 In addition, the ICC Act incorporates new of modes of liability, such as the doctrine of command responsibility, under Uganda law.77 This statute, unlike the Uganda Penal Code, excludes the application of the death penalty.78 There have, however, been questions about the adequacy of the ICC Act, to include witness and victim protection, as well as when the DPP will apply the 2000 Amnesty Act.79 There have been long-standing and substantial human rights complaints levied against the Uganda law enforcement agencies.80 Indeed, both the Uganda Police and the Joint Anti-Terrorism Task Force (JATT) have been criticized for a wide range of human rights abuses to include unlawful killings, torture, and

75  Id. Part I, art. 1. 76  The ICD, formerly known as the War Crimes Division, sits as a bench of three judges and was established by the Uganda High Court in July 2008. The ICD has subject matter jurisdiction over “any offence relating to genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime as may be provided for under the Penal Code Act, Cap 120, The Geneva Conventions Act, Cap 363, The International Criminal Court Act, No. 11 of 2010 or under any other penal enactment.” The Republic of Uganda (The Judiciary), International Crimes Division, Website: http://www.judicature.go.ug/data/smenu/18/International _Crimes_Division.html (last visited June 14, 2015). As of September 2011, the case of former LRA officer Thomas Kwoyelo was the first one it had heard. Kristy McNamara, Seeking Justice in Ugandan Courts: Amnesty and the Case of Thomas Kwoyelo, 12 Wash. U. Global Studies L. R. 653, 653 (2013). Apparently, the ICD has had only a limited number of cases before it, to include the July 2010 terrorist bombing of the Ethiopian Village Restaurant in Kampala. Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18. 77  See The Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, art. 28 (a)(i) (incorporating a knew or should have known standard); International Criminal Court Act 2010, art. 19 (a)(i). In fact, the Rome Statute incorporates the Yamashita standard. See also Michael L. Smidt, Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations, 164 Mil. L. Rev. 155 (2000). 78  Compare The Rome Statute, supra n.77, art. 77(1), with the ICC Act, 2010, Part II, art. 7–9 (imposing terms of “life or a lesser term”). 79  McNamara, supra n.76, at 659. 80  Brooke J. Oppenheimer, From Arrest to Release: The Inside Story of Uganda’s Penal System, 16 Ind. Int’l & Comp. L. Rev. 117 (2005) (describing the corruption, incompetence and inefficiency in the Uganda Police, the court system, and the prison service). See also Human Rights Watch, State of Pain: Torture in Uganda (16:4) (Mar. 2004).

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abuses against suspects.81 The JATT is a joint, inter-agency organization that was formed in 1999 using personnel from the UPDF, the Uganda Police, and the intelligence organizations82 to combat the Allied Democratic Forces (ADF).83 The JATT lacks a statutory mandate and has been under the operational control of the Chieftaincy of Military Intelligence (CMI).84 Typically, JATT personnel operate in civilian clothes and drive unmarked cars and each officer uses the statutory authorities he has from his home organization/command. The JATT has been accused of the arbitrary arrest of suspected terrorists; holding suspects in lengthy pre-trial detention, often waiting months if ever to bring a suspect before a magistrate;85 using “ungazetted” detention facilities (i.e., safe houses);86 using torture and other abusive interrogation practices; and even extrajudicial killings.87 While the CMI, Brigadier James Mugira, has promised to investigate all claims of human rights abuses made against the JATT,88 it is unclear whether and to what extent the previously identified problems have been corrected. In fact, Human Rights Watch found no evidence that police and military personnel had been held accountable for any prior

81   U.S. Department of State, Uganda 2013 Human Rights Report, http://www.state.gov/j/drl/ rls/hrrpt/humanrightsreport/#wrapper (last visited June 15, 2015). See also Human Rights Watch, Open Secret, supra n.59. 82  The Internal Security Organisation (ISO) is the government’s counter-intelligence service and the External Security Organisation (ESO) is the government’s foreign intelligence service; both organizations were established under the Security Organisation Act 1987. For an overview of Uganda’s intelligence community and some of the structural, resourcing and security problems it has been facing, see Haggai Matsiko, Intelligence in crisis, Independent (Kampala), Nov. 8, 2013, http://www.independent.co.ug/cover -story/8424-intelligence-in-crisis#sthash.DID3hkBc.dpuf (last visited Sept. 12, 2017). 83  The JATT’s mission has since expanded to include treason cases and other terrorist threats to Uganda. Id. at 25–26. 84  According to Human Rights Watch, the government originally intended that the JATT would be under the command of the Inspector General of Police, but—when it appeared that the police could not manage the organization—it was transferred to the CMI. Human Rights Watch, Open Secret, supra n.59, at 20. 85   C onst. Rep. of Uganda (1995), art. 123 (4) requires that an arrested person be brought to court within 48 hours from arrest. Still, while the same article discusses persons “restricted or detained,” it imposes no similar requirement for judicial review. This creates an opening for abuse. 86  The 1995 Uganda Constitution proscribes the holding of prisoners in “ungazetted” places, namely unacknowledged locations that are not published in the official gazette. Const. of Uganda, art. 23 (2). While police stations are typically gazetted, “legal” facilities, other places such as military barracks, “safe houses,” and offices are not. 87  See generally Human Rights Watch, Open Secret, supra n.59. 88  Id. at 58–60.

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abuses.89 In any case, there are substantial issues regarding the impartiality and integrity of law enforcement investigations, to include confused and overlapping police and military law enforcement authorities. Some people believe that the Uganda Police, followed by the judiciary, is the most corrupt institution in the country.90 Indeed, abusive police practices, particularly if biased towards the government, as well excessive delays and costs in court proceedings, can lead to a situation conducive to corruption with people trying to buy their way out of a bad situation.91 While this report, prepared jointly by the Inspectorate of Government and Makerere University, indicates that the removal of corrupt officials has been a priority for at least some senior officials and some progress has been made, the level corruption in 2013 (Uganda Police, 49 percent; judiciary, 24.8 percent) indicates that this is a deep-seated problem that requires a long-term effort.92 According to Transparency International: The Ugandan government has acknowledged that corruption is one of the main challenges facing the country. But recent developments have raised questions on the government’s political will to address it. Several reforms, laws and new institutions to fight corruption have been established. However, in spite of recent investigations and corruption trials, an effective enforcement of the laws in place is still lacking.93 Clearly, the government must place renewed emphasis on this critical short-coming. Uganda does have two well-written statutes that can be used to combat corruption in government. Under the first statute, the Leadership Code Act, 2002, certain identified senior officials are under an obligation to submit a bi-annual declaration of income, assets and liabilities to the Inspector General 89  Id. at 5. 90  Sarah Namulondo, Uganda Police Named Most Corrupt Institution, INDEPENDENT (Kampala), Dec. 11, 2012, http://www.independent.co.ug/news/news/7025-uganda-police -named-most-corrupt-institution#sthash.x8C0aQQD.dpuf (last visited Sept. 12, 2017). 91  On its Corruption Perceptions Index for 2016, Transparency International ranks Uganda as 151st of the 176 countries in the world. Transparency International, https://www .transparency.org/news/feature/corruption_perceptions_index_2016#table (last visited Sept. 12, 2017). 92  Id. 93  Transparency International, Uganda: Overview of Corruption and Anti-Corruption, https://www.transparency.org/whatwedo/answer/uganda_overview_of_corruption_and_ anti_corruption (last visited Sept. 12, 2017).

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of Government (IGG),94 which is considered public information, releasable to private persons upon request. In fact, senior officials are obligated to report not only his or her own income assets and liabilities, but also that of his or her spouse, child and other dependents.95 A senior official can be in breach of this code by failure to report income, assets, and liabilities; by failure to submit his or her declaration in a timely manner; or by being “in possession of assets and income disproportionate to the known sources of income which he or she cannot satisfactorily account for….”96 The IGG has broad powers to investigate cases involving senior officials, to include powers to hear and receive evidence, to compel the production of documents, to protect the identity of witnesses, to render findings and decisions, to order the forfeiture of property, and to direct the payment of compensation to the government or other public bodies. In other words, this statute can be an effective tool to investigate and prosecute cases involving senior government officials who may be involved in facilitating and/or supporting the criminal activities of terrorist groups. Under the second statute, the Anti-Corruption Act, 2009, the government can investigate and prosecute a wide range of cases involving corruption, bribery of public officials, conflicts of interest, sectarianism,97 nepotism, threats of injury to persons employed in public service,98 and certain fraudulent acts. There are several noteworthy aspects of this statute. First, the statute proscribes a broad range of related—public as well as private sector—financial and influence 94  The Inspector General of Government is created by Const. of Uganda, art. 223. Under art. 225(1), the IGG functions:    “a. to promote and foster strict adherence to the rule of law and principles of natural justice in administration; b. to eliminate and foster the elimination of corruption, abuse of authority and of public office; c. to promote fair, efficient and good governance in public offices; d. subject to the provisions of this Constitution, to supervise the enforcement of the Leadership Code of Conduct; e. to investigate any act, omission, advice, decision or recommendation by a public officer or any other authority to which this article applies, taken, made, given or done in exercise of administrative functions; and f. to stimulate public awareness about the values of constitutionalism in general and the activities of its office, in particular, through any media and other means it considers appropriate.” 95   L eadership Code Act, 2002, art. 4. 96  Id. at art. 4(7). 97   T he Anti-Corruption Act, 2002, art. 12 defines sectarianism as: “A person who being the holder of an office does any act in connection with the office for the purpose of doing a favour or offering undue advantage to any person on the basis of that person’s religion or sect, ethnic group or place of origin commits an offense.” A violation of this broadly defined section is punishable by ten years’ imprisonment or a fine or both. Id. art. 26. 98  Article 18 proscribes threats of injury made against public officials, as well as persons believed to be employed in public service, “for the purpose of inducing that person … to do any act or to forbear or delay to do any act connected with the exercise of the public functions of that person….”

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peddling activities that can facilitate terrorism offenses. Second, the IGG, the DPP, and other authorized senior officials have the authority to investigate persons who maintain a standard of living above that which is commensurate with current or past known sources of income; persons found in possession of illicitly acquired property can be punished by ten years’ imprisonment or a fine or both. Third, violations of this statute can be punished by imprisonment, fines, forfeiture of any gratification received in violation of the statute, and payment of compensation. Finally, both the IGG and the DPP have special powers of prosecution, to include the power to investigate bank accounts, to place restrictions on the use of financial assets (e.g., restraining and confiscation orders), to order the inspection of documents, and to order named persons to provide sworn statements. Again, this statute should be an effective tool for use in investigating and prosecuting persons involved in facilitating and/or supporting the criminal activities of terrorist groups. Both statutes were challenged in a 2010 civil case involving the former Principal Accountant in the Public Service in the Ministry of Health.99 Initially, the DPP commenced an investigation asking him to explain the source of his assets listed in his Declarations of Wealth; the IGG subsequently determined that he had misstated the value of certain assets and had withheld the disclosure of other assets, and ordered his removal from public office. The former accountant then appealed the IGG’s report, claiming that the IGG had failed to provide him with a fair hearing. But, while the civil appeal was pending, the former accountant was arrested and charged with two criminal violations of Illicit Enrichment under the Anti-Corruption Act. The Constitutional Court, arising from a reference from a Magistrate Court, addressed several interesting points. First, even though the illicit assets may have been acquired before the passage of the statute, the statute did not violate the non-retroactivity criminal provisions in the Uganda Constitution because the statute focused on the present possessions of the accused. Moreover, the court explained that while the Constitution “prevents charges from being brought retroactively, it in no way prevents evidence collected before a Statute was passed from being used in a later suit.”100 Second, the court explained that criminal and civil proceedings are distinct and either could go forward while the other one was pending without giving rise to double jeopardy concerns.

99  Nestor Machumbi Gasasira v. Uganda (Constitutional Court of Uganda), Constitutional Reference No. 17 of 2011. 100  Id. at 11.

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Uganda has also passed a comprehensive money laundering statute.101 This statute outlines preventive measures that must be followed by “accountable persons” (e.g., advocates, trust companies, casinos, real estate agents, dealers in gems and precious metals, and financial institutions), establishes record keeping and reporting requirements, creates a Financial Intelligence Authority, provides for the seizure, freezing and forfeiture of assets, and defines various money laundering offenses and penalties. The FIA seeks to: (a)  enhance the identification of the proceeds of crime and the combating of money laundering; (b) ensure compliance with this Act; (c)  enhance public awareness and understanding of matters related to money laundering. (d) make information collected by it available to competent authorities and to facilitate the administration and enforce­ ment of the laws of Uganda; and (e) exchange information with similar bodies whose countries have treaties, agreements or arrangements with the Govern­ ment of Uganda regarding money laundering and similar offences.102 In general terms, Uganda has made important progress in reforming and enforcing its money laundering laws, in part to heed off international sanctions from the Financial Action Task Force (FATF) that could have had negative economic consequences.103 In any case, the recent statutory amendments should bring Uganda into compliance with its obligations under UN Security Council Resolutions 1267 and 1373 to criminalize terrorist financing and freeze terrorist assets.104 101  Republic of Uganda, The Anti-Money Laundering Act, 2013. 102  Id. art. 19. 103   Mark Keith Muhumuza, Uganda Strengthens Anti-Money Laundering Law to Avoid Blacklist, Daily Monitor (Kampala), Mar. 17, 2017, http://www.monitor.co.ug/Business/ Uganda-strengthens-anti-money-laundering-law-to-avoid-blacklist/688322-3852358 -kadegu/index.html (last visited Nov. 7, 2017). See also Bernard Busuulwa, Uganda: How Terror Groups Keep Cash Flows Under the Radar, East African, Dec. 12, 2017, http:// allafrica.com/stories/201712130030.html (last visited Jan. 30, 2018) (recounting recent cases of suspicious activity involving mobile money systems that had been reported to the Ugandan FIA). 104  See The Anti-Money Laundering (Amendment) Act, 2017 (e.g., providing a new definition for “politically exposed persons,” establishing due diligence requirements,

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Uganda also has several other statutes and initiatives that provide useful, supplementary tools in the counterterrorism fight. The 1970 Immigration Act regulates the entry of aliens into the country, to include prohibitions on the entry of an “undesirable immigrant”105 based upon information from foreign countries, restrictions on work by non-citizens, and providing for the deportation of persons. The 2009 Trafficking in Persons Act criminalizes a range of offenses, punishable by lengthy prison sentences and even the death penalty.106 The Act imposes a duty upon persons who know “that any person has committed or intends to commit an offence under this part of the Act,” to report such offenses,107 allows for extra-territorial jurisdiction, and provides for considerable assistance to victims to include repatriation and restitution. The 2015 Registration of Persons Act creates a national identification register and requires all persons, citizens and aliens alike, obtain an identification card.108 The 2015 statute proscribes destroying or mutilating of card, depriving another of his or her card, using the card of another person, altering or modifying the information on a card, or permitting another person to use one’s card. Recently, in August 2016 Uganda hosted a meeting of the Inter Government Authority on Development (IGAD) and entered into an agreement with Kenya, South Sudan and Tanzania to develop a regional strategy focused on preventing and countering violent extremism.109 requiring accountable persons to assess their risk for money laundering and terrorist financing, enhancing its record keeping and reporting requirements, requiring protection for persons who report suspicious activities, and regulating cross border movement of currency and negotiable instruments). See also ESAAMLG, Anti-Money Laundering and Counter-Terrorist Financing Measures: Uganda, Mutual Evaluation Report, Apr. 2016 (identifying specific risks and shortcomings in Ugandan law with respect to money laundering and terrorist financing). 105   T he Immigration Act, 1970, art. 10(1). 106   T he Prevention of Trafficking in Persons Act, 2009. See, for example, Uganda v. Umotoni Annet, High Court of Uganda (International Crimes Division), HCT-00-ICD-CR-SCNo. 003 of 2014 (involving a Rwandan national who brought two girls to Uganda with false promises of work; the defendant was convicted of aggravated child trafficking and trafficking in persons, and sentenced to concurrent prison sentences of eight and five years). 107   T he Prevention of Trafficking in Persons Act, 2009, art. 10. 108   T he Registration of Persons Act, 2015, art. 68–75. 109   U NDP (Uganda), Regional efforts key for preventing and responding to violent extremism in the East and Horn of Africa, Aug. 29, 2016, http://www.ug.undp.org/content/uganda/ en/home/presscenter/articles/2016/08/29/regional-efforts-key-for-preventing-and -responding-to-violent-extremism-in-the-east-and-horn-of-africa-.htmlhttp://www .ug.undp.org/content/uganda/en/home/presscenter/articles/2016/08/29/regional -efforts-key-for-preventing-and-responding-to-violent-extremism-in-the-east-and-horn -of-africa-.html (last visited Oct. 28, 2017).

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In conclusion, Uganda has a well-structured judiciary with a range of statutory instruments which are suitable for addressing a wide range of national security issues. Still, some instruments would be more effective for prosecuting terrorists, as well as those facilitating terrorist activities, than others. The administration of justice has, however, several important shortcomings with regard to its 2000 Amnesty Act, abusive police practices, and corruption. 4.3

The Terrorism Threat to Uganda: Domestic and Foreign Actors

Uganda has faced a range of domestic armed groups over the past decades, to include the LRA, the ADF, domestic political opposition groups, and Karamojong pastoral and criminal groups. Some terrorist threats no longer represent an existential threat to Uganda, while other groups such as the ADF or certain domestic groups with political, economic and social grievances raise law enforcement issues. In the case of the Karamojong groups, Uganda—like its neighbor Kenya—faces a problem with the availability of small arms and light weapons to pastoral groups in inadequately governed border counties. While Uganda’s judiciary has limited experience with contentious national security/terrorism cases, the evidence indicates that the courts can adjudicate cases in a fair manner while according the accused with important due process rights—absent executive interference. First, while Uganda has faced a long-standing threat from Joseph Kony and his LRA over the past 30 years, Kony no longer poses a serious threat to Uganda. In fact, the situation is such that any former LRA personnel taken prisoner can be prosecuted for criminal offenses in Ugandan courts or for war crimes by the ICC. The insurgency in northern Uganda has its roots in the marginalization of certain ethnic groups in the northern districts after President Yoweri Museveni and the National Resistance Movement/Army (NRM/A), came to power in 1986.110 At first, both politically and spiritually motivated resistance groups opposed the southern-dominated NRM. The LRA then emerged in 1987, initially claiming to be fighting to free the Acholi people of northern Uganda by overthrowing the Ugandan government and installing a regime governed by Kony’s interpretation of the Ten Commandments.111 In fact, Kony used the 110   U.S. Department of State, The Anguish of Northern Uganda: Results of A Field-Based Assessment of the Civil Conflicts in Northern Uganda (unpublished field report by Robert Gersony submitted to the U.S. Embassy in Kampala, Aug. 1997). 111   Opiyio Oloya, Child to Soldier: Stories from Joseph Kony’s Lord’s Resistance Army 58 (2013).

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term adui (rebels) to describe the members of his movement.112 Around 1992– 94 Kony turned against the Acholi, who he apparently blamed for the LRA’s reverses, initiating a systematic terror campaign against them.113 In fact, the Acholi referred to the LRA as “Otong tong,” meaning “cut” in the Luo dialect, with the implication that the LRA mutilated people.114 After 1994, however, Kony made several important changes in strategy. Initially, he commenced a terror campaign that targeted Ugandan civilians, UPDF units, Sudanese civilians living near the Ugandan border, Sudanese People’s Liberation Army (SPLA) fighters, and international personnel working in LRA affected areas. This terror campaign alienated many Acholi. Next, Kony proceeded to abduct children as recruits so that his group could form the nucleus of a new “Acholi” identity. Indeed, Kony achieved international notoriety for his widespread practice of abducting children, typically forcing young boys to become soldiers and awarding young girls as wives to his officers.115 Finally, Kony developed a support relationship with Sudan.116 In short, while the LRA could have been fairly characterized as an insurgent/ rebel movement with plausible political grievances in its early years, by 1994 it had clearly emerged as a terrorist organization that sought to intimidate the Acholi people and the Government of Uganda with a murderous campaign that has since cut a swath through Central Africa and has terrorized hundreds of thousands of people. Later, after the UPDF attacked the LRA camps near Garamba National Park in December 2008, the LRA resumed its terror campaign against civilians largely west and away from Uganda, through parts of the Democratic Republic of the Congo (DrC), the Central African Republic (CAR), and southern 112  Ruddy Doom and Koen Vlassenrot, Kony’s Message: A New Koine? 98 AFRICAN AFFAIRS 390 (1999), http://truth_addict.blogspot.com/2012/03/african-affairs-1999-konys-message -new.html (last visited Nov. 7, 2017). 113   Oloya, Child to Soldier, supra n.111, at 63–64. 114  In fact, LRA brutality has often been symbolic, such as cutting off ears or lips as a warning to others against cooperating with the Government of Uganda (GoU). Id. at 27. 115  As an example, on Oct. 10, 1996, the LRA kidnapped of 139 female high school students from St. Mary’s College boarding school in Aboke, Uganda. One courageous woman, Sister Rachele Fassera, then pursued the armed rebels and personally negotiated the release of 109 girls. Bamuturaki Musinguzi, Recollections of the Aboke Girls Abduction, Observer, Jan. 31, 2013, http://observer.ug/component/content/article?id=23472:recollections-of-the -aboke-girls-abduction (last visited Nov. 7, 2017). 116  Sudan supplied Kony with training, equipment and sanctuary, likely as a proxy in its own fight against the Sudanese People’s Liberation Movement/Army (SPLM/A) and probably because Ugandan President Yoweri Museveni was supporting the SPLM/ A. Mareike Schomerus, The Lord’s Resistance Army in Sudan: A History and Overview 24–33 (Small Arms Survey, 2007).

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Sudan.117 Reportedly, the LRA has apparently suffered significant losses over the past ten years, to the extent that it is planning to end its combat operations against Kony.118 In any case, the LRA personnel over committed a wide range of criminal offenses, under Uganda, Congolese, and Central African law over the past 30 years. Indeed, to the extent that Kony and his subordinates have committed crimes outside of Uganda, those persons can be prosecuted under extra-territorial provisions of Uganda law or by the ICC for war crimes and crimes against humanity. Second, Uganda faces a current threat from the ADF, an elusive group with reported ties to al Shabaab. The ADF was apparently established in the 1990’s as a militant Islamic group that was opposed to the Government of Uganda, largely in response to earlier confrontations between Salafi activists and government forces.119 Initially, Jamilu Mukulu formed a rebel group called the Uganda Muslim Freedom Fighters (UMFF) to champion Muslim rights, but this group escaped to the DRC in early 1995 and then merged with other rebel movements to create the ADF.120 Third, Uganda faces domestic opposition groups with political, social and economic grievances. Like Kenya, Uganda faces a threat from domestic armed groups that has been exacerbated by the supply and widespread availability of small arms, ammunition and explosives coming from Sudan, Somalia and Ugandan military stocks.121 In fact, in some parts of the country, such as Karamoja with its pastoral tribes that often cross the border in search of pasture and water for cattle grazing, there is a lack of government infrastructure and a limited security presence, leading local groups to arm themselves for selfdefense against other tribes and criminals involved in the theft of livestock for immediate resale/profit.122 Like Kenya, Uganda has established a National Focal Point (NFP) on Small Arms and Light Weapons but within the Ministry of Internal Affairs,123 and 117  Human Rights Watch, The Christmas Massacres: LRA Attacks on Civilians in Northern Congo (Feb. 2009). 118  Zack Baddorf, Uganda Ends Its Hunt for Joseph Kony Empty-Handed, N.Y. Times, Apr. 20, 2017, https://www.nytimes.com/2017/04/20/world/africa/uganda-joseph-kony-lra.html (last visited Nov. 7, 2017). 119  Abduhakim A. Nsobya, Uganda’s Militant Islamic Movement ADF: A Historical Analysis, The Annual Review of Islam in Africa, Issue No. 12/13 (2015–2016): 34–35. 120  Id. at 35. 121   Kennedy Agade Mkutu, Guns and Governance in the Rift Valley: Pastoralist Conflict & Small Arms 51–66 (2008). 122  James Bevan, Crisis in Karamoja: Armed Violence and the Failure of Disarmament in Uganda’s Most Deprived Region 16–18 (Small Arms Survey, 2009). 123  James Ndugu’u & Manasseh Wepundi, Controlling Small Arms and Light Weapons in Kenya and Uganda: Progress So Far, Saferworld 11, Working Paper (May 2011).

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has promulgated two successive National Action Plans for Arms Management and Disarmament. Uganda signed the Nairobi Declaration,124 and supports the Regional Centre on Small Arms in the Great Lakes Region, the Horn of Africa and Bordering States (RECSA) with its Best Practice Guidelines,125 but has not signed the 2013 Arms Trade Treaty.126 Initially, the Uganda NFP conducted a national assessment using wide-ranging information collection as a baseline study for its first NAP; this assessment identified numerous issues, including the need for improved stockpile management, improved public education and awareness programs, improved control over auxiliary security forces, improved international and regional cooperation, and a prohibition on the civilian ownership of semi-automatic weapons.127 Critically, the assessment found that local insecurity was “an important factor fueling the demand for small arms and contributing to violent cattle rustling, particularly in the KenyaUganda border area,” highlighted the relationship between development and conflict, and emphasized the need for an improved relationship between the police and the public.128 The current 2012–2017 NAP notes that small arms are responsible for escalating/sustaining conflict and abetting terrorism and other crime; the NAP focuses on controlling and managing existing small arms stocks, the reducing of excess small arms and light weapons, and the preventing the proliferation of small arms.129 Thus, Uganda has made commendable progress with the proliferation of small arms and ammunition by developing an institutional framework to address the problems, by establishing effective inventory control and management, and by reducing the volume of weapons and ammunition in 124  The Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and The Horn of Africa (Nairobi, March 15, 2000), http://www.wcc-coe.org/wcc/what/international/nairobi.html (last visited Aug. 23, 2017). 125  Ndugu’u, Controlling Small Arms and Light Weapons in Kenya and Uganda, supra n.123, at 6–7. 126   U N Arms Trade Treaty (ATT), entered into force Dec. 24, 2014, UN Treaty Collection, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002803628c4 &clang=_en (last visited Aug. 23, 2017). See also table 3, supra (Regional Parties to CT/ Human Rights Treaties/Conventions). 127  The Republic of Uganda (The National Focal Point on Small Arms and Light Weapons), Mapping the Small Arms Problem in Uganda: The Development of Uganda’s National Action Plan on Small Arms and Light Weapons (May 2007). 128  Id. at 53. 129  The Republic of Uganda (The National Focal Point on Small Arms and Light Weapons), Uganda National Action Plan for Arms Management and Disarmament: 2012–2017. Available at: http://mia.go.ug/content/national-action-plan (last visited Dec. 2, 2017).

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circulation through local disarmament efforts.130 Nonetheless, future progress will undoubtedly be tied to expanded community policing, leading to a decrease in the “demand” for weapons for self-protection; improved relations between the government and local communities; and enhanced regional cooperation, to include effective border controls and coordinated disarmament operations. Uganda’s courts have had limited, albeit evolving experience involving contentious terrorism cases. This makes it difficult to make generalized state­ ments about a defendant’s ability to get a fair trial in such cases. Nonetheless, several recent court cases indicate a need for caution in deciding the best means of proceeding forward with high visibility criminal cases. Indeed, the ICD, as a recently established court, has had a limited caseload and has been challenged by a lack of resources.131 The Kwoyelo case,132 involving war crimes committed while the defendant was in the LRA, has been a case of first impression in Uganda. In fact, even though the defendant was taken prisoner over ten years ago, the case is still not ready for actual trial and the recent decision of the Uganda Supreme Court on constitutional issues fails to address several important points such as the characterization of the conflict or whether he could be charged with grave breaches. The trial against a political rival and former friend of the president, Dr. Kizza Besigye, shows a contentious and even disrespectful relationship between the courts and the security services with serious due process implications. The difficult procedural history of his case illustrates the problems associated with permitting the trial of civilians before military courts martial; the defendant has faced simultaneous prosecutions in geographically separated proceedings for the same underlying acts with confrontations between the Executive and the courts, resulting in unreasonable delays in the overall legal proceedings. And, finally, the Awadh case illustrates some of the challenging legal issues and security difficulties faced by Uganda courts in 130  Ndugu’u, Controlling Small Arms and Light Weapons in Kenya and Uganda, supra n.123, at 13–14. 131  Human Rights Watch, Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division (Jan. 2012). Human Rights Watch reports that the defendants have lacked access to counsel, to include adequate time to prepare; that the remuneration for “state brief” (government paid defense counsel) has been inadequate, making it difficult for a defendant to retain experienced counsel; that the practice in the Uganda judiciary of rotating staff and the lack of legal assistants increases the burden on judges; that Ugandan judges and counsel lack experience with complex criminal cases; and that Uganda lacks a witness protection program. See also Kihika & Regue, Pursuing Accountability for Serious Crimes in Uganda’s Courts, supra n.63. 132  Uganda v. Kwoyelo (2015) UGSC 5.

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high profile terrorism cases.133 In short, one could properly ask whether and to what extent Uganda has a coherent judiciary that is able to decide complex, contentious cases in a timely manner. Thomas Kwoyelo is a former LRA colonel who was captured in 2005 by the UPDF in the DRC.134 He was subsequently brought back to Uganda and in 2010, while at the Upper Prison, Luzira, he made a declaration before a prison official that he was renouncing rebellion and seeking amnesty. The Amnesty Commission then referred his petition to the DPP; the commission stated that it believed that Kwoyelo qualified for amnesty. Instead, the DPP preferred criminal charges against him under the 1964 Geneva Conventions Act, to include its grave breaches section under Article 2 of the Act, and the Uganda Penal Code; the case was then committed to trial before the ICD. Kwoyelo then requested a “reference” to the Constitutional Court,135 contending that he was qualified for amnesty and that the DPP had taken discriminatory action against him by indicting him when other similarly situated former members of the LRA had been granted amnesty.136 The Constitutional Court held that the Amnesty Act did not either violate the nation’s international treaty obligations or diminish the prosecutorial powers of the DPP. The Constitutional Court did, however, hold that Kwoyelo had been discriminated against in violation of Article 21(1) (2) of the Uganda Constitution.137 On April 11, 2012, the Attorney General then appealed the case to the Uganda Supreme Court, but the case could not be heard until March 2014 because the Court lacked a quorum.138 133  Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18. 134  Uganda v. Kwoyelo (2015) UGSC 5. 135   C onst. Rep. of Uganda (1995), Article 137, permits the Court of Appeal to sit as a constitutional court and hear petitions from trial courts—other than field courts martial—to decide issues of constitutional interpretation. 136  Here, Kwoyelo offered two examples involving officers who had been senior to him: Brigadier Kenneth Banya who was captured by the UPDF in 2004 and Brigadier Sam Kolo, the LRA’s top negotiator, who had surrendered in 2005, but the Court said that there was no evidence that either had committed the same crimes as the defendant. Uganda v. Kwoyelo (2015) UGSC 5. 137   C onst. Rep. of Uganda (1995), Article 21 provides: “(1) All persons are equal and entitled to the same protection under the law. (2) A person shall not be unfairly treated on grounds of sex, race, colour, tribe, birth, belief, religion, social or economic standing, political opinion or disability of any kind.” 138   Kihika & Regue, Pursuing Accountability for Serious Crimes in Uganda’s Courts, supra n.63, at 1. See also The Task Ahead for Chief Justice Katureebe, Daily Monitor (Kampala), June 16, 2015, http://www.monitor.co.ug/News/National/task-ahead-Chief -Justice-Katureebe/-/688334/2643262/-/h7e857z/-/index.html (last visited Sept. 12, 2017) (noting the two-year delay in the appointment of a new Chief Justice and the impact that delay had upon the Uganda judiciary). The Constitution requires a full bench of all members when hearing appeals from decisions of the Court of Appeals. Const. Rep. of Uganda (1995), art. 131 (2).

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The Uganda Supreme Court, in a unanimous opinion by Chief Justice Bart Magunda Katureebe, carefully considered the Amnesty Act, as well as well the prosecutorial discretion of the DPP, in deciding the propriety of criminal charges against the defendant.139 The Court then focused on eligibility for amnesty under the Act which provides: (1) An Amnesty is declared in respect of any Ugandan who has at any time since the 26th Day of January, 1986 engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by— (a) actual participation in combat; (b) collaborating with the perpetrators of the war or armed rebellion; (c) committing any other crime in the furtherance of the war or armed rebellion; or (d) assisting or aiding the conduct or prosecution of the war or armed rebellion.140 The key issue for the Court concerned the meaning of the words referring to a crime committed “in the furtherance of the war or armed rebellion.” The Court initially found that the Act did not serve as a blanket amnesty and that the DPP had an obligation to determine whether a person seeking amnesty qualified in terms of whether his prior crimes had been committed in furtherance or in the cause of war.141 The Court then examined Uganda’s obligations under the Universal Declaration of Human Rights and the 1949 Geneva Conventions; here, the Court found that the conflict “may be said to largely be not of an international character,”142 but that it also took on an international character when it spread to neighboring countries include Sudan and the DRC. The Court then made a useful distinction between acts “not justified by military necessity and carried out unlawfully and wantonly,” and those acts “in furtherance of the war or rebellion.”143 Finally, the Court turned to the claim of discrimination when other rebels had been granted amnesty. Here, the Court examined the Juba Agreements between the government and the LRA. Even though the agreements were never finalized, the Court noted that the “substantive provisions of this agreement 139  Uganda v. Kwoyelo (2015) UGSC 5. 140   T he Amnesty Act (2000), Part II § 3 (emphasis added). 141  Cf., UN, UN Position on Uganda’s Amnesty Act, supra n.68. 142  Uganda v. Kwoyelo (2015) UGSC 5. 143  Id.

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[contemplated] that individuals should take personal responsibility for grave breaches of the law, only that such persons should be guaranteed fair hearing before an impartial Court.”144 In other words, the Court was saying that LRA leaders knew that the government did not plan to grant blanket amnesty and that some persons would be prosecuted for serious offenses. Indeed, the ICD was created with this purpose in mind. The Court found that the prosecution of one person for crimes committed, but not that of another for acts that may/ not have been the same, did not constitute discrimination in violation of the Constitution. Moreover, the Court explained that the DPP did not have to enumerate his reasons for not granting amnesty to this defendant. While the Court undoubtedly came to the right conclusion by remanding the case to the ICD for trial, its analysis is flawed in several respects.145 First, the Court did not examine the characterization of the conflict—as either noninternational or international armed conflict—in any detail. Clearly, the conflict started out in its early days as a rebellion before morphing into a noninternational armed conflict, but the LRA—as an organized armed group— has long since changed into a criminal (terror) organization that is also preying on innocent civilians. Kony has arguably abandoned his fight against Uganda, first with his 2006 move into the DRC and then, after December 2008, with his further movement west and away from Uganda. Kony likely now seeks only his own survival. And, the fact that the group has received outside support from Sudan or has crossed through at least through three foreign countries (Sudan, the DRC and the Central African Republic) does not necessarily mean that an international armed conflict exists. Indeed, the conflict could probably be characterized as an internationalized non-international armed conflict. Second, the Court discussed the 1977 Additional Protocol II, but there is no indication that it applies to this conflict. Next, there are serious questions about whether Kwoyelo can be charged with grave breaches under Article 147 of the Geneva Convention IV, as opposed to violations of the Uganda Penal Code or war crimes. This is an open question that will undoubtedly turn on what the exact offenses were and when/where he committed those acts. It is conceivable that Geneva Convention IV may apply at some points in the conflict, particularly where it might be construed as international in character, but not others. Here, the Court used terminology 144  Uganda v. Kwoyelo (2015) UGSC 5. 145  This decision did, however, answer several of the points that had been raised by the UN Commissioner, supra n.68; the Uganda Supreme Court held that the Act was not a blanket amnesty and that the DPP had prosecutorial discretion in making the distinction between more culpable persons guilty of war crimes, crimes against humanity and gross violations of human rights, and the less culpable persons who could be granted amnesty. Uganda v. Kwoyelo (2015) UGSC 5.

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interchangeably, no doubt introducing a level of confusion into the case, sometimes referring to grave breaches, gross crimes, gross human rights violations, and serious personal crimes. Indeed, at one point the Court said that the Juba Agreement “make [sic] it clear that individuals should take personal responsibility for grave breaches of the law,” but that term of art appears nowhere in the agreement.146 It will matter greatly to the trial court, the DPP and the defendant about what the particular terms mean and how they are used in this case. Can Kwoyelo be held accountable for “grave breaches” under either Ugandan statutory or international law? Here, the Court has failed to provide any legal or fact finding guidance to the trial court on a critical issue. The treason case against Dr. Kizza Besigye is a cautionary tale about the role of politics and the administration of justice in Uganda.147 In fact, the case demonstrates the abusive and discriminatory treatment that can occur with simultaneous military and civilian jurisdiction over the same acts. Dr. (Colonel) Besigye, who had been President Museveni’s physician during the 1980–86 bush war to overthrow the prior government, retired from the UPDF in 2001.148 He then went on to become the leader of the largest opposition political party, the Forum for Democratic Change (FDC).149 He accused the government of corruption and pushed for the end of the “movement” system of “non-party” government.150 Reportedly, President Museveni responded with threats of disciplinary proceedings and prosecution in military courts.151 Dr. Besigye was then arrested on allegations of membership in the shadowy People’s Redemption Army .

146  The Juba Agreements alternatively uses terms such as serious crimes, human rights violations, or serious criminal charges. 147  Dr. Kizza Besigye & Others v. Attorney General (Const. Petition No. of 2007) UGCC (2010). According to Human Rights Watch, the Ugandan government has a “tendency to use the charge of treason to silence political opponents and those critical of the government.” Human Rights Watch, Open Secret, supra n.59, at 22. 148   I RIN News, UGANDA: Profile of main opposition leader Kizza Besigye, http://www .irinnews.org/report/58147/uganda-profile-of-main-opposition-leader-kiiza-besigye (last visited Sept. 12, 2017). 149  The FDC opposes President Museveni, his policies and his unprecedented time in office. In that respect, Dr. Besigye is undoubtedly a lightning rod for the opposition and the government’s actions against him have clearly served as a catalyst for protests. FDCUganda.org, URL: http://www.fdcuganda.org/ (last visited June 17, 2015). See also Dennis Lynch, Burkina Faso’s President Blaise Compaoré Is Not Even Among Five LongestServing African Presidents, Int’l Bus. Times, June 23, 2015, http://www.ibtimes .com/burkina-fasos-president-blaise-compaore-not-even-among-five-longest-serving -african-1716521 (Museveni has been Uganda’s head of state for almost 30 years, making him one of the five longest serving on the continent). 150  Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 212. 151  Id.

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(PRA) and in connection with an alleged plot to overthrow the government between the years 2001–04. He, along with several others, was charged with treason and misprision of treason. Subsequently, Dr. Besigye and his coconspirators applied for amnesty, but the record is not clear whether the gov­ ernment actually acted on this petition. On November 16, 2005, while making bail applications at the High Court of Uganda in Uganda, the defendants were seized by an armed team from the JATT and taken back to Luzira Maximum Security Prison (near Kampala).152 On November 24, at Makindye Military Barracks, the government then commenced a general court martial charging terrorism, rape153 and unlawful possession of a firearm. In December 2005, despite an injunction by the High Court ordering the stay of court martial proceedings, the UPDF ignored the order and continued its proceedings.154 On January 31, 2006, based upon a petition from the Uganda Law Society, the Constitutional Court held that the trial in the general court martial proceedings for the same acts violated the Uganda Constitution.155 Nonetheless, the state still held the defendants at Luzira Prison.156

152  Dr. Kizza Besigye & Others, supra n.147. This incident is referred to in the dramatized court decision as the “First Court Siege.” According to Human Rights Watch, this siege and a later one conducted in March 2007, were actually conducted by the “Black Mamba Hit Squad,” a shadowy intelligence organization. Human Rights Watch, Open Secret, supra n.59, at 16. 153   The rape charge was based upon a 1997 accusation. IRIN News, supra n.148. In fact, the court that ultimately dismissed the charge did so by raising serious questions about the adequacy of the evidence, implying that the evidence could have been fabricated. Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 213–14. 154  Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 215–16. 155  Uganda Law Society v. Attorney General of the Republic of Uganda (Constitutional Petition No. 18), (2006) UGCC 10. This Constitutional Court case raises several interesting points about the concurrent jurisdiction of the High Court and the General Courts Martial. First, the Court indicated that the “first court siege” had contravened the Constitution and had violated the judiciary’s independence. Second, the Court concluded that the general courts martial and the High Court were equivalent courts that could assert jurisdiction over certain acts, but to do so in the same case would violate the fair hearing rights in the Constitution. Third, the Court clarified the appellate procedures, namely that cases should be appealed from the Court Martial Court of Appeals to the Court of Appeal of Uganda and then to the Supreme Court. The Court did, however, note a contrary case that had held that decisions of the Court Martial Court of Appeals should be appealed to the High Court (the appellate processes are not delineated in either of the 1995 or 2005 UPDF Acts). Finally, the Court concluded that the military courts could properly try civilians for firearms offenses, but that the military courts lacked jurisdiction to try civilians under the 2002 Anti-Terrorism Act. 156  Naluwairo, Military Justice, Human Rights and the Law, supra n.30, at 217.

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Eventually, the treason trial commenced in the High Court and, at the same time, the government proceeded to amend the charges from the first general court martial proceeding.157 On November 9, 2006, the government then commenced a second general court martial proceeding, also at Makindye Military Barracks. Allegedly, that charge sheet contained the same/similar defects to the ones from the prior court martial proceeding that had rendered it unconstitutional in the January decision by the Constitutional Court.158 Moreover, this court martial proceeding charged the defendants with an offense, not clarified in the Court’s decision, which was not defined in 2001. Several warrants were then served on the Uganda Prisons Service to deliver the defendants to the Constitutional Court on various days in January 2007, but the defendants were never produced. Later, on March 1, the defendants were taken to the High Court for bail processing, but heavily armed security personnel again took control of the court.159 “Scuffles” apparently ensued, but the defendants were not told why they were being re-arrested or where they would be taken. One advocate stated under oath: “The security personnel simply insisted that they had orders not to permit the Bailed petitioners to go out on bail as ordered by the Court.”160 Later that same day, after the defendants had been turned over to the security forces, they were reportedly beaten up. In the interim, the claimants sought relief in the East African Court of Justice (EACJ) on human rights issues.161 The EACJ explained that it did not have jurisdiction to address human rights issues under Article 27 of the Treaty for the Establishment of the East African Community because there has been neither a determination of the Council nor the conclusion of a protocol to that effect. But, while the Court made clear that it could not explicitly hear and address human rights violations per se, that it could adjudicate on rule of law issues that also implicated human rights concerns. In that respect, the EACJ held that the actions of the Ugandan officials who had preempted the execution of bailed prisoners by re-arresting, incarcerating, and re-charging them before a Court Martial had violated “the independence of the judiciary, a corner stone 157  Dr. Kizza Besigye & Others, supra n.147. 158  Id. 159  Id. This incident is referred to in the record as the “Second Court Siege.” Apparently, this siege also resulted in the unlawful confinement of the judges and court staff for over six hours. The record also indicates that Besigye was taken that day to Bushenyi (in western Uganda) where he was charged with murder. 160  Statement by Titus Kiyemba Mutale, para. 25, Besigye & Others v. Attorney General, supra n.147. 161  James Katabazi and 21 Others v. Secretary General of the East African Community and the Attorney General of the Republic of Uganda (East African Court of Justice), Reference No. 1 of 2007, Nov. 1, 2007.

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of the principle of the rule of law”162 and consequently also violated the EAC Treaty. In October 2010 the Uganda Constitutional Court eventually held against the government on multiple points in a unanimous opinion, describing the evidence as largely not challenged and the government’s actions as an affront to the Constitution.163 At this point, the Court’s decision then proceeds with a two page dramatic, even poetic, recitation from a book by another judge called “The Rape of the Temple.”164 The court found that the defendants had been subjected to “humiliating, cruel and degrading treatment” that violated the Constitution, that they had been deprived of a fair hearing, and that the unprecedented acts of state at the High Court of Uganda had interfered with the exercise of judicial power in violation of the Constitution. The Court then issued a stay of all criminal proceedings in all courts and a direction to each to release the defendants; the Court also indicated that the court martial proceedings, as well as the charges in the treason and murder trials, were null and void. This case illustrates some of the difficulties faced by the defendants in contentious national security cases that are heard in Uganda’s courts. Initially, it is difficult to know whether there was actual merit to any of the criminal charges that were filed against Dr. Besigye or any of his co-defendants. What is clear is that he was charged in multiple courts on varying charges, at least some of which could not be sustained under the 1995 Uganda Constitution. Second, it appears that there was a significant, but probably unquantifiable, political component to the case. Dr. Besigye had been a former colleague of President Museveni, but has now accused his government of corruption and sought to replace him in office. Third, the government apparently committed numerous due process violations and which eventually foreclosed the government’s opportunity to have whatever evidence it did have heard before a neutral factfinder. Finally, the security forces demonstrated a heavy-handed approach that demonstrates a lack of respect for the judiciary. A further example is the terrorism case against 24 persons who were arrested during the September 2009 rioting in Kampala that resulted from the government’s refusal to allow the Kabaka, Ronald Muwenda Mutebi II, to visit his subjects in Kayunga.165 Reportedly, the police responded to the mass riots 162  Id. at 21. 163  Dr. Kizza Besigye & Others, supra n.147. 164  Id. 165  N ew Vision (Kampala), 97 More Charged over City Riots, Sept. 22, 2009, https://www .newvision.co.ug/new_vision/news/1235988/charged-city-riots (last visited Oct. 27, 2017).

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with excessive force that left considerable property damage and 40 persons dead.166 The police arrested over 500 persons; 24 persons were initially charged under the 2002 Anti-Terrorism Act, with the State dropping charges against 13 persons and proceeding against the remainder.167 The High Court eventually acquitted the remaining defendants in May 2012, based largely on several constitutional violations in the State’s prosecution of the case. First, the Court found a violation of Article 23(3) of the Constitution of Uganda, with respect to the failure to bring the persons before a magistrate within 48 hours of arrest (the defendants were in police custody for 11 days before being charged). Second, the Court found that the 2 ½ year delay in bringing the case to trial violated the speedy trial guarantee under Articles 28(1) and 44(c). Third, the Court found several specific sections of the Anti-Terrorism Act did not clearly define what constituted the offense of terrorism and were, therefore, void based upon vagueness. Finally, the Court found that the investigation and prosecution failed to comply with the statute based upon numerous irregularities. The Court explained that the “case failed because both the Police [and] the prosecution, in their desire to achieve a conviction at all costs totally ignored the basic and elementary requirements of not just Police procedures and criminal procedure, but also ignored most importantly the fundamental duties imposed by all of them by the Constitution.”168 A further example is the terrorism case against Omar Awadh and ten co-defendants which is based upon the July 2010 bombing of the Ethiopian Village Restaurant in Kampala that killed at least 74 persons who were watching the World Cup Finals.169 Initially, the Inspector General of Police formed a large investigation team to include members of the Uganda Police and the JATT. After the team found that the attack had been coordinated across several countries, to include Somalia, Kenya, Tanzania and the United Kingdom, the government sought assistance from several foreign governments and organizations. The defendants were subsequently arrested outside Uganda and, in September 2010, were indicted before the ICD on multiple counts of terrorism, murder and attempted murder. The defendants then filed 166  Human Rights Watch, Uganda: Investigate 2009 Kampala Riot Killings: One Year Later, No Prosecutions and Failed Parliamentary Inquiry, Sept. 10, 2010, https://www.hrw.org/ news/2010/09/10/uganda-investigate-2009-kampala-riot-killings (last visited Oct. 27, 2017). 167  Uganda v. Robert Sekabira & 10 Others, High Court Criminal Case No. 0085 of 2010. 168  Id. at 18. 169  Xan Rice, Uganda bomb blasts kill at least 74, The Guardian, July 12, 2010, http://www .theguardian.com/world/2010/jul/12/uganda-kampala-bombs-explosions-attacks; Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18.

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a petition in the Constitutional Court challenging, on constitutional grounds, their arrest, detention and transfer to Uganda; their treatment while held in custody by the Rapid Response Unit170 in Uganda; and the on-going criminal proceedings against them in the High Court (ICD). In part, the defendants alleged that they had been subjected to extraordinary rendition from Kenya (that is, the Kenya Police did not have an arrest warrant or an extradition order); that they had been tortured in Kenya; and that they had been held in “ungazetted” locations and tortured in Uganda. In fact, the defendants cited the case involving Kizza Besigye as precedent for the proposition that mistreatment during detention warranted dismissal of the case. In response, the Constitutional Court made numerous important findings.171 First, the Court did not accept the claims of illegal arrest, giving credit to the statements made by Uganda Police about the transfer process that had taken place. Second, the Court found that the defendants had been held in Uganda in excess of 48 hours before being brought before a magistrate, but that violation was insufficient to grant a stay of proceedings and could be addressed by the trial court through appropriate compensation.172 Third, the court distinguished the Besigye case as involving serious—and largely undisputed—breaches of human rights by Ugandan officials, but that the present allegations were general due process violations that had been controverted by the government. Here, the Court indicated that the trial court could consider those claims on remand and, if appropriate, grant similar relief to the defendants. Fourth, it determined that the trial court could assess circumstances in which confessions were made and whether coercion had been involved. Next, the Court considered—but found moot—the defense challenge to the ICD itself. Essentially, the Court concluded that the ICD had jurisdiction to hear the case because the case was assigned to a division of the High Court of Uganda. Finally, the Court considered the novel issue (for Ugandan courts) of extraordinary rendition from Kenya. The Court made lengthy and in depth review of the

170  The Rapid Response Unit is an ad hoc security organization that has been accused of human rights abuses. Human Rights Watch, Open Secret, supra n.59, at 15–17. See also Human Rights Watch, Violence Instead of Vigilance Torture and Illegal Detention by Uganda’s Rapid Response Unit (2011). 171  Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18. 172  Under the 1994 Police Act, art. 25(1), a “police officer on arresting a suspect without a warrant shall produce the suspect so arrested before a magistrate’s court within forty -eight hours unless earlier released on bond.”

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leading U.S.,173 South African,174 Zimbabwean,175 and British176 cases before finding that the government did not violate the Constitution in receiving the suspects from foreign states.177 The ICD eventually rendered an interesting criminal decision involving Omar Awadh Omar and his twelve co-defendants; 12 defendants were charged with membership in a proscribed terrorist organization (al Shabaab, as an affiliate of al Qaeda), violation of Section 7(2) of the 2002 Anti-Terrorism Act (i.e., the offense of terrorism) under the doctrine of common intention, 76 counts of murder under the Penal Code Act, attempted murder, and violation of Section 8 of the 2002 Act (i.e., aiding and abetting terrorism).178 One defendant was charged and acquitted under Section 29 of the 2002 Act (i.e., accessory after the fact to a terrorism offense). Initially, the court held that the government had failed prove the charge involving membership in a proscribed terrorist organization, not because the government did not prove membership in al Shabaab but because al Shabaab could not be construed as 173  I d. (citing Ker v. Illinois, 119 U.S. 436 (1886), and United States v. Alvarez-Machain, 504 U.S. 655 (1992)). 174  Id. (citing State v. Ibrahim (1991)(2) S.A.553 (holding that the court lacked jurisdiction to try a defendant who had been abducted from his home in Swaziland by South African Police)). 175  Id. (citing Beahan v State (1992) LRC (Crim)). 176  Id. (comparing Regina v. Horseferry Road Magistrate’s Court Ex Parte Bennett (1994) 1 A.C. 42 (allowing an appeal where the defendant had demonstrated a level of collusion between the British Metropolitan and the South African Police in kidnapping an individual and bringing back to the UK for trial), with Regina v. Nicholas Robert Neil Mullen (1999) EWCA Crim 278 (the Court of Appeal overturned a conviction where the British Secret Intelligence Service “took active steps to persuade the Zimbabwe Central Intelligence Organization (CIO) that there existed grounds for deportation and provided evidence, including, crucially, evidence of previous convictions, as well as draft documents recommending grounds for deportation,” all in an effort to evade domestic and international law)). 177  The court noted that any alleged illegalities occurred abroad, without any active Ugandan involvement, and that the Ugandan authorities did not violate any foreign states’ sovereignty; all actions had occurred with the full cooperation of the governments of Kenya and Tanzania. Thus, the court would not consider any allegations of improprieties that may have occurred before the suspects were transferred to the Ugandan authorities. 178  Uganda v. Hussein Hassan Agade & 12 Others, High Court of Uganda (International Crimes Division), Criminal Session No. 0001 of 2010, judgment of May 26, 2016. This case was made more difficult for Uganda because unidentified gunmen assassinated the lead prosecutor for the case, Joan Kagezi, in March 2015. Samson Ntale, Motorcycle gunmen kill Ugandan prosecutor, CNN, Mar. 31, 2015, http://www.cnn.com/2015/03/31/world/uganda -prosecutor-death/index.html (last visited Nov. 10, 2017).

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listed organization in the 2d Schedule to the Act. However, the ICD convicted seven persons of terrorism, murder (malice aforethought), attempted murder, and aiding and abetting terrorism, and acquitted five persons of all charges based upon an insufficiency of the evidence. In a lengthy and well-reasoned decision, the ICD found that seven defendants had engaged in terrorism on behalf of al Shabaab in response to Uganda’s deployment of troops to Somalia and with the intent to compel a Ugandan withdrawal. The ICD carefully considered a range of important evidence, to include accomplice testimony, expert witness testimony from a Special Agent from the U.S. Federal Bureau of Investigation (FBI) and from a handwriting expert, records from cellular phone records to include call data records and geo-locational information, immigration records, an FBI forensic report showing trace evidence of explosives on a mattress cover, retracted confession statements, and remittance records from a money transfer business based in Eastleigh (Nairobi). Recently, the government tried an important terrorism case in the High Court’s ICD involving fourteen persons from the Tabliq Sect (later known as Jamiya Dawa al Salafiya), a Sunni Islamic missionary movement, charged with terrorism offenses, including murder and attempted murder, in connection with splits and rivalry in Uganda’s Muslim community that dated back to 2011.179 The case largely centered on attempts to intimidate the public during the period December 2013 and June 2015, the December 2014 murder of Sheikh Mustafa Bahiga, the January 2015 attempted murder of Sheikh Dr. Haruna Jemba, and the June 2015 murder of Sheikh Hassan Ibrahim Kirya.180 At trial, the ICD used three lay assessors and the government produced 36 witnesses, to include three businessmen who were permitted to testify in pseudo names; all fourteen defendants elected to exercise their constitutional right not to present any evidence and to remain silent. In its August 2017 decision, the ICD addressed difficult evidentiary issues, to include the government’s use of circumstantial evidence (no direct evi­ dence placed any of the accused persons at the scene of the murders), a dying declaration made by Mustafa Bahiga (rejected by the court), prior death threats made against the victims, fliers that had been distributed with defamatory messages against the victims and the association of those fliers 179  Abubaker Lubowa, Uganda Jails Terror Suspects to Life Imprisonment, E. Afr., Aug. 22, 2017, http://www.theeastafrican.co.ke/news/Uganda-jails-terror-suspects-for-life/2558 -4066878-o72esoz/index.html (last visited Sept. 2, 2017). 180  Uganda v. Sheikh Siraje Kawooya & 13 Others, High Court of Uganda at Kampala (International Crimes Division), No. 004 of 2015.

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with seven of the accused, and meetings and telephone records involving the accused. The ICD then made a detailed examination of the relevant section of the 2002 Anti-Terrorism Act, finding that the fliers “amounted to attack of the reputations of the people named.”181 The court convicted six persons based upon the attacks on reputation/character and murder threats made against the victims, with four persons receiving life sentences and two persons receiving 30 year sentences. However, the ICD found that the government had failed to prove either murder or attempted murder as acts of terrorism against any of the accused. Uganda has recently indicted nine officers, to include several senior police officers, in an interesting case involving the October 2013 kidnapping and deportation of a former Rwandan bodyguard to President Paul Kagame.182 The defendants have been recently arraigned before a military court martial; the case also raises a risk of increased tensions because some people see the case as an example of Rwandan interference in Uganda. On one hand, senior Ugandan police officers are accused of complicity in an unsanctioned extraordinary rendition, raising serious concerns about the rule of law. On the other hand, Uganda’s willingness to prosecute senior police officials indicates an effort to improve police accountability. 4.4

Counterterrorism Assessment and Recommendations

Uganda has clearly evidenced a willingness to address terrorism offenses through diverse legal instruments, to include prosecution before its courts and amnesty within certain bounds. Each instrument has potential value, if one examines the culpability of the person concerned and the adequacy of the relevant processes. Nonetheless, the Uganda judiciary may be unable to prosecute the complex criminal cases involving politically charged terrorism offenses. Uganda has lingering problems with its judiciary, with the applicable criminal statutes, and in its administration of justice. 181  Id. at 48. 182  Christina Okello, Uganda spy case puts strain on relations with Rwanda, RFI, Oct. 31, 2017, http://en.rfi.fr/africa/20171031-uganda-spy-case-puts-strain-relations-rwanda-museveni -kagame (last visited Nov. 7, 2017). See also Human Rights Watch, Rwanda: Ex-Military Officers Convicted Over Comments: Investigate Allegations of Torture, Witness Tampering, Apr. 1, 2016 (explaining that a Rwandan military court had convicted the former bodyguard, Joel Mutabazi, on charges involving terrorism, forming an armed group, and other terrorism offenses) (https://www.hrw.org/news/2016/04/01/rwanda-ex-military -officers-convicted-over-comments (last visited Nov. 7, 2017).

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Uganda has an effective civilian judicial structure, to include new legal instruments and institutions (e.g., the ICD), with a judiciary that is developing the requisite expertise to handle such cases. Still, the judiciary has been plagued by problems with staffing, insufficient resources, allegations of corruption, and periodic political interference. Uganda lacks a witness protection program.183 On one hand, it would be a challenge to hold high profile terrorism trials in a location where witnesses and the public could view the proceedings, without excessive interference from the Ugandan security services. On the other hand, it would also be a challenge to try cases against government officials and UPDF members without outside interference and threats against court personnel and witnesses. This raises concerns about the supremacy of the law and accountability in Uganda. Uganda also has multiple statutes that could be applied to many, if not most, offenses committed by terrorists and terror groups. Suspects can be charged under the Penal Code of 1950, the Geneva Conventions Act of 1964, the UPDF Acts (for arms and uniform violations only), the 2002 Anti-Terrorism Statute, and the 2012 Prevention and Prohibition of Torture Act. Nonetheless, Uganda has several related issues with its administration of justice, raising concerns that a defendant might not receive a fair trial; the Ugandan government should consider several changes in its law. First, Uganda should reconsider its use of the treason and misprision of treason articles in its 1950 Penal Code, particularly since neither offense has an applicable statute of limitations. Uganda could, for example, consider a 10-year statute of limitations for treason-related offenses. Both articles raise concerns, if not on the statutory language itself that allows a person to be charged without having committed an overt act, at least as applied to certain defendants for what amounts to political speech. Second, Uganda should also consider a constitutional amendment prohibiting the re-trial of a criminal suspect after the swearing of the first trial witness; Uganda should adopt an “attachment” rule, much like that in the United States, which prevents the government from prosecuting someone in successive partial retrials.184 This would help ensure

183  Gadier Abbas, “The Adequacy of Uganda’s War Crimes Court,” Legal Memorandum, The Public International Law Group (Nov. 23, 2008). 184   C onst. Rep. of Uganda (1995), art. 28(9). Currently, Article 28 provides: “(9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence….” Compare Republic of Uganda, The Magistrates Act, 1971, art. 26–28, with Republic of Uganda, Trial on Indictments Act, 1971, art. 3.

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that the Uganda Police conducts a timely and effective investigation before the DPP proceeds with an indictment/prosecution. Third, Uganda should repeal those sections of the UPDF Act that permit the court martial of civilians for the illegal possession of weapons and uniforms. Civilians should not be subject to criminal trials in military courts, absent capture in a combat zone where civilian courts are not open and functioning; nor should civilians be faced with simultaneous prosecutions in military and civilian courts, absent entirely separate charges for separate offenses. In any case, there are serious questions about whether an accused person can receive a fair trial in a court martial and whether that court functions independent of the chain of command. Fourth, Uganda should amend the Amnesty Act to make clear whether the protections offered are a discretionary grant, or if their receipt is automatic once certain qualification criteria are met. This would help avoid situations like that of LRA Major General Acellam where there was a three-year delay in making this decision, with considerable interim political controversy. Initially, if there are certain rebels who will be subject to prosecution even if captured (as opposed to those who voluntarily renounced the fight by surrendering), those persons should be identified by name. Clearly, there should be a distinction between senior rebels culpable for planning and coercing others (i.e., who have “command responsibility”) and less senior people who participate based upon a lack of choice in the matter. The Act should also be clarified on whether a captured person will be allowed to qualify for amnesty. This would act as incentive for persons to surrender; such persons would have to choose whether to stay “in the bush” and risk death/trial, or surrender and claim the benefits of amnesty. In any case, the government should publicly announce a cut-off date for surrender, after which the Amnesty Act would be allowed to lapse. Finally, and probably most important, there should be a stricter separation between the Executive branch and the judiciary. This should be a respectful relationship, with strict compliance with the rule of law, helping to avoid court house “sieges” by police and security services like that in the Kizza Besigye case. Moreover, the Uganda Parliament should establish greater oversight over the executive branch services/agencies conducting law enforcement investigations; each service/agency should have clear authorities and limit­ ations. This should help reduce overlap and improve effectiveness, and should help prevent human rights abuses. Ugandan judges require dedicated, qualified staff, not subject to periodic rotation between different departments.

Chapter 5

Counterterrorism Law and Practice in Burundi and Rwanda 5.1

Introduction: Ethnic Conflict between the Hutu and the Tutsi

The long-standing ethnic conflict in the Great Lakes Region, largely involving the Hutu-Tutsi conflict in Burundi and Rwanda, has been one of the deadliest and most protracted conflicts on the African continent. Some observers contend, for example, that the Tutsi have distinct origins, physical characteristics, and other attributes that account for their long-standing social and economic status, but others dispute many of the points as “mythicohistories.”1 Nonetheless, whether the conflict narrative is a carryover from precolonial antagonisms or a direct outcome from German/Belgian colonial rule, it has current meaning for many people on both sides of the ethnic divide who have lived together in the same hills and have spoken the same language (Kirundi) for generations. Indeed, many Hutu today have seen themselves as oppressed and discriminated against—a form of black ethnic “apartheid”— under minority Tutsi rule, while many Tutsi have been fearful of the Hutudomination (i.e., rule by the “democratic majority”) that could result through the electoral process. Still, the underlying ethnic tension between the two groups provides the fuel for the terrorist threat facing each country, often with events in one country impacting the tensions and threats faced by its neighboring partner. In fact, both countries share many commonalities, to include geographic size and population base,2 economic development,3 ethnic composition, 1  In fact, Rene Lemarchand argues that the conflict centers around “three basic disagreements: the significance of ethnicity as a source of tension; the nature of cultural differentiation between Hutu and Tutsi; and the role of history in shaping ethnic antagonisms.” Rene Lemarchand, Burundi: Ethnic Conflict and Genocide 17–18 (1994). 2  According to The World Factbook, published by the Central Intelligence Agency, the estimated 2017 population of Burundi is 11.4 million persons in a land area of 25,680 square kilometers, while the estimated 2017 population of Rwanda is 11.9 million persons in a land area of 24,688 square kilometers. CIA, The World Factbook, https://www.cia.gov/ library/publications/the-world-factbook/geos/rw.html (last visited Jan. 3, 2018).https://www .cia.gov/library/publications/the-world-factbook/geos/rw.html (last visited Jan. 3, 2018). 3   The two land-locked countries have agriculturally-based economies and are heavily dependent on Uganda and Tanzania for the transshipment of coffee, tea, and cotton for the

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004389892_006

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and a fractured history involving political and economic grievances among competing groups that warrants a comparative analysis of how each country has addressed the same/similar ethnic issues. This also suggests that each country must consider in the situation in its neighbor when assessing its own counter-terrorism responses. This chapter considers the recent, difficult history of ethnic conflict in each country, to include how human rights abuses in each has impacted events in its neighbor. This is followed by a detailed review of first Burundian and then Rwandan counter-terrorism law and practice; this is followed by an analysis of the overall terrorism threat faced by each country, with recommendations for changes in national law. While there is limited empirical data (namely case law) about how each country enforces its laws, the reporting by international organizations, non-governmental organizations, academics and the press strongly suggests a major break-down in the rule of law in Burundi and significant shortcomings in Rwanda (e.g., issues with torture, enforced disappearances and arbitrary detention). Burundi is likely on the precipice of non-international armed conflict with Tutsi groups conducting terrorist attacks and the Hutu-dominated government conducting state-sponsored terror attacks against its political opponents. The overall situation in Rwanda poses a less immediate threat to state stability, but still raises concerns about political accommodation and the rule of law. Both countries were ruled by traditional, local Tutsi monarchies during the pre-colonial period, followed by joint governance first by Germany after the 1884–85 Berlin Conference and then by Belgium under a League of Nations mandate after World War I until each achieved independence on July 1, 1962. Many observers estimate that the Hutu represent some 80 percent of the people in each country, each having an overall population of 12 million persons, with the remainder divided between the Tutsi (10–15 percent) and the Batwa (an isolated pygmy people representing perhaps one percent of the overall population in each country).4 Thus, it has been an existential struggle for political and economic power in each country between the Tutsi and the

export market. CIA, The World Factbook, https://www.cia.gov/library/publications/theworld-factbook/geos/rw.html (last visited Jan. 3, 2018). This implies that both countries have a strong need for thorough integration in the East African market. But this also means that Uganda and Tanzania are well-positioned to enforce political and economic sanctions in the face of uncontrolled refugee flows from either Burundi or Rwanda. 4  See, for example, Godfrey Mwakikagile, Burundi: The Hutu and The Tutsi, Cauldron of Conflict and Quest for Dynamic Compromise (2012), 14; and Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 6.

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Hutu that has created considerable carnage, often neighbor-on-neighbor using primitive weapons such as machetes, clubs, and hoes. Both Burundi and Rwanda are signatory to many important human rights instruments under international law, even though both countries have also been non-compliant with many specific provisions. Indeed, some might argue, with considerable justification, that each nation has adopted state-sponsored terrorism against its own non-ruling domestic groups and has periodically provided sanctuary to ethnic-kin terror groups operating against its neighbor. Both countries, for example, are parties to the 1948 Genocide Convention,5 the 1966 International Covenant on Civil and Political Rights (ICCPR),6 and the 1984 Torture Convention (to include the Optional Protocol),7 even though there have been widespread human rights abuses since 1959 to include arbitrary arrest and prolonged detention, extrajudicial killings, the forced resettlement of civilians, torture, and genocide. Neither country is a State Party to the 2006 Convention on Enforced Disappearances (ICPPED).8 The UN Arms Trade Treaty,9 the UN Programme on Small Arms and Light Weapons,10 and the

5  Burundi acceded to the 1948 Genocide Convention on Jan. 6, 1997, and Rwanda acceded to it on Apr. 16, 1975. UN Treaty Series, https://treaties.un.org/ (last visited Oct. 26, 2017). 6  Burundi acceded to the 1966 ICCPR on May 9, 1990, and Rwanda acceded to it on Apr. 16, 1975. UN Treaty Series, https://treaties.un.org/ (last visited Oct. 26, 2017). 7  Burundi acceded to the 1984 Torture Convention on Feb. 18, 1993, and Rwanda acceded to it on Dec. 15, 2008. Burundi acceded to the Optional Protocol on Oct. 18, 2013, while Rwanda did so on Jan. 31, 2013. UN Treaty Series, https://treaties.un.org/ (last visited Oct. 26, 2017). The Optional Protocol created a system by which independent international and national bodies could visit “places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment,” as well as a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to carry it these functions. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Oct. 18, 2013), art. 1, UN Treaty Collection, https:// treaties.un.org/ (last visited Nov. 2, 2017). 8  I nternational Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), entered into force Dec. 23, 2010. See table 2, supra. 9  U N Arms Trade Treaty (ATT), entered into force Dec. 24, 2014, UN Treaty Collection, https://treaties.un.org/Pages/showDetails.aspx?objid=08000002803628c4&clang=_en (last visited Aug. 23, 2017). 10   U N Development Programme, Small Arms, and Light Weapons, http://www.ke.undp .org/content/kenya/en/home/operations/projects/peacebuilding/smallarms.html (last visited Aug. 23, 2017).

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Nairobi Declaration11 have considerably less relevance in a region where the common instruments of killing have been machetes, hoes, sticks, and other everyday working implements. However, politically-inspired hate speech— witness the inflammatory role of the Hutu-controlled Radio Television Libre des Mille Collines (RTLM)12 or the incendiary articles in the Hutu tabloid newspaper Kangura (“Wake Them Up”)13 during Rwanda’s 1994 genocide— raises greater concerns in the Great Lakes Region than it does elsewhere in the East African Community (EAC).14 11  The Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (Nairobi, March 15, 2000), http://www.wcc-coe.org/wcc/what/international/nairobi.html (last visited Aug. 23, 2017). 12   Gerard Prunier, The Rwanda Crisis: History of a Genocide 129 (1995). After the state-run Radio Rwanda began to moderate its rhetoric in 1992, Hutu hard-liners created the RTLM which began broadcasting racially discriminatory messages in early 1993, to include referring to the Tutsi as inyenzi (cockroaches) and making incitements to violence. Robert F. Muse, Report and Recommendation to the Government of Rwanda on the Role of French Officials in the Genocide against the Tutsi (Dec. 11, 2017). See Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgement (Dec. 2, 2008) (with the trial chamber concluding that broadcasted songs, as well as hate speech by loud speaker on a public road, could constitute incitement to genocide). See also Susan Benesch, Song as a Crime against Humanity: The First International Prosecution a Pop Star, in Trials and Tribulations of International Prosecution 64 (Henry F. Carey & Stacey M. Mitchell, eds., 2013) (explaining that RTLM was also known by its nickname “Radio Machete”). According to former Tanzanian president Julius Nyerere, hate speech has been a prevalent problem in both Burundi and Rwanda: “Ethnic conflict will arise when leaders in the society deliberately strengthen the concept of ethnicity, and for their own purposes ignite hostility. In Rwanda and Burundi, conflict has economic roots. The fight for power is mainly a fight for economic resources. Ethnicity is simply being exploited.” Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 131–32. The power of radio cannot be underestimated—in a largely illiterate country—as either an aggravating or mitigating factor in politically sensitive situations. 13  Kangura was responsible for publishing the widely-circulated, notorious tract “The Hutu Ten Commandments” and other poisonous rhetoric. Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (2017), at 46–50. 14  In fact, the International Criminal Tribunal for Rwanda (ICTR) has prosecuted several cases involving Hutu hate speech during the 1994 genocide. In the first case, Prosecutor v. Georges Ruggiu, the defendant worked as an RTLM announcer and made anti-Hutu broadcasts. He pleaded guilty to direct and public incitement to genocide and to crimes against humanity (persecution). On the crimes against humanity charge, the ICTR explicitly adopted the reasoning from 1946 decision by the International Military Tribunal at Nuremberg in its Julius Streicher case that had involved the incitement of the German public by the publisher of an anti-Semitic newspaper. The ICTR explained that the “Streicher Judgement is particularly relevant to the present case since the accused, like Streicher, infected peoples’ minds with ethnic hatred and persecution.” Prosecutor v.

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Both countries have experienced varying levels of civil disturbances and non-international armed conflict since 1959 as the Hutu and Tutsi have struggled for political-military control, sometimes with horrendous civilian casualties and large-scale refugee flows into adjoining countries (i.e., Zaire/ Democratic Republic of Congo, Uganda and Tanzania). According to one writer, “Rwanda is Burundi, and Burundi is Rwanda. It is a tangled web. What happens in one country very often affects the other. The conflicts feed on each other.”15 In essence, the perennial Hutu-Tutsi conflict, with its own origins and grievances, provides the basis for the existential threats to each nation’s political, economic and social stability. This raises important issues with respect to the rule of law and bilateral cooperation as each nation confronts its own terrorism threat. Both countries have experienced widespread human rights abuses, as well attacks “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” within the meaning of the 1948 Genocide Convention.16 Burundi has experienced multiple spasms of systematic Ruggiu, Case. No. ICTR-97-32-I, Judgement and Sentence, para. 19 (June, 1, 2000). In other words, hate speech alone—without necessarily involving action—could serve as the actus reus for a conviction involving crimes against humanity. The second case, the so-called Media Case, involved two persons who had helped set up RTLM and one person who had founded Kangura and had served as its Editor-in-Chief. The ICTR affirmed convictions for direct and public incitement to genocide, instigating the commission of genocide, instigating the commission of the crime against humanity (persecution), and aiding and abetting genocide. Prosecutor v. Nahimana, Case No. ICTR-99-52-A, Judgement (Nov. 28, 2007). See also Gordon, Atrocity Speech Law, supra n.13, at 220–242 (examining the differential treatment of the crimes against humanity charge in hate speech cases— involving speech not directly calling for violence—by the ICTR and the Yugoslav Tribunal). In any case, this line of jurisprudence suggests that hate-speech involving persecutions— by either state or non-state actors—against an identifiable group on political, racial, national, ethnic, cultural, religious, and other grounds recognized as impermissible under international law could support a criminal prosecution for crimes against humanity. This provides an important international legal complement to municipal laws that criminalize hate speech involving terrorism. 15   Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 25. 16  The 1948 Genocide Convention, art. 2, provides: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;….” Some argue that there have been numerous incidents—under successive Tutsi-led governments in Burundi—that can be properly defined as genocide under international law. L.A. Ndimurwimo & MLM Mbao L du Plessis, Rethinking Violence, Reconciliation and Reconstruction in Burundi, 18 Potchefstroom Electronic L. J. 847, 854–860 (2015). Alternatively, many serious offenses committed by non-state actors

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slaughter involving innocent civilians, to include the killing of thousands of Hutu after the 1965 coup attempt,17 during the 1972 carnage in which at least 200,000 Hutu were killed by the all-Tutsi army,18 during the bitter 1988 events in two northern communes that left 15,000 dead Hutu and compelled 50,000 refugees to flee to neighboring Rwanda,19 after the abortive 1991 uprising when thousands of Hutu were arrested and killed,20 and during the Hutu reprisal campaign against Tutsis after the October 1993 coup attempt.21 In fact, the October 1993 assassination of Hutu President Melchior Ndadaye, who won the first democratic election in Burundi since 1963, ignited a 12-year civil war that included arbitrary arrests, enforced disappearances, ethnic cleansing and widespread killings; some estimate that 300,000–500,000 Hutu died during that civil war.22 Rwanda has also experienced multiple spasms of wholesale slaughter, to include during and after the 1959 mass uprising by the Hutu that helped bring about an end to 400 years of Tutsi aristocratic rule,23 during the 1963–64 massacre of an estimated 10,000 Tutsis,24 in the atrocities in Kibilira (1990–93) and Bugesara (March 1992),25 during the 1994 and directed against a civilian population could also be classified as crimes against humanity under customary international law (the obligation not to permit such offenses is part of jus cogens, at least since the 1945–46 Nuremberg Tribunal, and is therefore a non-derogable rule of international law). In fact, crimes against humanity can be committed during peace or war. See generally Bartram S. Brown, ed., Research Handbook on International Criminal Law (Northampton, MA: Edward Elgar, 2011), 62–83. 17   Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 70–74. 18   Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 20–21. 19   Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 120–27. 20  Id. at 152. 21   Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 105 (claiming that at least 200,000 people were killed in Burundi). 22  Id. at 77. 23  Id. at 17–18 (claiming that at least 100,000 Tutsis were killed in Rwanda). 24   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 129. 25  Id. at 136–37. See also Gordon, Atrocity Speech Law, supra n.13, at 25 (describing how false media reporting about a Tutsi threat in the area led to the murder of innocent civilians by militias that had been trucked into the area). Alison Des Forges, the senior Rwanda expert at Human Rights Watch who wrote the definitive work on the 1994 genocide, described the massacres at Kibilira and Bugesara as part of the Hutu “rehearsals” for the 1994 genocide. The rehearsal sites were reportedly selected based upon their association with President Habyarimana and his supporters, and where the killers could be certain of their success. Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda 87–91 (1999). See also Dina Temple-Raston, Justice on the Grass: Three Rwandan Journalists, Their Trial for War Crimes and a Nation’s Quest for Redemption 27–31 (2005) (describing the Bugesara massacre as the first known use of radio in Rwanda to incite people to commit violence against their neighbors).

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holocaust in which at least 800,000 Tutsi were killed by Hutu extremists,26 and during Rwanda’s 1996–97 intervention in the Democratic Republic of the Congo (DRC) in which an estimated 200,000 Hutu refugees were killed by the Rwandan Patriotic Front (RPF) and its Banyamulenge (the Banyarwanda Tutsi who had earlier settled in South Kivu) allies.27 In fact, some have described 26  I d. at 303–304. There have also been allegations of a second, or “double,” genocide in that perhaps 30,000 or more Hutus were killed by the RPF in reprisal for the Tutsi genocide during the period July-August 1994. Id. at 323–26. In one prominent case, in April 1995, the RPF reportedly killed thousands of Hutu civilians at a camp for internally displaced persons (IDP) at Kibeho. Phil Clark, Rwanda’s Recovery: When Remembrance is Official Policy, 97 Foreign Aff. at 35 (Jan./Feb. 2018). Nonetheless, while RPF war crimes undoubtedly did occur, it is difficult to sustain the argument for a “double genocide” based upon a lack of genocidal intent (i.e., many Tutsi committed reprisals against suspected Hutu killers, an act of “self-help” justice), the isolated nature of many offenses, and the level of distortion in many Hutu claims. It may be more accurate to say that the RPF lacked effective control over some military and civilian elements in the chaotic situation at the closing days of the civil war. Colin M. Waugh, Paul Kagame and Rwanda: Power, Genocide and the Rwandan Patriotic Front 150–152 (2004). And, in the case of the Kibeho IDP camp, the Hutu genocidaires in the camp complicated what initially started out as a peaceful attempt to close the camp. Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda 188–194 (1998). See also Security Council, Report of the Secretary General on the United Nations Assistance Mission for Rwanda, U.N. Doc. S/1995/457 (June 4, 1995), paras. 7–16 (examining the tragedy at the Kibeho IDP camp and concluding that human rights abuses were committed by both the RPF—renamed as the Rwandan Patriotic Army after the civil war—and armed elements in the camps). 27  The perpetrators of the 1994 genocide, primarily members of the former Rwandan army and two Hutu Power militia groups that were known as the Interahamwe (“those who kill together”) and the impuzamugambi (“those with the same goal”), sought sanctuary in eastern Zaire (renamed as the DRC in May 1997), took control of the refugee camps, and used the area as an operational base to launch raids into Rwanda against the now Tutsi-dominated government in Kigale). Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 35–36. In late 1996, Burundi, Rwanda, and Uganda intervened in eastern Zaire to protect the Banyamulenge and to secure their borders against Hutu incursions. Many Hutu then returned to Rwanda, while others were pursued and killed by the RPF as they fled west. Id. at 57. See also Marie Beatrice Umutesi, Surviving the Slaughter: The Ordeal of a Rwandan Refugee in Zaire (2000) (offering a first-person account by Rwandan Hutu refugee of her 1994 flight from Rwanda to eastern Zaire; she describes life in the refugee camps and her harrowing escape from the RPF). See generally Gerard Prunier, Africa’s World War: Congo, the Rwandan Genocide and the Making of a Continental Catastrophe (2009) (providing an authoritative account of the aftermath of the 1994 genocide, to include Rwanda’s 1996 intervention in Zaire that toppled President Sese Seko Mobutu—who had backed the Rwandan Hutu Power leaders—from power). Eventually, the Congo-based Hutu genocidaires formed an armed group, the Democratic Forces for the Liberation of Rwanda (FDLR); this group has conducted widespread atrocities against civilians, including war

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the massacres before the start of the 1994 genocide as rehearsals for the “final solution.”28 Burundi, although deeply divided on political lines, has been dominated by the Tutsi—as well as a Tutsi-dominated army—since its independence on July 1, 1962. Initially, in November 1959, the Belgian government committed itself to a comprehensive reform of colonial government with communal councils, headed by a burgo-master at the local level, and with the councils serving as an electoral college when it came time to elect Members of the Conseil du Pays that would have legislative powers.29 The king (Mwami Mwambutsa) was to serve as constitutional monarch. However, on October 13, 1961, Prince Louis Rwagasore, the popular prime minister designate, was assassinated, an event that contributed to the polarizing ethnic tensions between the Hutu and the Tutsi.30 In part, many people no longer saw the monarchy as a means of resolving the tensions, but as part of the problem. In part, the on-going Hutu revolution—under “democratic majority rule”31—in Rwanda helped sharpen the edges of ethnic hatred in Burundi. In May 1965, Mwambutsa proceeded with legislative elections; the Hutu emerged with a majority of seats (23/33) and an expectation that the next prime minister would be a Hutu.32 Nonetheless, the king appointed someone else, someone considered to be the “king’s man.” On October 19, 1965, a group of Hutu army and gendarmerie officers attempted a coup, only to have the army turn against the conspirators and Hutu politicians.33 Mwambutsa fled to Zaire and Charles Ndizeye became king, but he lasted only until November 28, 1966, when the Tutsi-dominated army deposed him and proclaimed the First Republic under Colonel Michel Micombero (1965–76). Subsequently, Burundi experienced continued tension and dissent both between the Hutu and the Tutsi, as well as among the competing Tutsi elites; the Hutu were purged from government and the army. By early 1972, following a political trial involving seven Tutsi leaders, Burundi was gripped by a pervasive sense of fear.34 crimes and crimes against humanity, in the eastern DRC and Rwanda. BBC News, Will FDLR rebels ever leave Congo and return to Rwanda?, Feb. 11, 2014, http://www.bbc.com/ news/world-africa-26121995 (last visited Jan. 6, 2018). 28   Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, supra n.26, at 94. 29   Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 51. 30  Id. at 54. 31   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 80–81. 32   Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 70. 33  Id. at 70–74. 34  Id. at 87–89.

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In April–May 1972, Hutu elements in the Imbo plain unleashed a campaign of terror against the Tutsi, but only to see an even more appalling campaign of reprisals launched by the Tutsi against the Hutu that lasted until August.35 In overall terms, the Tutsi campaign resulted in 100–200,000 killed and caused an exodus of 150,000 refugees to neighboring countries.36 In fact, over the coming years, the refugee camps in Tanzania would come to serve as an operating base for the Hutu opposition. According to some sources, there were three main causes for this genocide: by the Tutsi to eliminate its real/imagined threat, to terrorize that real/imagined enemy, and to acquire the economic resources (e.g., cows, land, house, and bicycle) of the vanquished.37 In turn, this left a “maimed society, in which the only elites were the Tutsi elites.”38 On November 1, 1976, Lt. Col. Jean-Baptiste Bagaza seized power from Micombero and proclaimed the start of the Second Republic. While Bagaza claimed a need to restore national unity, he actually sought “to control rather than to integrate, to solidify and rationalize Tutsi hegemony rather than to mitigate its constraints.”39 But Bagaza’s rule was short-lived; on September 3, 1987, while he was attending a conference in Canada, Major Pierre Buyoya led a coup that proclaimed a Third Republic. Buyoya then sought to normalize church-state relations, remove restrictions on the freedom of the press, and release hundreds of Hutu political prisoners; generally, this raised Hutu hopes and Tutsi anxieties, leading to continued ethnic violence and a March 15, 1989, coup attempt by Tutsi hardliners.40 Finally, in June 1993, Buyoya called for national elections, but was surprised to see Melchoir Ndadaye—a moderate Hutu—defeat him and become Burundi’s first democratically elected president with 65 percent of the vote in a free and fair election.41 Worse, Ndadaye’s party (Frodebu) won 56/81 seats in the legislature and, on October 21, Ndadaye was assassinated by a group of Burundian soldiers.42 Ndadaye’s assassination infuriated the Hutu and emboldened the Tutsi, resulting in a new genocide that saw the massacre of an estimated 100,000 Hutu and the exodus of some 500,000 refugees to Tanzania, 35  Id. at 89–96. 36  Id. at 96–105. 37  Id. at 100–103. 38  Id. at 103. 39  Id. at 107. 40  Id. at 107. 41   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 199. 42   Lemarchand, Burundi: Ethnic Conflict and Genocide, supra n.1, at 178–181. Eventually, in May 1999, the Burundian Supreme Court sentenced five soldiers to death for their complicity in the president’s assassination. BBC News, Death for Burundi Assassins, May 14, 1999, http://news.bbc.co.uk/2/hi/africa/344364.stm (last visited Jan. 4, 2018).

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Rwanda and Zaire.43 In neighboring Rwanda, many Hutus were already harboring fears of the Tutsi and were disgruntled by the on-going political negotiations between the government and the RPF in Arusha; both Ndadaye’s assassination and the flight of refugees had a galvanizing effect on Hutus, with popular demonstrations and political violence.44 This genocide also initiated a long and bloody civil war in Burundi, with more than 300,000 dead, which lasted until August 2005 when Pierre Nkurunziza, a Hutu and former rebel leader, was eventually sworn in a president.45 Domitien Ndayizeye served as president from 2003–05 and initiated many reforms that helped bring about the end of the 12-year civil war. He signed a new law in January 2005 to create a new national army, consisting of both Tutsi forces and all but one Hutu rebel group (the National Forces of Liberation, FNL).46 In February, Burundian voters approved a new Constitution— with important power sharing provisions for ethnic groups and 30 percent representation by women in all government institutions—by referendum,47 and in July the main Hutu group, the National Council for the Defense of Democracy—Forces for the Defense of Democracy (FDD), won the elections for both the National Assembly and the Senate. Finally, in August 2005, FDD 43   Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 77. Some Rwandan Hutu extremists argued that President’s Ndayizeye’s assassination by Tutsi soldiers was evidence that power-sharing between the Hutu and Tutsi—like that contemplated by the later Arusha compromise agreement contemplated by President Habyarimana—would not work, helping to promote the Hutu Power movement. Temple-Raston, Justice on the Grass, supra n.25, at 61–62. 44   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 200. 45   Mwakikagile, Burundi: The Hutu and The Tutsi, supra n.4, at 77. Eventually, Burundi established a national Truth and Reconciliation Commission (TRC)—by statute—to address human rights violations committed in that country during the period 1962 to 2008; in other words, the TRC has jurisdiction to address all human rights violations from Burundian independence through the date of the latest ceasefire agreement. This commission has made limited progress with its investigations but has been handicapped by a lack of commissioners. Bella Lucia Nininahazwe, Burundi: Truth and Reconciliation Commission Faces Several Problems, AllAfrica, Dec. 13, 2017, http:// allafrica.com/stories/201712130408.html (last visited Jan. 6, 2018). 46   Country Report, Freedom House, Burundi (2006), https://freedomhouse.org/report/ freedom-world/2006/burundi (last visited Jan. 11, 2018). Eventually, in early 2009, the FNL renounced its use of arms, registered as a political party, and began integrating some of its members into the armed forces. International Crisis Group, Burundi: To Integrate the FNL Successfully, July 30, 2009, https://www.crisisgroup.org/africa/central-africa/burundi/ burundi-integrate-fnl-successfully (last visited Jan. 11, 2018). 47  I RIN News, Burundi: Nation Clears Constitutional Referendum, looks ahead to Presidential Poll, Mar. 1, 2005, https://reliefweb.int/report/burundi/burundi-nation-clears -constitutional-referendum-looks-ahead-presidential-poll (last visited Jan. 11, 2018).

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leader Pierre Nkurunziza was elected as president for a five-year term by the two Hutu-dominated houses of parliament,48 bringing about an effective end to the long civil war; Nkurunziza is now serving in his controversial third term in office as president.49 Unlike Burundi, Rwanda has been dominated by the Hutu from 1959 until July 1994. Initially, the Hutu launched a 1959 “democratic revolution,” ending the monarchy—which had been dominated by a Tutsi aristocracy—and resulting in a large-scale exodus of Tutsi refugees to neighboring countries.50 Rwanda then had a Hutu-led government from July 1962 to August 1994, with Gregoire Kayibanda as the first president of the First Republic (1961–1973). He purged many Tutsi from higher office in government, and tightened the enforcement of ethnic quotas in academia, the professions and local government.51 Kayibanda was, in turn, deposed by Major General Juvenal Habyarimana in July 1973 in bloodless coup. Habyarimana established a one-party authoritarian state, continued the past-practice of requiring national identity cards that specified a person’s ethnicity (ubwoko), refused to allow the return of Tutsi refugees, and, after 1990, deepened the military cooperation between France and the Rwandan army (the Forces Armees Rwandaises, FAR). Despite some level of ethnic tensions and periodic human rights abuses, Rwanda remained largely at peace until the October 1990 Tutsi invasion led by 48  I RIN News, Burundi: Parliament elects Nkurunziza Nation’s President, Aug. 19, 2005, https:// reliefweb.int/report/burundi/burundi-parliament-elects-nkurunziza-nations -president (last visited Jan. 11, 2018). 49  B BC News, Burundi Elections: Pierre Nkurunziza wins Third Term, July 24, 2015, http://www .bbc.com/news/world-africa-33658796 (last visited Jan. 11, 2018). The 2005 Constitution, art. 95, provides that the president “is elected by universal direct suffrage for a term of five years renewable one time.” In fact, many in the international community, to include the U.N., “condemned the election as not credible due to the harassment and intimidation of the opposition, rights activists, journalists and voters”; the election plunged the country into political violence. Jessica Hatcher, Burundi’s President Pierre Nkurunziza wins third term in disputed election, The Guardian, July 24, 2015, https://www.theguardian.com/ world/2015/jul/24/burundi-pierre-nkurunziza-wins-third-term-disputed-election (last visited Jan. 24, 2018). However, the Constitutional Court of Burundi did decide that Nkurunziza did have the right to stand as a presidential candidate for a third term in office, a decision that sparked the May 2015 coup attempt. Ndimurwimo, Rethinking Violence, Reconciliation and Reconstruction in Burundi, supra n.16, at 848–849. 50   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 61–64. In fact, the largest group of Tutsis fled to Burundi and it was from bases there that they mounted terrorist raids back into Rwanda; in response, Rwanda’s Hutu government conducted harsh reprisals against civilians. The Tutsi guerrillas became known as inyenzi (cockroaches) because they operated at night. Waugh, Paul Kagame and Rwanda, supra n.26, at 27–28. 51   Waugh, Paul Kagame and Rwanda, supra n.26, at 15.

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Uganda-based refugees (the RPF), many of whom had been serving soldiers, to include senior officers, in Yoweri Museveni’s National Resistance Movement/ Army (NRM/NRA) in its rebellion against the Ugandan government.52 The Rwandan civil war staggered on, with organized political violence, periodic terrorist (e.g., grenade) attacks, low-intensity guerrilla war and peace talks, on until April 7, 1994, when a presidential aircraft carrying President Habyarimana and Burundian president Cyprien Ntaryamira was shot down on its final approach to Kigale airport. In fact, both leaders had been returning from a regional meeting in Dar es Salaam where the topic of discussion had been the situation in Burundi and Rwanda; several regional leaders there had placed considerable political pressure on Habyarimana to implement the stalled Arusha compromise agreements that envisioned power-sharing with the RPF and the moderate Hutu opposition parties.53 This assassination, likely orchestrated by Hutu Power hard-liners opposed to any compromise agreement with the RPF, triggered a 100-day genocide against the Tutsi.54 This genocide had a catastrophic impact on Rwanda. Some estimate that over 800,000 people, largely Tutsi, were killed in a 100-day spree of popular rampage, all in a country that had an estimated pre-genocide population of 7–8 million persons.55 Moreover, there is clear evidence that this genocide was planned and executed by government leaders, with participation at all levels of society, often with neighbor killing, mutilating, raping and/or robbing neighbor.56 Finally, after a last push in July, the RPF seized power in Kigale, 52  I d. at 67–74. The ideology of Museveni’s NRM—an inclusive national political community, but not a political party—provided political-military inspiration for Kagame and other Tutsi leaders in their own subsequent fight against the Hutu government in Kigale. Id. at 31. 53  Many persons dispute whether Hutu hardliners, opposed to any compromise powersharing agreement with the Tutsi (i.e., the proposed Broad Based Transitional Government), or the RPF was responsible for this attack that initiated Rwanda’s 100-day genocide. Id. at 213–229. 54  One interesting side-light: While the Hutu Power supporters (genocidaires) promoted actions by radio against the Tutsi in the immediate hours after the president’s assassination, the situation was different in neighboring Burundi. There, the Army and the UN broadcast calls for calm and the country did not explode. Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, supra n.26, at 113–14. 55  Mark A. Drumbl, Law and Atrocity: Settling Accounts in Rwanda, 31 Ohio N. U. L. Rev. 41, 42–43 (2005) (reviewing the history of the genocide and explaining how post-genocide trials occurred at three different levels). 56  Hollie Nyseth Brehm, et al., Genocide, Justice, and Rwanda’s Gacaca Courts, 30 J. Cont. Crim. Just. 334 (2014). See also Paul J. Magnarella, Justice in Africa: Rwanda’s Genocide, Its Courts and the UN Criminal Tribunal 19–22 (2000).

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leaving a chaotic situation at local levels that provided opportunities for returning Tutsi, often including Tutsi extremists returning from refugee camps in Burundi, Tanzania, Uganda and Zaire, to commit reprisal killings against suspected Hutu genocidaires and to engage in “self-help” actions in seizing/ reclaiming property from the Hutu.57 Rwanda has since been dominated by the Tutsi, initially under a transitional government58 under Hutu President Pasteur Bizimungu (in office from July 1994 until March 2000, with Paul Kagame as Vice President and Minister of Defense), and then under Kagame as president since 2000.59 At least in form, Bizimungu and Kagame initially attempted to create a broad-based government with a Hutu majority of cabinet ministers (16/22) and the incorporation of thousands of officers and soldiers from the old Rwandan army into the RPF.60 The new government also faced seemingly insurmountable problems with a completely destroyed national infrastructure, significant refugee flows involving both the Tutsi (in-migration)61 and Hutu (out-migration),62 a lack 57   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 301. 58  The transitional government was initially organized based largely on the 1993 Arusha Accords—that modified the 1991 Constitution—except for the cabinet positions that had been originally allocated to the MRDN (the Hutu extremist party). In 1999 the five-year transitional government came to an end and a new interim Constitution provided for a four-year Government of National Unity. Waugh, Paul Kagame and Rwanda, supra n.26, at 152–53. Ultimately, in May 2003, Rwandan voters approved a new Constitution in a national referendum; the new Constitution established a presidential republic with a bicameral parliament. The Constitution provided that the president could serve only two seven-year terms, required power-sharing between political organizations, and banned certain forms of racial discrimination. For example, article 37 provides that the “[p]ropagation of ethnic, regional, racial discrimination or any other form of division is punished by law,” and article 57 prohibits political organizations “from basing themselves on race, ethnic group, tribe, lineage, region, sex, religion or any other division which may lead to discrimination.” Republic of Rwanda, The Constitution of the Republic of Rwanda (2003), with amendments through 2015. See generally Amnesty International, Setting The Scene for Elections: Two Decades of Silencing Dissent in Rwanda (2017). 59  Kagame is a Rwandan Tutsi who had been living as a refugee in Uganda—with his family—since the 1959 Hutu “democratic revolution” that sent over 300,000 Tutsis into exile in neighboring countries where they often faced discrimination and persecution. Waugh, Paul Kagame and Rwanda, supra n.26, at 9–10. See also BBC News, Rwanda Election: President Paul Kagame wins by Landslide, Aug. 5. 2017, http://www.bbc.com/ news/world-africa-40822530 (last visited Jan. 7, 2018). 60   Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, supra n.26, at 222. 61   Prunier, The Rwanda Crisis: History of a Genocide, supra n.12, at 364 (estimating 750,000 returning Tutsis from the worldwide diaspora). 62  Id. at 312 (citing a mass exodus of nearly 2 million persons in July/August 1994). This Hutu exodus was typically organized and directed by the Hutu political and military leaders who compelled people to leave, often in blind flight, based upon the coming Tutsi “terror.”

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of government at the national and local levels, a devastated economy with very broad reconstruction needs, a persistent security threat arising from terrorist raids by Hutu armed groups operating from refugee camps in Zaire,63 and an eviscerated criminal justice system that had overwhelming problems in searching for, incarcerating and imprisoning an estimated one million suspects.64 In one early move, the new government abolished the ethnic identity cards; one could ask if this made a difference since people knew who their neighbors were.65 Rwanda, under its new Tutsi-dominated leadership, fought two subsequent wars in Zaire/Congo. The first war started in 1996 and was based largely on the need to eliminate the terrorist threat posed by the genocidaires who were using the refugee camps—supported by international humanitarian aid and the Mobutu government—in eastern Zaire as bases to reorganize, recruit, and rearm for attacks against Tutsis. Here, Rwanda sided with the rebel leader Laurent Desire Kabila to oust Mobutu from power. Rwanda had several objec­ tives in this war. Rwanda planned to protect the Tutsi (the Banyamulenge) population in both North and South Kivu, to include empowering them to fight, from the predatory armed attacks by the Hutu Power militias; it sought to dismantle the camps, facilitating the return of refugees to Rwanda; it sought to destroy the ex-FAR and militias; and it intended to change the overall situation in Zaire.66 In part, this war was successful in reducing the direct threat to both Rwanda and the Zairian Tutsis, as well as bringing about the closure of the camps and the return of some 700,000 refugees to Rwanda.67 The second war, fought by Rwanda and Uganda against the DRC from 1998– 2001, differed from the first in several ways.68 First, Kabila—newly installed as president of the renamed country—began siding with anti-Rwandan Thus, the Hutu killers terrified people into following them into exile. Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, supra n.26, at 161–63. This exodus also resulted in the one of the largest and most rapid humanitarian aid operations in history. Id. at 165. 63  The refugee camps in eastern Zaire, while under the nominal supervision of the UN High Commissioner for Refugees, were subject to tight day-to-day political and military control by the Interahamwe. Id. at 312–316 (describing the militarized control over the refugee camps by the former extremist authorities as “total”). 64  Brehm, Genocide, Justice, and Rwanda’s Gacaca Courts, supra n.55, at 334–335. 65   Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our Families, supra n.26, at 223. 66  Id. at 296. 67  Id. at 300. 68   Waugh, Paul Kagame and Rwanda, supra n.26, at 129–133. See also Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, 227/99, 20th ACHPR AAR Annex IV (2005–2006) (finding illegal intervention in violation of Congolese sovereignty, widespread human rights violations, and illegal extraction of natural resources).

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groups and was supporting the Hutu Power groups that were forcing the Tutsi populations out of North Kivu in an ethnic cleansing campaign. But, unlike the first war, it also became apparent that Rwanda and Uganda were motivated by the spoils of war (i.e., both were extracting mineral and agricultural resources for profit). Third, the scale of the humanitarian catastrophe was much greater in this war than the first.69 Eventually, the 2002 Pretoria Accord provided for the complete withdrawal of Rwandan forces from the DRC in exchange for an international commitment to disarm the Interahamwe and the ex-FAR elements.70 But, this did not eliminate the security threat to Rwanda arising from Hutu extremist groups based in the eastern DRC.71 Rwanda has reportedly made tremendous progress in overcoming the legacy of ethnic hatred; Rwanda has pursued accountability and justice on three levels. First, the government has prosecuted many of the cases through its rejuvenated judiciary, although many of the early trials were subject to international criticism based upon on allegations involving a lack of judicial independence and a lack of compliance with international fair trial standards. But, according to Human Rights Watch, many of the trials “in more recent years, have shown greater respect for due process, partly thanks to extensive legal and institutional reforms and enhanced training and professionalization of judicial staff.”72 However, by 1998 Rwanda recognized that it had an enormous 69  Waugh, Paul Kagame and Rwanda, supra n.26, at 137–139. See also The African Commission on Human and Peoples’ Rights, Democratic Republic of the Congo v. Burundi, Rwanda and Uganda, 227/99, 20th ACHPR AAR Annex IV (2005–2006) (disapproving of the occupation of Congolese territory, and finding both widespread human rights violations the illegal extraction of natural resources). 70  Ambassador Dumisani S. Kumalo (Permanent Representative of South Africa to the United Nations), Letter to the U.N. Security Council (enclosing Peace Agreement between the Government of the Democratic Republic of the Congo and the Republic of Rwanda), U.N. Doc. S/2002/914 (Aug. 9, 2002). 71   A P, Rwanda Warns of Imminent Attack in Congo, Nov. 24, 2004, http://www.nbcnews.com/ id/6576431/ns/world_news/t/rwanda-warns-imminent-attack-congo/ (last visited Jan. 10, 2018). 72  Human Rights Watch, Rwanda: Justice after Genocide—20 Years On, Mar. 28, 2014, https:// hrw.org/print/253185 (last visited Dec. 15, 2017). Rwanda did, however, experience problems in early years after the genocide with many countries which were unwilling to extradite genocide suspects because of shortcomings in its judicial system and its use of the death penalty. BBC News, Rwanda Scraps the Death Penalty, June 8, 2007, http:// news.bbc.co.uk/2/hi/africa/6735435.stm (last visited Jan. 10, 2018). That problem has largely been resolved and many countries—with some notable exceptions—have been extraditing genocide suspects to Rwanda over the recent years. See, example, James Karuhanga, French Court turns down another Extradition Request, New Times (Kigale), Apr. 11, 2014, http://www.newtimes.co.rw/section/read/74519/ (last visited Jan. 10, 2018),

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judicial backlog: only 1,292 persons had been tried and over 130,000 people were awaiting trial.73 Clearly, something had to be done. Next, in an effort to relieve this backlog, the government resurrected gacaca (lawn) courts to try low-level perpetrators at the local level.74 The gacaca courts are a traditional system that involve a trial and defense, generally on minor offenses, but without the use of prosecutors or defense attorneys. The accused stand in the open before neighbors, with both the accused and all others having the right to speak on the charges. This system offers several important advantages: First, in a country such as Rwanda with its large overwhelming backlog of cases, it offered a means of speedy adjudication and reconciliation consistent long-standing cultural norms. Second, with trials conducted at a local level, it offered greater participation by the persons most interested in the case, thereby enhancing the quality and public acceptance of the decision itself. Third, it can be very cost-effective in a country that lacks an adequate judiciary or defense bar. Fourth, truth-telling by the accused can result in a reduced sentence. According to Phil Clark, who has conducted extensive fieldwork and interviews in Rwanda over the past 15 years, the “gacaca courts [have] provided a release valve for people’s anger and resentment, and the reduction in socioeconomic disparities between the ethnic groups has taken the sting out of historical antagonisms.”75 Others, however, see the gacaca courts as having a mixed record; Human Rights Watch, for example, believes that many

and Rwanda: What Next After British Court Blocks Genocide Extraditions?, New Times (Kigale), Aug. 7, 2018, http://allafrica.com/stories/201708070321.html (last visited Jan. 10, 2018). 73  Human Rights Watch, Rwanda: Justice after Genocide—20 Years On, supra n.71. See generally Temple-Raston, Justice on the Grass, supra n.25 (recounting several representative cases in which persons were arrested for genocide crimes based upon flimsy accusations and then languished—without any meaningful investigation—for periods as long as seven years in a Rwandan prison before release/hearing). In fact, Temple-Raston argues that that the subsequent gacaca courts were “a last-ditch effort to empty the nation’s prisons without declaring a general amnesty.” Id. at 133. 74  The gacaca are a traditional means of gathering the local elders and selected men from a village to hear and decide minor disputes. Gerhard Werle, et al., Africa and the International Criminal Court (2014), 94. The courts were built on the premise the punishment and reconciliation were complementary objectives. Werle concludes that “Gacaca courts were a unique Rwandan solution to a unique Rwandan problem.” Id. at 98. 75  Clark, Rwanda’s Recovery: When Remembrance is Official Policy, supra n.25, at 40.

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gacaca hearings resulted in unfair trials.76 In fact, some argue that innocent persons—some of whom had already been held for an extended period—were put on the horns of a dilemma: If a person argued that he was innocent, he could be seen as unrepentant by the judges and be returned to prison for a lengthy sentence. Thus, one could “confess” and hope for an early dismissal.77 Finally, the UN Security Council, based upon a request from the Government of Rwanda and acting under its Chapter VII authority, established an International Criminal Tribunal with primacy over national courts.78 The UN Security Council created this tribunal with subject matter jurisdiction for “serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighboring states, between 1 January 1994 and 31 December 1994….”79 The ICTR was never expected to try more than a limited number of suspects; it was designed to prosecute those cases involving the persons who played a leading role and who had committed the most serious crimes during the genocide. The ICTR has achieved commendable results with annual reporting on its progress,80 and it closed its doors on December 31, 2015.81 But, while the ICTR prosecuted several prominent Hutu leaders and made an important contribution to international criminal law, such as the 76  Human Rights Watch, Rwanda: Justice after Genocide—20 Years On, supra n.71. See Stacey M. Mitchell, Restorative Justice, RPF Rule, and the Success of Gacaca, in Trials and Tribulations of International Prosecution 255–268 (Henry F. Carey & Stacy N. Mitchell, eds., 2013). See also Prisca Uwigabye, Gacaca and the Treatment of Sexual Offenders, in Trials and Tribulations of International Prosecution (269–283 (Henry F. Carey & Stacey M. Mitchell, eds., 2013). 77   Temple-Raston, Justice on the Grass, supra n.25, at 137–38. 78   S .C. Res. 955 (establishing the International Criminal Tribunal for Rwanda), U.N. Doc. S/RES/955 (Nov. 1994). 79  Id. Annex (Statute of the International Tribunal for Rwanda), art. 1. Some Rwandans have criticized the limited temporal jurisdiction, arguing that the ICTR should have examined a broader span of time to include the period 1990–94. Drumbl, Law and Atrocity, supra n.55, at 46 n.22. See also Nigel Eltringham, A Legacy Deferred?: The International Criminal Tribunal for Rwanda at 20 Years, E-Int’l Rel., Apr. 29, 2014, http://www.e-ir .info/2014/04/29/a-legacy-deferred-the-international-criminal-tribunal-for-rwanda-at -20-years/ (last visited Jan.. 4, 2018). 80   I CTR, Report of the International Criminal Tribunal for Rwanda, U.N. Doc. A/69/206-S/2014/546. 81   I CTR, Report on the Completion Strategy of the International Criminal Tribunal for Rwanda, U.N. Doc. S/2015/340. See S.C. Res. 1966 (establishing the Residual Mechanism for Criminal Tribunals), U.N. Doc. S/RES/1966 (Dec. 22, 2010). See also President of the ICTR, Letter to the President of the UNSC (transmitting the final report of the ICTR and examining its cumulative work over a 21-year period), U.N. Doc. S/2015/884 (Nov. 17, 2015).

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case involving Jean-Paul Akayesu, who was convicted of “direct and public incitement to commit genocide” and was the first person ever prosecuted for rape as genocide,82 the ICTR also failed to prosecute a single RPF case, leaving a sentiment that the tribunal provided only a victor’s justice. In fact, the ICTR could have prosecuted cases involving members of the RPF—its mandate was broad enough to cover offenses by both sides within its temporal and subject matter jurisdiction, but this was a contentious point between the Rwandan government and the ICTR prosecutor.83 Both Burundi and Rwanda have recently adopted new constitutions that address the broad issues associated with minority rights, providing a hopeful basis for ameliorating the Hutu-Tutsi conflict.84 Burundi’s 2005 Constitution guarantees representation for ethnic minorities, moving towards a sharing of power between competing groups.85 The 2005 Constitution recognizes the following principles: – The establishment and implementation of a democratic governance system; – The inclusion of minority political parties in the general system of good governance; – The protection and inclusion of ethnic groups, and cultural and religious minorities in the general system of good governance; – The restructuring of the national security and justice system to guarantee security to all Burundians, including ethnic minorities.86 82   I CTR, Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-A (June 1, 2001). The 1948 Genocide Convention, art. III, provides that the following acts shall be punishable: “(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.” See also Gordon, Atrocity Speech Law, supra n.13, at 136–166 (examining how the Akayesu case laid the legal foundations for subsequent incitement cases). See also Gordon, Atrocity Speech Law, supra n.13, at 370–371 (explaining how the 1948 Genocide Convention, not the Nuremberg Tribunal, provided the “blueprint for future formulations of incitement in the major international criminal law instruments, including the ad hoc tribunal statutes and the statute for the International Criminal Court.”). 83  Human Rights Watch, Rwanda: Justice after Genocide—20 Years On, supra n.72. 84  Jeremie Gilbert, Constitutionalism, Ethnicity and Minority Rights in Africa: A Legal Appraisal from the Great Lakes Region, 11 Int’l J. of Const. Law 414–437 (2013) (explaining that Burundi has taken a different approach from Rwanda and is moving towards power sharing between the Hutus and the Tutsis). 85   Post-Trans. Inter. Const. Rep. of Burundi, promulgated by Law No. 1/018 of Oct. 20, 2004, and approved by vote of the Burundian people by referendum of Feb. 28, 2005 (entered into force on Mar. 18, 2005). 86  Id. preamble.

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In general terms, the 2005 Burundian Constitution provides an important step forward for the Burundian people by providing for the fundamental rights and duties of the individual and the citizen,87 to include respect for human dignity, the right to life, and the right to freedom from torture, cruel, inhumane, or degrading torture or punishment.88 While the Constitution guarantees the “liberty of expression”89 and the “liberty of reunion and association,”90 it also prohibits political parties from promoting “violence, exclusion, or hate in any of their forms, notably based on ethnic, regional, religious or gender affiliation.”91 Finally, the 2005 Constitution recognizes certain individual civil rights that are applicable to the judiciary, to include the right to equal protection before the law;92 the right to a fair trial;93 a right against the arbitrary deprivation of liberty, to include the right to legal defense;94 and a presumption of innocence;95 but not an explicit right to habeas corpus. Article 50 places explicit limitations on extradition: “No Burundi citizen may be extradited abroad unless he or she is pursued by an international criminal jurisdiction for crimes of genocide, war or other crimes against humanity.”96 The 2005 Constitution also provides for a presidential declaration of a “state of exception” (i.e., a state of emergency) when “the institutions of the Republic, the independence of the nation, the integrity of the territory or the execution of its international engagements are threatened in a grave and immediate manner and the regular functioning of the public powers is interrupted….”97 However, the Constitution also places important limitations on his ability to do 87  Burundi also has an Independent National Commission on Human Rights (CNIDH), created by a 2011 statute, that is authorized to “receive complaints and investigate human rights abuses; undertake regular, announced or unannounced visits to all detention facilities; prevent torture and other cruel, inhuman or degrading treatment; refer cases of human rights violations to the Public Prosecutor; provide or facilitate the provision of legal aid to victims; [and] propose measures likely to promote the protection of human rights.” CNIDH Website, http://accessfacility.org/independent-national-commission -human-rights-burundi (last visited Jan. 18, 2018). 88   Post-Trans. Inter. Const. Rep. of Burundi, supra n.85, art. 25. 89  Id. art. 31. 90  Id. art. 32. 91  Id. art. 78. 92  Id. art. 22. 93  Id. art. 38. 94  Id. art. 39. 95  Id. art. 40. 96  Id. art. 50. 97  Id. art. 115. See also Human Rights Committee (ICCPR), General Comment No. 29 (Article 4: Derogations during a State of Emergency), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).

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so, to include an explicit provision barring him from dissolving the parliament during the exercise of this power.98 The 2005 Constitution explicitly embraces power sharing between the Hutu and the Tutsi groups. Article 124 requires that the two Vice-Presidents come from “different ethnic groups and political parties.”99 Article 129 provides that the “Government is open to all the ethnic compositions. Of its ministers and vice-ministers, there must be at most 60% from the Hutu tribe and at most 40% from the Tutsi group. It is assured to be at least 30% female ministers and vice-ministers.”100 Article 130 requires that the “President of the Republic, after consultation with the two Vice-Presidents of the Republic, makes sure that the Minister in charge of National Defense is not from the same ethnic group as the Minister responsible for the National Police.”101 And, Article 164 mandates that the “National Assembly is composed of at least one hundred deputies at the rate of 60% Hutu and 40% Tutsi, with a minimum of 30% of women, elected by direct universal suffrage for a mandate of five years and three deputies from the Twa co-opted ethnicity conforming to the electoral code.”102 The 2005 Constitution provides for an independent judiciary103 consisting of a Supreme Court, Courts of Appeal, Tribunals of the First Instance, a Constitutional Court of seven members,104 and other specialized courts such military tribunals.105 The President, as the head of state, is responsible for the independence of the Magistracy and is assisted in this effort by the Superior Council of the Magistracy.106 The Superior Council is responsible for the proper administration of justice, to include nomination of Magistrates, subject to Senate confirmation, and serves as the highest disciplinary body for the Magistracy. The Superior Council has explicit authority over three areas of 98   Post-Trans. Inter. Const. Rep. of Burundi, supra n.85, art. 115, cl. 5. 99  Id. art. 124. 100  Id. art. 129. 101  Id. art. 130. 102  Id. art. 164. 103  Id. art. 209 (providing that the “judicial power is impartial and independent of legislative or executive power. In the exercise of its functions, the judge may not submit to any authority other than the Constitution and the law.”) 104   Under art. 228, the Constitutional Court has subject matter jurisdiction over the constitutionality of laws, constitutional interpretations, and issues involving presidential elections. 105  Under art. 261, the Burundian military courts have limited jurisdiction: “A civilian may not be subjected to the code of military justice nor judged by a military jurisdiction.” See also Law No. 1/019 of Dec. 31, 2004, Bearing Creation, Organization, Missions, Composition and Functioning of the National Defense Force. 106  Id. cl. 3. Under art. 217, the Superior Council must be balanced “ethnically, regionally, and by gender.”

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legal policy: “The Superior Council of the Magistracy assists the President of the Republic and the Government in: 1. The elaboration of policy on the matter of justice; 2. The following of the situation of the country in the judicial and human rights domain; 3. The elaboration of the strategies against impunity.”107 The High Court of Justice is composed of the combined membership of the Supreme Court and the Constitutional Court; the High Court has subject matter jurisdiction to hear cases against the President for high treason, and cases against the President of the National Assembly, the President of the Senate and the Vice-Presidents of the Republic for crimes and misdemeanors.108 Rwanda has taken a stronger approach in its 2003 Constitution with its rejection of ethnicity by banning its mention in political and legal matters.109 Initially, the preamble to the Rwandan Constitution explicitly recognizes Rwanda as one country, “having a common language, a common culture and a long shared history which must enable us to have a common vision of our destiny.”110 The preamble then recognizes the genocide committed against the Tutsi, and the preamble recognizes four pillars of development: COMMITTED to building a State governed by the rule of law, based on the respect for human rights, freedom and on the principle of equality of all Rwandans before the law as well as equality between men and women; COMMITTED further to building a State based on consensual and plural­istic democracy founded on power sharing, national unity and recon­ ciliation, good governance, development, social justice, tolerance and resolution of problems through dialogue; COMMITTED to preventing and punishing the crime of genocide, fighting genocide negationism and revisionism, eradicating genocide ideology and all its manifestations, divisionism and discrimination based on ethnicity, region or any other ground; COMMITTED to upholding our values based on family, morality and patriotism, and ensuring that all State organs serve our common interest;111

107  Id. art. 213. 108  Id. art. 234. 109   C onst. Rep. of Rwanda (2003), with amendments through 2015. 110  Id. preamble, cl. 2. 111  Id. preamble, cl. 5–8.

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In general terms, this preamble sets a strong basis for national unity and reconciliation. Like the 2005 Burundian Constitution, the 2003 Rwandan Constitution guarantees a range of civil liberties, to include freedoms of the press,112 expression,113 association114 and assembly,115 but with a prohibition against the “[p]ropagation of ethnic, regional, racial discrimination or any other form of division….”116 Article 29 recognizes that everyone has the right to due process of law, to include the right to be informed of charges, the right to legal representation, a presumption of innocence, and a prohibition against ex post facto laws. Article 29 also provides that genocide, crimes against humanity and war crimes are not subject to a statute of limitations, and that extradition is authorized by law or international agreement. The 2003 Rwandan Constitution also provides for a presidential declaration of an emergency and places important limitations on his ability to do so.117 Chapter VI recognizes political 112  113  114  115  116 

I d. art. 38. Id. Id. art. 39. Id. art. 40. Id. art. 37, cl. 2. The ICCPR recognizes a structural tension between the freedom of speech and the need to protect against hate speech. Thus, the ICCPR permits a State Party to impose limitations on the freedom of expression. Article 19(3) provides that the right may “be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” And, Article 20 provides that: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” See also The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), art. 4, obligating State Parties to    “condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention….”   Burundi ratified the ICERD on Oct. 27, 1977, and Rwanda acceded to it on Apr. 16, 1975. UN Treaty Collection, https://treaties.un.org/pages/UNTSOnline.aspx?id=1 (last visited Jan. 28, 2018). 117   C onst. Rep. of Rwanda (2003), articles 136–138. For example, art. 136 provides: “A declaration of a state of siege or a state of emergency must be clearly justified, specify the part of national territory to which it applies and its consequences, indicate the rights, freedoms and guarantees provided by law that are suspended and the duration of the state of siege or state of emergency which may not exceed a period of fifteen (15)

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parties, but imposes certain limitations and allows certain measures for holding a party accountable for constitutional violations. Thus, “the Constitution supports the official policy of the total eradication of anything having to do with ethnic identification and the maturation of unity.”118 The 2003 Rwandan Constitution recognizes a hierarchy of laws: the Constitution, organic law, international treaties and agreement, ordinary law, and orders.119 The Constitution provides for an independent judiciary.120 The Rwandan judicial system operates under five basic principles: The judicial system is governed by the following principles: 1) justice is rendered in the name of the people and nobody may be a judge in his or her own cause; 2)  Court proceedings are conducted in public unless the Court determines that proceedings be held in camera in circumstances provided for by law; 3) every judgment must indicate its basis, be written in its entirety, and delivered in public together with the grounds and the decision taken; 4) Court rulings are binding on all parties concerned, be they public authorities or individuals. They cannot be challenged except through procedures determined by law; and 5) in exercising their judicial functions, judges at all times do it in accordance with the law and are independent from any power or authority.121 Rwanda has both ordinary courts (i.e., a Supreme Court with the power to make “authentic interpretation of law,” the High Court, Intermediate Courts and Primary Courts), and also specialized courts such as military courts.122 The 2005 Constitution also creates the position of Ombudsman,123 with the days.” This language is entirely consistent with the 1966 ICCPR. See also Human Rights Committee (ICCPR), General Comment No. 29 (Article 4: Derogations during a State of Emergency), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001). The President also has a limited power, under art. 132, to “dissolve the Chamber of Deputies due to serious matters of national concern.” 118  Gilbert, Constitutionalism, Ethnicity and Minority Rights in Africa, supra n.84, at 419. 119   C onst. Rep. of Rwanda (2003), art. 95. 120  Id. art. 149. 121  Id. art. 151. 122  Id. art. 152. 123  Id. art. 139 (2). Under art. 79, Organic Law of June 2012, on the Organization, Functioning and Jurisdiction of the Supreme Court, No. 03/2012/OL of

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discretionary authority to petition the Supreme Court on behalf of individuals. Judges of the Supreme Court, the High Court, and the Commercial Court can removed by Parliament,124 while military judges can be removed only under military law. The 2005 Constitution also establishes several important national commissions, to include a National Commission for Human Rights (NCHR), the National Unity and Reconciliation Commission, and the National Commission for the Fight against Genocide.125 In certain respects, Rwanda is a paradox for Western observers. On one hand, Rwandan law takes a strong stand against ethnic divisionism (i.e., certain activities involving the promotion of an ethnic group). Rwandan law includes important restrictions on political speech, peaceful assembly, and the freedom of association (e.g., the ability to organize political parties). Thus, Rwandan law restricts civil liberties in ways that would be unacceptable in many western democracies. On the other hand, many Rwandans see such restrictions as a necessary means of providing political stability and ensuring security against extremist groups. Rwanda has, therefore, an exceptional history that compels a fresh approach to the balance between civil liberties and national security; the Rwandan experience should be judged based upon its own merits, rather than the preconceived notions of outside observers. 5.2

Burundian Counterterrorism Law and Practice

Burundi has experienced recurring bouts of significant ethnic violence, offering ample evidence for a power-sharing relationship between the Hutu and the Tutsi (i.e., bringing about an end to the politics of exclusion), the fair and impartial investigation and trial of all hate crimes/atrocities, and the elimination of restrictions on political speech and the freedom of the press. Also, while less widespread, members of the Twa ethnic group (forming June 13, 2012, the Ombudsman “shall be the competent organ to petition the Supreme Court over application for review of a final decision due to injustice.” 124  Id. art. 157. 125  Id. art. 139. The National Commission on Human Rights is tasked by statute to promote and protect Human Rights and to receive and investigate allegations involving human rights violations; the commission has a range of investigatory authorities, to include having judicial police powers and the right to visit detention facilities. Law Determining Missions, Organisation and Functioning of the National Commission for Human Rights, No. 19/2013 of March 25, 2003. See also NCHR, Annual Activity Report: July 2015-June 2016 (examining the human rights situation in Rwanda, to include the activities of the commission, its recommendations and its planned activities for 2016– 2017), available at: http://www.cndp.org.rw/index.php?id=269 (last visited Jan. 19, 2018).

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less than one percent of the population) and Albinos have faced ill-treatment.126 Burundian statutory law criminalizes terrorism, as well as an important range of acts that either constitute or facilitate acts of terrorism, but lacks the full range of terrorism offenses that have been proscribed in other EAC Partner States. Moreover, Burundian criminal law provides for extraterritorial jurisdiction, and also includes domesticated offenses under the 1949 Geneva Conventions, including proscriptions against genocide, crimes against humanity, torture, and war crimes. In addition, the 2009 Burundian Penal Code provides that state agents who violate the rights of citizens may be punished by imprisonment or fine.127 Burundi has experienced several major national security threats over the past 15 years and this has been largely as a result of non-state domestic groups. First, the Burundian Armed Forces have experienced a period of great change over the past 15 years, from a pre-2004 Tutsi-dominated army, to the post2004 merger of the former armed forces (ex-FAB) with the former combatants of Hutu armed groups that resulted in increasing professionalism and international credibility, and to the post-May 2015 period that has witnessed increasing dissent and conflict within the armed forces.128 Initially, the 2000 Arusha agreement mandated a principle of ethnic parity in the security forces,129 bringing about a large scale demobilization of ex-FAB soldiers, the integration 126  Ndimurwimo, Rethinking Violence, Reconciliation and Reconstruction in Burundi, supra n.16, at 875–877. See also Global Disability Watch, Albinism in Burundi: New Report submitted to UN Committee Against Torture, July 7, 2016, http://globaldisability. org/2016/07/07/new-report-torture-people-albinism-burundi (last visited Feb. 5, 2018) (noting that Albinos have been hunted, mutilated and murdered for their body parts because some believe that such parts can bring fortune and good health, and that the government has failed to protect Burundians with this condition). 127  Republic of Burundi, Law No. 1/05 of Apr. 22, 2009, Revising the Penal Code, art. 392. The code provides that: “The fact for a magistrate to deny justice after being required is punished from eight days to one month of penal servitude and a fine of fifty one thousand francs to one hundred thousand francs, or one of these penalties only.” 128  International Crisis Group, Burundi: The Army in Crisis (Africa Report No. 247) (Apr. 5, 2017.). 129  While the Arusha Agreement mandated a 50/50 principle of ethnic parity between the Hutu and Tutsi groups that led to a major reformation of the army, the agreement has not been implemented with respect to the national police or the National Intelligence Service (SNR). Id. at 2. Burundian law also provides that members of the National Defense Force “may not join a political party or association of a political nature and shall not participate in unauthorized political activities or political demonstrations. They refrain from prejudicing the interests of a legally constituted political party, manifesting their political preferences and favoring partisan interests of a political party.” Law No. 1/019 of Dec. 31, 2004, Bearing Creation, Organization, Missions, Composition and Functioning of the National Defense Force, art. 43.

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of former Hutu rebels, and increased western support for the training and equipping of the new Burundian Armed Forces.130 However, there has also been widespread disagreement about President Pierre Nkurunziza’s third term that has led to a low-intensity armed struggle within the country; this struggle has included a May 2015 coup attempt, the extrajudicial killing of senior officers and soldiers, the arrest and conviction of senior officers on charges of treason, the desertion of 600–2,000 soldiers, and the emergence of several armed opposition groups.131 According to Ligue ITEKA, the Burundian League for Human Rights, the government has broadcasted violent propaganda; has suppressed its opponents, to include the Tutsi, ex-FAB soldiers, the unofficial Hutu opposition party (FNL), journalists, and human rights workers; and has used the judiciary as an instrument of repression with an intent to hold power at all costs.132 In fact, an independent group of experts, commissioned by the UN Human Rights Council, found that “gross human rights violations have and are taking place [during the 2015–2016 reporting period], committed primarily by State agents and those linked to them. These gross violations are systematic and patterned and impunity is pervasive.”133

130   The Burundian Armed Forces has participated in several major international peacekeeping missions over the past 15 years, to include the African Union Mission in Somalia (AMISOM) and the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA); such international missions, with high per diem rates compared to normal salary, have been an important source of income and professional prestige for Burundian soldiers. However, the UN recently sent home 280 Burundian police officers from the MINUSCA based upon reports of human rights abuses committed in Bangui. Deutsche Welle, UN terminates Burundi police mission in Central African Republic, June 4, 2016, http://www.dw.com/en/un-terminates-burundi -police-mission-in-central-african-republic/a-19305993 (last visited Jan. 23, 2018). 131  See generally ICJ, Burundi: The Army in Crisis, supra n.128 (noting the lack of cohesion, the use of parallel command structures, and the practice of clientelism by the regime). See also Human Rights Council (General Assembly), Human Rights Situation in Burundi, U.N. Doc. A/HRC/33/L.31 (Sept. 27, 2016) (noting the increase in violence and the serious human rights abuse—with most of the violations committed by the Burundian security services and the Imbonerakure—since the current crisis started in Apr. 2015). 132  See generally Report, Ligue ITEKA (Burundian League for Human Rights), Burundi on the Brink: Looking Back on Two Years of Terror (Bujumbura, June 2017), available at: https:// www.fidh.org/IMG/pdf/burundi_jointreport_june2017_eng_final.pdf (last visited Feb. 3, 2018). 133   Human Rights Council, Report of the UN Independent Investigation on Burundi (UNIIB) established pursuant to Human Rights Council Resolution S-24/1, U.N. Doc. A/ HRC/33/37 (Sept. 20, 2016). See also Office of High Commissioner on Refugees, Burundi: UN Investigation Urges Strong Action in Light of Gross, Widespread and Systemic

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Finally, in October 2017, the International Criminal Court found a “reasonable basis to believe that State agents and groups implementing State policies, together with members of the ‘Imbonerakure’ launched a widespread and systematic attack against the Burundian civilian population.”134 The Court concluded that those targeted included persons were opposed or were perceived to oppose the ruling party after the April 2015 announcement that President Pierre Nkurunziza would run for a third term in office. The Court concluded that there were reasonable grounds to believe that crimes against humanity had been committed by Burundian nationals between April 26, 2015, and October 26, 2017. The Court, therefore, authorized the prosecutor to initiate an proprio motu investigation. In turn, the Burundian government has become the first country to withdraw from the Court’s jurisdiction.135 Second, Burundi has experienced mob justice, often with official complicity, in response to criminal activity throughout the country.136 According to Human Rights Watch, people have lost faith in the national police and the judiciary, believing both to “have been derailed by corruption, incompetence, Human Rights Violations, (Sept. 20, 2016), http://www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=20534 (last visited Jan. 25, 2018). 134  International Criminal Court, Burundi: Situation in the Republic of Burundi, ICC-01/17, https://www.icc-cpi.int/burundi (last visited Jan. 23, 2018). The Imbonerakure (the Kirundi word for “those that see far”) is the youth wing of the Burundi ruling party, the National Council for the Defence of Democracy-Forces for Defence and Democracy (CNDD–FDD); its members have been accused of political violence, in collaboration with government officials, to include extrajudicial killings, beatings and injuries, gang rapes, and banditry. Human Rights Watch, Burundi: Attacks by Ruling Party Youth League Members, Jan. 19, 2017, https://www.hrw.org/news/2017/01/19/burundi-attacks-ruling-party-youth-league -members (last visited Jan. 24. 2018). In effect, the Imbonerakure has been used as an instrument of state-sponsored terror against regime opponents. 135  Jina Moore, Burundi Quits International Criminal Court, N.Y. Times, Oct. 27, 2017, (https://www.nytimes.com/2017/10/27/world/africa/burundi-international-criminal -court.html, last visited Jan. 23, 2018); Toby Sterling and Katharine Houreld, Burundi rejects International Criminal Court War Crimes Investigation, Reuters, Nov. 10, 2018, https:// www.reuters.com/article/us-warcrimes-burundi/burundi-rejects-international-criminal -court-war-crimes-investigation-idUSKBN1DA1IH (last visited Jan. 23, 2018) (refusing to cooperate with the Court even though it has jurisdiction over the alleged offenses). 136  Human Rights Watch, Mob Justice in Burundi: Official Complicity and Impunity (2010). This report by Human Rights Watch his also inconsistent with the contemporaneous 2008 report by the Government of Burundi to the UN Human Rights Council. Human Rights Council, National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1, para. 17, U.N. Doc. A/HRC/WG.6/3/BDI/1 (Sep. 15, 2008) (explaining that “isolated cases of people taking justice into their own hand are occasionally reported” and that perpetrators “are hunted down, arrested, tried, convicted and imprisoned”).

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and inadequate resources.”137 In turn, many people have felt compelled to take matters into their own hands to punish (usually kill) criminal suspects. In fact, the government has apparently contributed the human rights abuses, often either playing a direct role in some killings and beatings or through a failure to investigate incidents of mob justice. According the U.S. State Department, the situation has not improved appreciably over the past ten years; its 2017 Crime and Safety Report indicates that the overall security situation in Burundi is stable, but violent crime and incidents of targeted political violence regularly occur. Poverty, lack of resources, and omnipresent corruption promote criminality that often goes unpunished. 2016 saw a continuation of economic decline. That economic decline, high rates of unemployment, inadequate social services, and political instability will continue to worsen the crime situation.138 In any case, the government’s failure to investigate and prosecute criminal offenses violates Burundi’s obligations under the 1966 ICCPR. Third, Burundi has had a problem with the proliferation of small arms and light weapons among the civilian population since the end of the civil war.139 Initially, after the installation of Nkurunziza’s government in August 2005, Burundi proceeded to demobilize, disarm and reintegrate the former combatants. While there was then no reliable estimate of the number of small arms and light weapons in circulation with the population, at least two sources put the number between 100,000 and 300,000 arms, including assault rifles, grenades, rocket-propelled grenades, mortars, light machine guns, pistols, and home-made, hand-held weapons (mugobore).140 In fact, the proliferation of arms was then highest in Bujumbura-Mairie (only 16 kilometers from the border) and the western provinces,141 as one might expect with the on-going conflict in the eastern DRC providing a ready arms market

137  Id. at 3. 138   U.S. Department of State, Bureau of Diplomatic Security, Burundi: 2017 Crime & Safety Report, Apr. 10, 2017, https://www.osac.gov/pages/ContentReportDetails.aspx?cid=21621 (last visited Jan. 25, 2018). 139  Stephanie Pezard & Nicolas Florquin, Small Arms in Burundi: Disarming the Civilian Population in Peacetime (Small Arms Survey, 2007). 140  Id. at 14. 141  Id. at 14–15.

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with ample supply for Burundian buyers.142 Thus, Burundi’s porous borders, combined with a ready availability of arms in neighboring DRC, Rwanda, and Tanzania, provided the “ideal conditions for creating arms trafficking networks.143 Nonetheless, the Burundian government pursued several import­ ant efforts—at least until the current crisis that started in April/May 2015—to combat the problem.144 There are several important conclusions that one can infer from this evidence. Initially, in a post-war environment with limited economic (job) opportunities, the ready availability of small arms can lead to increased criminality—particularly if the people lack confidence in the police and the judiciary.145 Next, there is a strong need for regional cooperation in controlling the proliferation of small arms and light weapons. In many cases, ethnic conflict in one country creates large-scale refugee flows to neighboring countries, where armed groups seek sanctuary to reorganize, reequip, and retrain for raids back into the country of origin. Indeed, there is often a degree of ethnic solidarity among peoples with the same ethnic origin.146 This suggests that neighboring countries should work together to address underlying political and economic grievances, establish effective border controls, coordinate disarmament programs, harmonize laws where possible, and promote mutual legal assistance in the investigation and prosecution of criminal suspects. This 142   S .C. Res. 12883, Security Council Extends, Expands Sanctions against Democratic Republic of Congo to Cover Those Attacking Peacekeepers, Adopting Resolution 2360 (2017), (June 21, 2017) (extending its long-standing—dating to 2004—arms embargo, asset freeze and travel ban on the DRC until July 1, 2018). 143  Pezard, Small Arms in Burundi, supra n.139, at 22. 144  Id. at 56–75 (noting that Burundi created a national focal point on small arms in May 2003; ratified the Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa in Mar. 2006; sought assistance from the U.N. Development Programme with its disarmament efforts; worked to harmonize laws with neighboring countries; and then conducted several initiatives, often in collaboration with civil society organizations, to demobilize, disarm, and reintegrate the ex-combatants). In any case, the disarmament programs had mixed results because ex-combatants sometimes turned in unusable weapons or none at all, while many people declined to register the weapons that they retained. Id. Indeed, many people probably did not trust the new government and, therefore, out of a concern for self-defense, adopted a “wait and see” approach. Burundi has also passed legislation in 2009 on small arms and light weapons. Republic of Burundi, Act No. 1/14 of Aug. 28, 2009, Small Arms and Light Weapons. 145  Id. at 41–50. 146  See, for example, Michelle Nichols, Exclusive: Rwanda Aids Burundi Rebels, North Korea arms Congo—U.N. experts, Reuters, May 12, 2016, https://www.reuters.com/article/ us-burundi-rwanda-congodemocratic-un/exclusive-rwanda-aids-burundi-rebels-north -korea-arms-congo-u-n-experts-idUSKCN0Y4013 (last visited Jan. 25, 2018) (with the Rwandan government denying any involvement in the support of Burundian rebels).

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evidence strongly suggests that UN sanctions—that is, an arms embargo in conflict-ridden areas—may be required to effectuate the needed international counter-proliferation effort. Burundian law defines terrorism and proscribes a useful set of terrorist acts, although it is lacking in certain important respects. Initially, the Penal Code provides a useful and reasonably complete definition of terrorism: Acts of terrorism, the intentional acts set out below in the context of an individual or collective enterprise for the purpose of seriously disturbing public order by intimidation or terror: 1. Voluntary attacks on the life and integrity of the person, the kidnapping and the sequestration as well as the hijacking of aircraft, ship or any other means of transport; 2. Theft, extortion, destruction, damage and deterioration; 3.  The manufacture or possession of machines, murderous or explosive devices; 4. The production, sale, import or export of explosive substances; 5. The acquisition, possession, transport or illegitimate possession of explosive substances or devices manufactured using such substances.147 This section apparently criminalizes at least three convention offenses, namely involving acts on board aircraft, hostage taking and airport violence, but not terrorist bombings or terrorist financing.148 This section also lacks a proscription against incitement to commit terrorist acts, as required by UNSCR 1624.149

147  Republic of Burundi, Law No. 1/05 of Apr. 22, 2009, Revising the Penal Code, Art. 614. 148  The 1998 Terrorist Bombing Convention provides that    “[any] person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: a. With the intent to cause death or serious bodily injury; or b. With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.”    I nternational Convention for the Suppression of Terrorist Bombing, G.A. Res. 164, U.N. GAOR, 52nd Sess., Supp. No. 49, at 389, U.N. Doc. A/52/49 (1998), entered into force May 23, 2001. 149   S .C. Res. 1624 (pertaining to incitement to commit acts of terrorism and calling upon U.N. Member States to prevent such conduct and to deny safe haven to such persons), U.N. Doc. S/RES/1624 (Sept. 14, 2005).

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The Burundian Penal Code domesticates the 1948 Genocide Convention, 1949 Geneva Conventions, the 1977 Additional Protocols, the 1984 Torture Convention, and the 1998 Rome Statute of the International Criminal Court.150 The 1948 Genocide Convention is important in that it proscribes several offenses that are relevant to the country’s history involving ethnic conflict between the Hutu and the Tutsi; the convention proscribes genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide, and complicity in genocide.151 The Burundian Penal Code also proscribes crimes against humanity; article 196 explicitly explains that crimes against humanity includes widespread or systematic attacks against civilians that involve the “persecution of any identifiable group or community for reasons political, racial, national, ethnic, cultural, religious or sexist, or other universally recognized criteria.”152 Thus, while Burundi lacks a separate statute like that of Rwanda involving wide-ranging aspects of “genocide ideology,” it can prosecute certain forms of speech involving the incitement to genocide. Next, the Burundian Penal Code contains many articles that proscribe constitutive acts that are involved in terrorist activities (e.g., perpetrators and accomplices,153 homicide,154 “voluntary bodily injury,”155 and assault156) or that facilitate terrorism (e.g., trafficking in persons,157 the forgery of identity documents,158 “false denunciation,”159 corruption,160 money laundering161). Finally, the code proscribes important offenses against state security, such as 150  Republic of Burundi, Law No. 1/004 of May 8, 2003, Crimes of Genocide, Crimes against Humanity and War Crimes. See also Republic of Burundi, Law No. 1/05 of Apr. 22, 2009, Revising the Penal Code, art. 204 (proscribing torture and cruel, inhuman or degrading treatment or punishment). The Penal Code also authorizes the grant of amnesty, with some limitations, but precludes it in cases of genocide, crimes against humanity and war crimes. Id. art. 171–176. 151  The 1948 Genocide Convention, art. III, provides that the following acts shall be punishable: “(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.” Reportedly, at least through 2015, there have been no domestic prosecutions for genocide. Ndimurwimo, Rethinking Violence, Reconciliation and Reconstruction in Burundi, supra n.16, at 878. 152  Republic of Burundi, Law No. 1/05 of Apr. 22, 2009, Revising the Penal Code, art. 196. 153  Id. art. 37–41. 154  Id. art. 201–216. 155  Id. art. 219–223. 156  Id. art. 224. 157  Id. at 242. 158  Id. art. 351. 159  Id. art. 406. 160  Id. art. 420–423. 161  Id. art. 441.

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rebellion,162 certain weapons offenses,163 treason,164 espionage,165 participation in an insurrectional movement,166 and the use of propaganda likely to harm thenationalinterest.167 In sum, the Burundian Penal Code contains a broad-range of detailed sections that can be used to investigate and prosecute persons suspected of terrorism offense. Burundi could benefit from a broader law on genocide, proscribing not only incitement but also various aspects of genocide ideology, a broader counter-terrorism statute that domesticates all “convention offenses” (tables 1–3, supra), a law on habeas corpus to ensure prompt and effective judicial oversight—including grounds for arrest and conditions of detention— involving persons in police custody,168 and laws that detail the procedures used in cases involving international legal cooperation and assistance.169 However, Burundi has also experienced significant problems with the enforcement of its law. The increased political violence, as well as the failure to investigate and prosecute a range of offenses, indicates major lapses in the rule of law. In some areas, such as Nkurunziza’s controversial third-term in office, clientelism favoring Hutu soldiers, and the lack of ethnic parity in the national police and 162  I d. art. 372–377. 163  Id. art. 474 (“Anyone who knowingly and voluntarily provides [an association of criminals] with weapons and ammunition, vehicles, is punishable by five years to ten years of penal servitude.”). See also art. 480 (“Anyone who imports, acquires, holds, yields, abandons, manufactures, repairs, transits or exports weapons or ammunition in violation of the laws and regulations in force on the firearms regime is punishable by a criminal servitude of two years to ten years and a fine of one hundred thousand francs to five million francs or one of these penalties only.”). 164  Id. art. 568–573. 165  Id. art. 575–580. 166  Id. art. 597–599. 167  Id. art. 600. 168  See, for example, Committee against Torture, Decision adopted by the Committee at its fifty-sixth session (Nov. 9 to Dec. 9, 2015), Communication No. 578/2013 (TRIAL v. Burundi), para. 7.6, U.N. Doc. CAT/C/56/D/578/2013, Feb. 2, 2016 (noting recurring issues with respect to the excessive lengths of time during which people are held in police custody, the numerous instances in which the maximum allowable period of police custody was exceeded, the failures to maintain current and accurate records on persons in custody, and problems with conditions of detention). See also U.N. Committee against Torture, Concluding Observations on the Second Periodic Report of Burundi, para. 10, U.N. Doc. CAT/C/BDI/CO/2 (Dec. 12, 2014). 169  The 2005 Post-Trans. Interim Const. Rep. of Burundi does not provide an explicit guarantee of the right to habeas corpus, although article 38 recognizes a right of legal process and article 39 protects against an arbitrary deprivation of liberty. The issue is not addressed in either the Burundian 2009 Penal Code or the 2013 Code of Criminal Procedure.

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members of the National Intelligence Service (SNR), the rule of law has been spurred political and ethnic violence such that the country risks a renewed civil war. In any case, Burundi faces continuing violence, perhaps even noninternational armed conflict, unless the government finds a means of political accommodation with the Tutsi opposition. 5.3

Rwandan Counterterrorism Law and Practice

Rwandan law defines terrorism and proscribes a full range of terrorist acts. Initially, under Article 497 of the Rwandan Penal Code, the term “terrorism” means “1) to commit or threaten to commit acts aimed at leading State organs to change their functioning by taking hostages of one or more persons, killing, injuring or threatening the population by use of any means that may kill or injure a person; 2) to commit or threaten to commit an act mentioned under item 1 of this Paragraph on political, religious or any ideological grounds.”170 Rwandan law defines certain unique offenses, such as the crimes of negationism and minimization of genocide and of discrimination and sectarian practices, as well as many of the more common terrorism offenses under international law. In addition, Rwandan law domesticates the 1949 Geneva Conventions, to include providing for extraterritorial jurisdiction over genocide, crimes against humanity, and war crimes. Rwanda has experienced a range of national security threats since the 1994 genocide. Initially, the government fought major counter-insurgency operations against Hutu groups in Rwanda, as well as two wars in eastern Zaire/DRC against Hutu Power groups who had been using that territory as sanctuary/a base of operations for attacks into Rwanda. Rwanda still faces a threat posed by the FDLR genocidal militia operating across the border in DRC.171 Rwanda has also experienced low-level domestic terrorist attacks against civilians, often involving the use of a grenade.172 Finally, Rwanda risks 170  Republic of Rwanda, Organic Law Instituting the Penal Code, No. 01/2012/OL of May 2, 2012, Official Gazette Special of June 14, 2012. 171  Edison Akugizibwe, Kagame: Rwanda Faces More Security Threats, ChimpReports, Jan. 1, 2015, http://chimpreports.com/kagame-rwanda-faces-more-security-threats/ (last visited Jan. 24, 2018). 172  See, for example, AP, Police: 6 injured in Rwanda Grenade Attack, Jan. 28, 2014, https://www .yahoo.com/news/police-6-injured-rwanda-grenade-attack-114457683.html (last visited Jan. 24, 2018). Small arms and grenades were widely available to the local population, both before and during the 1994 genocide, “to intimidate people, induce fear, and demonstrate

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political violence associated with national elections, particularly considering the 2015 referendum that amended the Constitution that would allow Kagame to run for another term in office as president.173 While Kagame could—at least theoretically—now hold office through 2034, this risks increased political violence both by opposition groups and by the government in response. The 2012 Rwandan Penal Code proscribes a broad range of acts involving genocide ideology and the protection of the State against ethnic divisionism. This set of laws shares several legally significant characteristics.174 First, each article uses language that is vague and non-specific, making it difficult for a person to know what is prohibited and leaving the courts with very broad discretion in its application (i.e., a problem violation of the legal principle of certainty; the concept that a person subject to the law should have the ability to regulate his affairs). Second, each article carries heavy prison sentences. Third, as a set of laws, this creates a situation that can chill what may even be permissible speech. In other words, the government can use a threat of prosecution under these laws to silence critics. Finally, this set of laws may not be consistent with Rwanda’s obligations under the 1996 International Covenant on Civil and Political Rights (ICCPR) or the 1981 African Charter on Human and Peoples’ Rights (the Banjul Charter). Under the ICCPR, article 19(3), the issue is whether the restrictions “are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”175 Under the

power.” Cécelle Meijer & Philip Verwimp, The Use and Perception of Weapons before and after Conflict: Evidence from Rwanda, Working Paper No. 2 (Small Arms Survey, 2005), at 34. 173  Human Rights Watch, Rwanda: Decades of attacks repression and killings set the scene for next month’s election, July 7, 2017, https://www.amnesty.org/en/latest/news/2017/07/ rwanda-decades-of-attacks-repression-and-killings-set-the-scene-for-next-monthselection/ (last visited Jan. 24, 2018) (documenting how opposition politicians, journalists and human rights defenders have faced restrictions on political rights since the genocide). See also BBC News, Rwanda election: President Paul Kagame wins by landslide, Aug. 5, 2017, http://www.bbc.com/news/world-africa-40822530 (last visited Jan. 24, 2018). 174  See generally Yakare-Oule (Nani) Jansen, Denying Genocide or Denying Free Speech? A Case Study of the Application of the Rwanda’s Genocide Denial Laws, 12 Nw. J. Intl’ Hum. Rts. 191 (2014) (examining the shortcomings of the genocide denial laws, to include after the passage of the 2013 Law on the Crime of Genocide Ideology and Other Related Offenses). 175   T he International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entered into force Mar. 23, 1976.

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Banjul Charter, article 9, the issue is whether the limitations are consistent with the guaranteed freedom of speech.176 The Rwandan Penal Code, for example, contains important prohibitions relating to genocide ideology and ethnic divisionism, but typically using vague or one-sided language.177 First, one should note that article 116 refers to the genocide against the Tutsi, but references to reprisals and atrocities against the Hutu could be construed as an attempt to minimize the 1994 genocide. Second, what does it mean to “rudely” minimize a genocide? Third, article 135 does not define the term “genocide ideology,” although it does indicate that a separate law will passed to define that.178 Fourth, incitement (advocacy) to commit genocide is properly characterized as an inchoate crime; the crime is punishable whether or not it actually leads to future acts (e.g., genocide itself).179 176   A frican Charter on Human and Peoples’ Rights (the Banjul) Charter, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. UN Treaty Collection, https://treaties.un.org/ (last visited Nov. 2, 2017). 177  See, for example, Amnesty International, Setting the Scene for Elections: Two Decades of Silencing Dissent in Rwanda (2017) (examining four case studies involving the political opposition, independent media and human rights defenders). See also Amnesty International, “Rwanda: Eight-Year Prison Sentence for Opposition Leader,” Oct. 30, 2012, https://www.hrw.org/news/2012/10/30/rwanda-eight-year-sentence-opposition-leader (last visited Jan. 17, 2018) (examining the politically charged conviction, to include fair trial concerns, of a political opposition leader based on charges involving terrorism and genocide ideology). However, in a November 2017 decision, the African Court on Human and Peoples’ Rights (AfCHPR) applied the margin of appreciation and subsidiarity doctrines, and held that the “restriction made on the Applicant’s freedom of expression served the legitimate interests of protecting national security and public order”—but that the conviction and 15-year prison sentence was a disproportional and unnecessary restriction on her freedom of speech. Ingabire Victoire Umuhoza v. The Republic of Rwanda, App. No. 003/2014, Judgment of Nov. 24, 2017, paras. 141 and 173(viii)–(ix). One interesting argument raised in this case by the Rwandan government is the point that the theory of a “double genocide” is, in fact, a means of minimizing the 1994 genocide as an inter-ethnic conflict with culpability on both sides, although the Court concluded that the Applicant did not actually advance that view. Id. at paras. 128–129. 178  A 2013 statute defines genocide ideology as “any deliberate act, committed in public whether orally, written or video means or by any other means which may show that a person is characterized by ethnic, religious, nationality or racial-based with the aim to: 1) advocate for the commission of genocide; 2) support the genocide.” Law on the Crime of Genocide Ideology and Other Related Offences, No. 84/2013 of Sept. 11, 2013, art. 3. Also, the same law proscribes a range of acts to include incitement to commit genocide, negation of genocide, minimization of genocide, justifying genocide, concealment or destruction of evidence of genocide or of other crimes against humanity, theft or destruction of remains of victims of genocide, demolishing a memorial site or cemetery for the victims of genocide, and violence against a genocide survivor. 179  See also Gordon, Atrocity Speech Law, supra n.13, at 135–166 (examining the causation element in the ICTR’s incitement to commit genocide cases and arguing that

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Article 116: Punishment of the crime of negationism and minimization of the genocide against the Tutsi. Any person who publicly shows, by his/her words, writings, images, or by any other means, that he/she negates the genocide against the Tutsi, rudely minimizes it or attempts to justify or approve its grounds, or any person who hides or destroys its evidence shall be liable to a term of imprisonment of more than five (5) years to nine (9) years. If the crimes under Paragraph One of this Article are committed by an association or a political organisation, its dissolution shall be pronounced. Article 135: Punishment of the crime of genocide ideology and other related offences. Any person who commits the crime of genocide ideology and other related offences shall be liable to a term of imprisonment of more than five (5) years to nine (9) years and a fine of one hundred thousand (100,000) to one million (1,000, 000) Rwandan francs. A law shall provide for the details related to genocide ideology and other related offences. Article 136: Punishment of the crime of discrimination and sectarian practices. Any person who commits the crime of discrimination and sectarian practices shall be liable to a term of imprisonment of more than five (5) years to seven (7) years and a fine of one hundred thousand (100,000) to one million (1,000, 000) Rwandan francs. In sum, the Rwandan Penal Code places important restrictions on certain civil liberties, particularly the freedom of press, expression, association, and assembly as it pertains to genocide ideology and ethnic divisionism. While the restrictions have been imposed by law, at least in the sense of a statute passed by parliament and published in a gazette in general circulation, the use of vague and ambiguous terms raises questions whether the restrictions are incitement is an inchoate crime despite contradictory decisions from the ICTR and the Yugoslav Tribunal).

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really “provided by law and are necessary.” Certainly, Rwanda has experienced significant conflict between the Hutu and the Tutsi since 1959, leading one to conclude that strong measures are needed to overcome a tragic history centered on identity politics. But, without greater definition, it makes it difficult for a person to understand what is actually proscribed by law. Still, Rwanda’s problem after 1994 has been how to eradicate old ways of thinking so that all Rwandans could live again—intermingled—as one cohesive society. The Rwandan Penal Code also contains numerous provisions relating to terrorism; each provision carries a significant prison sentence. This set of laws is very thorough, including numerous provisions that provide for extra-territorial jurisdiction over certain offenses,180 the extradition of persons,181 treason,182 a range of offences against internal State security,183 and the domestication of Rwanda’s obligations under international law with respect to the 1949 Geneva Conventions and a range of terrorism conventions.184 There are several key counter-terrorism sections in the Rwandan Penal Code. Article 169: Threat to commit an act qualified as terrorism. Any person who threatens to commit an act which may be qualified as terrorism shall be liable to a term of imprisonment of three (3) years to five (5) years. 180  Republic of Rwanda, Organic Law Instituting the Penal Code, supra n.170, art. 16 (punishment of an international crime and cross-border crime, including terrorism, hostage taking, piracy, drug and arms trafficking, money laundering, slavery and torture, genocide, crimes against humanity and war crimes, and genocide denial or revisionism). The Rwandan Penal Code, article 176, defines the offense of torture, closely tracking the language used in the Convention against Torture, while article 177 provides for penalties involving a maximum term of life imprisonment. 181  Republic of Rwanda, Organic Law Instituting the Penal Code, supra n.170, art. 18 (permitting extradition only in cases of dual criminality and where there is an existing treaty, but prohibiting extradition for political offenses). 182  Id. art. 446. In the Joel Mutubazi case, a former RPF officer who had been apparently kidnapped while in Uganda and then transferred back to Rwanda, was tried before a military trial court on charges of terrorism and treason, convicted and then sentenced to life imprisonment. East African, Joel Mutabazi Sentenced to Life for Treason, Oct. 4, 2014, http://www.theeastafrican.co.ke/news/Joel-Mutabazi-sentenced-to-life-for-treason-/-/ 2558/2475244/-/ntxqfw/-/index.html (last visited Jan. 19, 2018). 183  Id. art. 460–475 (including inciting insurrection, existence of a conspiracy and sedition). 184  Id. See, for example, section 6 (offenses committed aboard aircraft or at the airport without a terrorism intent), article 504 (aircraft hijacking), article 508 (hostage taking), article 509 (internationally protected persons), article 503 (possession or manufacturing of chemical weapons), article 504 (use of chemical weapons for terrorism purposes), and article 519 (piracy of ships).

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If the threat causes death of persons, he/she shall be liable to life imprisonment. Article 459: Formation of an irregular armed group. Any person who carries out recruitments or incites or makes an agreement with the armed group other than the regular forces of the State, by gifts, remuneration, threats, abuse of authority or power shall be liable to a term of imprisonment of ten (10) years to fifteen (15) years. Any person who, willingly, engages or is recruited in an army other than the regular force of the State, shall be liable to a term of imprisonment of seven (7) years to ten (10) years. Article 463: Inciting insurrection or trouble amongst the population. Any person who, by speeches held in meetings or public places, or writings, images or emblems, any posters, sold or on sale or displayed to the public, knowingly spreads rumours, excites the population against established Government, or incites or attempts to incite citizens against each other or attempts to alarm the population with intention to cause trouble on the national territory of the Republic of Rwanda, shall be liable to a term of imprisonment of ten (10) years to fifteen (15) years. Article 497: Definition of terrorism. For the purpose of this Organic Law, terrorism means: 1) to commit or threaten to commit acts aimed at leading State organs to change their functioning by taking hostages of one or more persons, killing, injuring or threatening the population by use of any means that may kill or injure a person; 2) to commit or threaten to commit an act mentioned under item 1º of this Paragraph on political, religious or any ideological grounds. Article 518: Conspiracy and incitement to commit terrorism. Any person, who conspires, mobilizes others to commit or attempts to commit any act of terrorism directly or indirectly shall be liable to a term of imprisonment of twenty (20) years to twenty-five (25) years.

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In addition, the Rwandan Penal Code explicitly criminalizes a wide range of activities that facilitate terrorism, such as acts involving ambush,185 murder,186 complicity to terrorism,187 terrorism proceeds,188 agreeing to provide material support,189 money laundering,190 violence against public authorities,191 activities that disrupt the electoral process,192 immigration offenses,193 corruption and bribery,194 terrorism financing,195 offenses related to illegal weapons,196 and offenses relating to illegal political organizations.197 One law, apparently not enforced, criminalizes the illegal detention of persons by government officials.198 Title 4 contains an entirely separate 185  186  187  188  189 

190  191  192  193  194  195  196  197  198 

I d. art. 139. Id. art. 140. Id. art. 499 (Complicity in a terrorist act). Id. art. 521 (Donating, receiving, or inciting to receive proceeds of terrorism). Id. art. 522 (Making an agreement to support terrorism). This article provides that: “Any person who knowingly makes an agreement or has an interest in it in order to acquire funds or any other assets, or enables a person to acquire money or support, having reason to believe that they can be used for terrorist purpose, shall be liable to a term of imprisonment of fifteen (15) years to twenty (20) years.” Id. art. 523 (Money laundering activities in terrorism). Id. art. 540 (Violence against public authorities). Id. Section 5 (Offences which disrupt electoral process). This section includes offenses such as article 553 (Penalties for use of criminal groups, disturbances or intimidation to disrupt smooth conduct of elections). Id. art. 618–623. Id. art. 633–651. Id. art. 652–658. Id. art. 671–680. Id. art. 686 (Offences of forming or leading or claiming to lead an illegal political organization). Id. art. 668 (Unlawful detention) provides: “Any civil servant who puts or retains a person in detention or in prison, without an order or a judgment passed in conformity with the law, shall be liable to a term of imprisonment equivalent to the term incurred by the illegally detained person and a fine of one hundred thousand (100,000) to one million (1,000,000) Rwandan francs.” See generally Human Rights Watch, “We Will Force You to Confess”: Torture and Unlawful Military Detention in Rwanda (2017) (describing “systematic patterns of torture, enforced disappearances, illegal and arbitrary detention, and other serious human rights violations in military detention centers in Rwanda, from 2010 to 2016” involving suspected FDLR combatants and civilians). Human Rights Watch also makes important recommendations, to include paying compensation to all Rwandan victims of torture and ill-treatment, ensuring that judges exclude evidence derived from torture and ill-treatment, and the ratification of the 2006 ICPPED. Id. at 6–7. The Rwandan Law Relating to the Code of Criminal Procedure, No. 30/2013 of May 24, 2013, recognizes several important due process rights for a criminal suspect, including limitations on search and seizure (art. 28–31), the right to be informed

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section involving Rwandan military law and the operation of military courts.199 5.4

Counterterrorism Assessment and Recommendations

This case study involving Burundi and Rwanda demonstrates how domestic, non-state actors can have a deleterious impact on neighboring countries (i.e., ethnic tensions spilling over porous borders with resulting refugee flows), how neighboring countries can prolong a conflict through sanctuary and support, and why regional partners need effective international agreements— domesticated into national laws consistent with international human rights norms—that can enhance international legal cooperation in the investigation and prosecution of serious crimes. Such cooperation can promote peace and stability by bringing about an end to impunity for serious crimes. One area in which this is evident concerns the extradition of genocide suspects—based upon the principle of universal jurisdiction—from Europe, Canada, and the United States back to Rwanda; to the extent that foreign courts lack confidence in Rwanda’s courts, as well as their ability to guarantee a fair trial under of the charges (art. 38), the right to legal counsel (art. 39), and the right of habeas corpus (art. 91 and 92). In addition, the Code of Criminal Procedure provides for the intercept of electronic communications and correspondence, but based upon the approval of a National Prosecutor (i.e., not a judge) (art. 72–75). Unlike the Kenyan Constitution, art. 49, which recognizes the right of a criminal suspect to be brought before a magistrate within 24 hours after arrest, Rwandan law provides only that a Judicial Police Officer must submit the case to a Public Prosecutor within a set period (e.g., art. 37). Rwandan law also recognizes the authority of the government to hold a suspect in provisional detention—generally for offenses “punishable with imprisonment of at least two (2) years”—pending an investigation/prosecution of the case (art. 96). A judge must rule on provisional detention within 72 hours of the case being brought before him and may order the detention of the suspect for renewable one-month periods (art. 100–104). 199  Republic of Rwanda, Organic Law Instituting the Penal Code, supra n.170, art. 706–761. Article 708 (Application of the provisions relating to punishment of military offences) limits the jurisdiction of military courts to military personnel: “Military courts shall apply penalties under ordinary criminal law for ordinary offences committed by soldiers between themselves and against civilians.” However, Human Rights Watch has documented—although the claims are denied by the Rwandan government—that the Rwandan military and intelligence services have held many suspected enemy combatants and civilians in military detention facilities before transferring such persons to the regular court system to stand trial. See generally Human Rights Watch, “We Will Force You to Confess,” supra n.198.

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international human rights standards, foreign courts are unlikely to support the investigation, transfer and prosecution of a criminal suspect.200 Indeed, Burundi and Rwanda make an interesting comparison in terms of legal responses to the recurring atrocities and human rights abuses resulting from the Hutu-Tutsi conflict. In terms of constitutional law, Burundi has adopted a practice involving power-sharing between the two groups while Rwanda has explicitly rejected any mention of ethnicity in political and legal matters with important limitations on the freedom of speech, assembly, and association (i.e., the registration of political parties). In terms of statutory law, Burundi has adopted the proscriptions from the 1948 Genocide Convention relating to the incitement of genocide while Rwanda has adopted a broader approach involving “genocide ideology.” Thus, both governments can benefit from stronger regional legal cooperation, particularly with respect to extradition,201 judicial cooperation, and harmonized domestic laws.202 In 200  Helen L. Trouille, France, Universal Jurisdiction and Rwandan genocidaires, 14 J. of Int’l Criminal Justice 195, 203–209 (Mar. 2016) (examining France’s unwillingness to extradite Pascal Simbikangawa to Rwanda to stand trial for his role in the 1994 genocide, but with changing views in the European Court of Human Rights about Rwanda’s ability to guarantee a fair trial). The Princeton Principles, based upon a collaborative project involving leading legal scholars that was convened at Princeton University in January 2001, provides a useful guideline with respect to the application of universal jurisdiction; the principles cover important issues such as competing national jurisdictions, double jeopardy, and grounds for refusal of extradition. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law 18–25 (Stephen Macedo, ed., 2004). 201  The obligation of States to cooperate in extradition matters is well-established in the 1949 Geneva Conventions, the 1977 Additional Protocols, the 1984 Torture Convention, and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. International Committee of the Red Cross (Advisory Service on International Humanitarian Law), Cooperation in Extradition and Judicial Assistance in Criminal Matters, https://www.icrc.org/eng/assets/files/2014/cooperation-in-extraditionand-judicial-assistance-in-criminal-matters-icrc-eng.pdf (last visited Jan. 23, 2018) (providing a useful table of aut dedere aut judicaire obligations in IHL treaties and other documents). 202  At a March 2016 conference sponsored by the U.N. Joint Human Rights Office and the Special Envoy of the Secretary General for the Great Lakes Region, the conferees concluded that regional judicial cooperation was hindered for multiple reasons, including, “i) The absence of national legislation on regional judicial cooperation; ii) The absence of harmonized national laws on regional judicial cooperation; iii) The absence or the lack of knowledge of the designated focal points in the national institutions in charge of facilitating the requests for regional judicial cooperation; [and] iv) The non-development of specific mechanisms that are recommended by regional conventions….” ICTJ, Regional Judicial Cooperation in the Fight against Impunity for International Crimes: Analysis of National Regulatory Systems and Internal Procedures in View of the Protocol on Judicial

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any case, both governments must address the fundamental grievances, real or perceived, involving the inequitable application of the law between the Hutus and the Tutsis. The Government of Burundi faces a range of non-state terrorist threats; the government should adopt a range of comprehensive legal reforms that would provide a useful range of counter-terrorism tools. First, Burundi has probably crossed the threshold from a human rights (law enforcement) paradigm to a non-international armed conflict within the meaning of the 1949 Geneva Conventions—even if the Nkurunziza government has failed to acknowledge it. And, there is sufficient evidence to conclude that war crimes and crimes against humanity have probably been committed by the government forces and the Imbonerakure. The government should, therefore, reconsider the propriety of amending the Constitution to permit the President to serve more than the permissible two terms, thereby removing the immediate cause for the current conflict and allowing the parties some political space for negotiation and reconciliation. Second, the government should renew cooperation with the ICC, at least with respect to the offenses committed within the jurisdiction of the Court before Burundi’s 2017 withdrawal. Indeed, the government’s withdrawal from the Court is a harbinger of future troubles for the country, both in terms of its unwillingness to assume accountability for any past offenses that might support national reconciliation and also because it implies that the on-going human rights abuses will continue for the foreseeable future. This can only undermine the legitimacy of the Nkurunziza government in the eyes of the international community. Third, the government has initiated a useful Truth and Reconciliation Commission, but with the membership in favor of the Hutu.203 Such as a commission, supported by both sides, could promote a greater understanding about the multiple violations of human rights from Burundi’s independence in 1962 to 2008, helping to establish a basis for sustainable reconciliation. The government should, therefore, consider a commission with membership balanced between the Hutu and the Tutsi groups, allowing for a full airing of grievances held by both sides. Fourth, the government should end the practice of extraordinary rendition; the transfer of all suspects—either from or to Cooperation, conference report, p. 5, Kinshasa, Mar. 15–16, 2016, https://www.ictj.org/ sites/default/files/JudicialCooperation_GreatLakes_ConfReport_ENG.pdf (last visited Jan. 21, 2018). 203   D aily Mail, Burundi appoints Controversial Truth Commission Members, Dec. 3, 2014, http://www.dailymail.co.uk/wires/afp/article-2860084/Burundi-appoints-controversial -truth-commission-members.html (last visited Jan. 24, 2018).

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Burundi—should be effected through the civilian court system and allowing the suspect full due process guarantees. Finally, one problem results from Burundi’s quasi-monist legal culture: Article 19 of the 2005 Constitution is non-specific as to which human rights obligations are considered an integral part of Burundian law.204 This cannot be a useful approach for the human rights defenders, lawyers, and judges. The Constitution should be amended to include only specific obligations that have been incorporated into domestic law. Otherwise, Burundi should probably change to a dualist approach to the incorporation of international law with the adoption of other international obligations by the enactment of explicit statutory law. The Government of Rwanda faces a range of non-state armed groups, as well as political opposition parties, largely based upon the long-standing animosity between the Hutu and Tutsi ethnic groups. And, while Rwandan law contains a broad range of very thorough tools for the counter-terrorism fight, there several measures that the government could adopt to strengthen national compliance with international legal norms. First, the government should consider various means of opening the political space, permitting a greater range of space (the freedoms of expression, assembly, and association) to the opposition political parties. This does not necessarily require a change in domestic law, but rather a greater tolerance for the airing of opposing political views. Second, the government should end the arbitrary arrest, transfer and detention of suspected terrorists/enemy combatants.205 Thus, the government should ensure that persons transferred to Rwanda (e.g., from either Burundi 204  Art. 19, cl. 1, provides that the “rights and duties proclaimed and guaranteed, between others, by the Universal Declaration of Human Rights, the International Pacts related to human rights, the African Charter of human and community rights, the Convention on the elimination of all forms of discrimination at towards women and the Convention related to children’s rights are an integral part of the Constitution of the Republic of Burundi” (emphasis added). Thus, Burundi has not ratified several important human rights treaties, such as the Optional Protocols to the ICCPR and the 2012 AU IDP (Kampala) Convention. The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, which entered into force in 2012, obligates governments to protect the rights and wellbeing of persons who have been uprooted by domestic conflict, violence, disasters and human rights abuses. See also Workshop Report, Kampala Convention: From Ratification to Domestication and Operationalisation, Internal Displacement (Nov. 30–Dec. 2, 2015), http://www.internaldisplacement.org/library/publications/2016/workshop-report-/ (last visited Jan. 24, 2018). 205  The ICCPR, art. 9(3), provides that: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”

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or the DRC) are processed through an extradition proceeding before a civilian magistrate. Third, the government should require that all suspected terrorists and/or enemy combatants—not members of the Rwanda Defence Forces (RDF)—be brought before a civilian magistrate within 48 hours of arrest. This change in the law will likely require either a constitutional amendment or a new statute; in any case, a guaranteed right of habeas corpus would help ensure effective judicial oversight over law enforcement officials, while also increasing the level of public support in legitimate counterterrorism cases. Fourth, the government should prohibit the domestic arrest, interrogation and detention of suspected terrorists and/or enemy combatants by the Rwandan military; such cases should be handled by Rwandan law enforcement officials. And, if a person were to be arrested by the military on an exceptional basis (e.g., an armed band crosses the border from the DRC, with its members pursued and captured by the RDF), such terrorist suspects should be promptly turned over to local law enforcement authorities. Again, this change in the law will likely require either a constitutional amendment or a new statute. Fifth, the Rwandan government should ensure that payment is made to all victims of Rwandan torture and ill treatment, as required by both the UN Human Rights Commission206 and the Committee against Torture. Again, this would likely require a change in statutory law. Next, the Rwandan courts should investigate claims involving coerced testimony and adopt an exclusionary rule precluding the introduction of such evidence in any trial proceeding.207 While this practice is reportedly in use by the Rwandan judiciary, this should be made 206   U.N. Human Rights Committee (ICCPR), General Comment 31 to the ICCPR, paras. 16 and 17, U.N. Doc. CCPR/C/21/Rev.1/Add. 1326 (May 29, 2004) (noting that State Parties to the ICCPR “must ensure that individuals also have accessible and effective remedies to vindicate those rights,” and State Parties must “make reparation to individuals whose Covenant rights have been violated”). 207  The imposition of this duty on the judiciary would be consistent with the fair trial standards in both the 1966 ICCPR and the 1948 Convention against Torture. Compare ICCPR, art. 14(3)(g) (a person should “[not] be compelled to testify against himself or to confess guilt”), with U.N. Committee against Torture (Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment), General Comment No. 3 (Implementation of article 14 by States Parties), para. 18, U.N. Doc. CAT/C/GC/3 (Nov. 19, 2012) (to “guarantee non-repetition of torture or ill-treatment, States parties should undertake measures to combat impunity for violations of the Convention”). Rwanda claims that illegally obtained evidence is “null and void” before its courts, but Human Rights Watch reports—in the cases that it has observed—that the judges did not investigate or exclude evidence. Compare Human Rights Watch, “We Will Force You to Confess,” supra n.197, at 71–77, with Committee against Torture (CAT), Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Second Periodic

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explicit by a change in statutory law. Next, the Rwandan government should ratify the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The ratification of this convention would complement the previously recommended changes in Rwandan law, particularly the adoption of an explicit right of habeas corpus, a prohibition against the domestic arrest of suspected terrorists by the military, and an obligation to ensure payment to all victims of torture and other ill-treatment. Last, the Rwandan NCHR should investigate and publicly report on military detention and interrogation practices.208 Again, Rwanda does not require a change in domestic law for the NCHR to accomplish these tasks.209

Reports of States Parties due in 2016: Rwanda, Sept. 5, 2016, U.N. Doc. CAT/C/RWA/2, available at: http://www.refworld.org/docid/5882261e4.html (last visited Jan. 19, 2018). 208  According to Human Rights Watch, the NCHR has never done so. Human Rights Watch, “We Will Force You to Confess,” supra n.197, at 66. 209  The NCHR is already tasked by statute to promote and protect Human Rights, as well as to receive and investigate allegations involving human rights violations. Law Determining Missions, Organisation and Functioning of the National Commission for Human Rights, No. 19/2013 of March 25, 2003.

Chapter 6

Counterterrorism Law and Practice in Tanzania 6.1

Introduction: Tanzanian Law and Practice

Unlike its neighbors Burundi and Rwanda, the United Republic of Tanzania1 has experienced a level of political stability and national unification over the past fifty years that many persons attribute to the political leadership of Julius Kambarage Nyerere.2 This, in itself, is a significant accomplishment in a country of about 54 million people in 130 diverse ethnic groups; while the Muslim/Christian split in the overall population is about 35/60 percent, more than 95 percent of the people in the Zanzibari archipelago are Muslim (largely Sunni, a majority of whom are likely Sufis).3 Nyerere, the first president of 1  Tanganyika gained its independence from the United Kingdom on Dec. 9, 1961; the UK then ended its protectorate over Zanzibar in Dec. 1963. Tanganyika was initially an independent Commonwealth State with the British monarch as the head of state; it subsequently adopted a 1962 Constitution that abolished the monarchy. Zanzibar was briefly ruled as an independent constitutional monarchy under Sultan Jamshid bin Abdullah who was promptly deposed during the January 1962 Revolution. Both sovereign States then merged into a political union in April 1964 based upon an agreement between Julius Nyerere and Zanzibari revolutionary leader Sheikh Abeid Amani Karume who served as the first post-revolutionary—and dictatorial—president of Zanzibar (1964–75). On Oct. 29, 1964, the United Republic of Tanganyika and Zanzibar was renamed the United Republic of Tanzania. Subsequently, the nationalist Tanganyika National African Union (TANU) and the Zanzibar-based, Africanoriented Afro-Shirazi Party (ASP) became the only legal political parties. Despite the formal union, Zanzibar retained considerable autonomy and did not enact its own Constitution until 1984. Still, modern Tanzania experiences three distinct identity conflicts: between the large Christian and Muslim populations, between mainlanders and Zanzibaris who believe that the islands have been “swallowed” and marginalized by the mainland, and between residents of the main island of Zanzibar (also known as Unguja) and the slightly smaller Pemba Island. Bruce Heilman & William John, Countries at the Crossroads 2012: Tanzania, (Freedom House, undated), https://freedomhouse.org/report/countries-crossroads/2012/ tanzania (last visited Feb. 3, 2018). 2  Bonny Ibhawoh & J.I. Dibua, Deconstructing Ujamaa: The Legacy of Julius Nyerere in the Quest for Social and Economic Development in Africa, 8 Afr. J. of Pol. Sci. 59–83 (2003). See also Marie-Aude Fouere, Remembering Julius Nyerere in Tanzania (Dar es Salaam, 2015) (examining how Nyerere is remembered by Tanzanians today, to include what he means to people and what he stands for). 3  C IA, World Factbook, available at: https://www.cia.gov/library/publications/the-world -factbook/geos/rw.html (last visited Feb. 9, 2018); Abdisaid Musse Ali-Koor, Islamist Extremism in East Africa, 32 Afr Sec. Brief (Aug. 2016), at 3. Islamic Salafis (i.e., Wahhabi believers, often originating from conservative Arab States) typically consider

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the Tanzania from April 1964 until his retirement in October 1985, developed a political and economic “philosophy of Ujamaa as an attempt to integrate traditional African values with the demands of the post-colonial setting.”4 As a national development philosophy, Ujamaa sought to make Tanzania into a self-reliant socialist nation; Ujamaa had as its core an emphasis on the familyhood and communalism of traditional African societies. In fact, Nyerere placed considerable emphasis on nation building, to include preparing children through primary education, promoting basic literacy in Kiswahili, and preventing the politicization of ethnic and religious identities.5 Thus, while Nyerere’s 1967 Arusha Declaration with its Ujamaa philosophy could be seen “on one level [as] a political manoeuvre, which shored up support and eliminated rivals, it also served to recapture and re-moralize public space, re-enchanting nationalist discourse in a narrative that put Nyerere firmly at the centre as author of the new aims of [the ruling political party, TANU].”6 But, while many of Nyerere’s economic policies, such as the nationalization of the economy and the coercive villagization campaign, met with only limited success, many writers see Tanzania’s most notable achievements in the strong sense of national identity and its advances in social welfare. On one hand, Mwalimu (Teacher) Nyerere is lionized is the “Father of the Nation” (Baba wa Taifa), to the extent that some have campaigned for his canonization by the Catholic Church7 and his name is frequently invoked by politicians and the Sufism—sometimes described as a “mystical” interpretation of Islam—to be heretical with offensive practices. This suggests a split in cultural identity between “foreign” and “native African” Islamic believers, offering avenues for combating foreign terrorists and countering violent extremism. Ali-Koor, Islamist Extremism in East Africa, at 4. 4  Ibhawoh, Deconstructing Ujamaa, supra n.2, at 60 (explaining that Ujamaa sought to integrate what was best from traditional African society and from the country’s colonial experience; Ujamaa was formally inaugurated in the famous Arusha Declaration of 1967 and was based upon three essentials: individual freedoms, equality among people, and social unity). 5  Heilman, Countries at the Crossroads 2012, supra n.1, at 2. 6  Emma Hunter, Julius Nyerere, the Arusha Declaration, and the Deep Roots of a Contemporary Political Metaphor, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 85. 7  Simeon Mesaki & Mrisho Malipula, Julius Nyerere’s Influence and Legacy: From a Proponent of Familyhood to a Candidate for Sainthood, 3 Int’l J. of Soc. & Anthropology 93–100 (March 2011) (also noting that Nyerere found nothing incompatible between socialism and any religion which accepts the equality of man, with socialism operating in the public sphere and religious activity belonging in the private). In one sense, Nyerere’s own modesty, to include his acceptance of the Mwalimu moniker with reference to his university education and earlier work as teacher, stands in contrast to some of his own megalomaniac contemporaries, such as Jean-Bedel Bokassa, a former colonel who proclaimed himself Emperor of the Central African Republic; Idi Amin, a former sergeant with a fourth-grade education, who promoted himself to the rank of Field Marshal and gave himself various

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press as a metaphor for public morality (e.g., in the inequality of wealth and corruption in government).8 On the other hand, some believe that Nyerere left at least two festering political wounds—the first one involving the extra-constitutional and still contested 1964 union of Tanganyika and Zanzibar into a single nation—that still haunts the country.9 In fact, in some Zanzibari circles he is regarded as not the “Father of the Nation,” but is sometimes demonized as the “Enemy of the [Zanzibari] Nation” (adui wa taifa).10 A related and continuing problem concerns the nature of the political system itself and the suppression of opposition political parties. Thus, even though Tanzania later abandoned socialism and adopted a multi-party political system in 1992, the government has used various means to limit political participation, to include amending the Constitution after unfavorable court decisions and controlling the membership in the National Electoral Commission (NEC), and maintaining CCM dominance.11 Nonetheless, Nyerere set a post-independence course for Tanzania, at least in terms of political unity and religious tolerance, which has helped make it one of the more peaceful nations on the continent. Indeed, Nyerere was proponent of Pan-Africanism and the early efforts at establishing the East African Community. Nyerere’s legacy has continuing political relevance for Tanzania, no doubt supported by the coincidence that both the annual national celebration of his   awards; or Mobutu Sese Seko who established a kleptocratic State in Zaire with all power in his own hands. James R. Brennan, Julius Rex: Nyerere through the Eyes of his Critics, 1953–2013, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 148–152. 8  Emma Hunter, Julius Nyerere, the Arusha Declaration, and the Deep Roots of a Contemporary Political Metaphor, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 73. 9  See generally Issa G. Shivji, Pan-Africanism or Pragmatism? Lessons of Tanganyika-Zanzibar Union (2008) (examining the post-colonial international agreement between the two sovereign States that brought about the Union and the subsequent, sometimes difficult political relationship between the two). See also Rob Ahearne, Why Hostilities between Tanganyika and Zanzibar still Challenge Tanzanian Unity, Conversation, May 2, 2017, http://theconversation.com/why-hostilities -between-tanganyika-and-zanzibar-still-challenge-tanzanian-unity-76713 (last visited Feb. 3, 2018). 10  Marie-Aude Fouere, Recasting Julius Nyerere in Zanzibar: The Revolution, the Union and he Enemy of the Nation in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 171. 11  Michael Wambali, The Practice on the Right to Freedom of Political Participation in Tanzania, 9 Afr. Hum. Rts. L. J. 203 (2009) (noting challenges involving the right of independent candidates to stand for office and the independence of the NEC).

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life and the presidential elections take place in October (with the latter on a five-year cycle);12 both the ruling and the opposition party have typically tried to capitalize on his legacy.13 Indeed, Tanzania has experienced generally free and fair, even if sometimes turbulent, presidential elections with universal suffrage and secret ballots over the past 25 years.14 Nyerere was succeeded by Ali Hassan Mwinyi (1985–95, and a native of Zanzibar), Benjamin William Mkapa (1995–2005), Jakaya Mrisho Kikwete (2005–2015, and a Sunni Muslim), and John Pombe Joseph Magufuli (2015-present), all of whom have come from the Chama Cha Mapinduzi (CCM or Revolutionary Party), Africa’s longest ruling political party.15 This has also left concerns about the structural advantages enjoyed by the dominant CCM Party—with its claims to the Nyerere legacy— in the Union government and whether there has been a “level playing field” in the Tanzanian multi-party system.16 Still, Tanzania is noteworthy in the EAC because it has seen four successive presidents peacefully leave office—without trying to amend the Constitution—after his term in office has ended.17

12  Nyerere Day is October 14, the date of his 1999 death. Tanzania typically has a full range of commemorative activities throughout the entire month of October. Marie-Aude Fouere, Julius Nyerere, Ujamaa and Political Morality in Contemporary Tanzania, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 40–45. 13  Id. at 54. 14  The Zanzibari presidential elections have, however, been marred by violence since multiparty politics were introduced in 1995. Tony Karumba, Zanzibar: What You Need to Know About Tanzania’s Troubled Utopia and Its Election Do-Over, Newsweek, Mar. 19, 2016, http://www.newsweek.com/zanzibar-elections-tanzania-john-magufuli-437497 (last visited Feb. 6, 2018). 15  Simon Allison, Tanzania Election Winner Declared Despite Vote-Rigging Claims, The Guardian, Oct. 29, 2015, https://www.theguardian.com/global-development/2015/ oct/29/tanzania-announces-election-winner-amid-claims-of-vote-rigging (last visited Feb. 6, 2018). 16   Kristin d. Phillips, Nyerere’s Ghost: Political Filiation, Paternal Discipline, and the Construction of Legitimacy in Multiparty Tanzania, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 98–126. 17  According to the 1977 Tanzanian Constitution, the President of the United Republic is elected for a five-year term of office and, under art. 40(2), “No person shall be elected more than twice to hold the office of President.” Const. of the U. Rep. of Tanzania (with amendments through 2005). Still, there have been recent calls to amend the Constitution that would allow the President to serve a third term, but current President John Magufuli has rejected that idea. Fumbuka Ng’wanakilala, Tanzania’s Magufuli rejects calls to extend rule beyond two-term limit, Reuters, Aug. 7, 2017, https://www.reuters.com/article/ us-tanzania-politics/tanzanias-magufuli-rejects-calls-to-extend-rule-beyond-two-term -limit-idUSKBN1AN1YT (last visited Feb. 9, 2018).

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In general terms, Tanzania has had a rocky constitutional history since 1961; Tanzania has had five Constitutions and Zanzibar has had three.18 Initially, after independence from the United Kingdom, Tanzania adopted a “Westminster” Constitution with the British monarch as head of state, a Governor General, and an independent judiciary—but without an explicit Bill of Rights.19 This initial Constitution was promptly repealed in 1962 and replaced with a new one featuring a republican government and an executive president. The current (Fifth) Tanzanian Constitution was adopted in 1977 with a strong presidency, a dual-state structure (a Union government and a second, largely autonomous government for Zanzibar); this 1977 Union Constitution has been amended multiple times since, with many amendments concerning the structural relationship between the Union and Zanzibar, the 1992 transition to a multiparty political system, the method for presidential selection, and increasing the role of women in parliament.20 In recent years, however, there have been increasing concerns relating to the power of the president to select members of the NEC and the nature of the Union relationship between the Tanzanian Mainland and Zanzibar.21 In part, this problem relates back to the original 1964 agreement between President Nyerere and Sheikh Abeid Amani Karume; some argue that the original agreement—likely then an international treaty between two sovereign States—was not ratified by the Zanzibari Revolutionary Council and that the Union has arrogated to itself certain matters that had

18  S ee generally Constitutional and Legal System of Tanzania: A Civics Sourcebook 47–62 (Issa G. Shivji, ed., 2004). 19  Tanzania did not incorporate a Bill of Rights into its Constitution until the Fifth (1984) Constitutional Amendment. Id. at 91. Nonetheless, even though this Bill of Rights includes protections against torture and extrajudicial killing, the State organs—such as the police, prison officials, and militias—have been reportedly implicated in such offenses against civilians in recent years. Heilman, Countries at the Crossroads 2012, supra n.1, at 6. See also Luitfried Mbunda, Securing Human Rights Through the Rule of Law in Tanzania, in Human Rights, the Rule of Law, and Development in Africa (Paul Tiyamb Zeleza & McConnaughay, eds., 2004) (arguing that “[c]ontinued violations of human rights in general and individual rights and freedoms in particular in Tanzania is a result of lack of political and moral will by the government for respect of the rule of law, particularly individual rights and freedoms.”) Id. at 146. 20   C onst. of the U. Rep. of Tanzania (2005). 21  Aikande Kwayu, Different ‘Uses of Nyerere’ in the Constitutional Review Debates: A Touchstone for Legitimacy in Tanzania, in Fouere, Remembering Julius Nyerere in Tanzania, supra n.2, at 128–29.

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been left to Zanzibar.22 In 2011 President Kikwete announced that he would form a national commission to collect public views on a new Constitution and, after two drafts, a Constituent Assembly was planned for April 30, 2015.23 That Assembly has, however, been indefinitely postponed over problems stemming from the lack of opposition support and delays in voter registration.24 The 1977 Union Constitution provides that Tanzania is one State and a sovereign United Republic consisting of Mainland Tanzania and a largely autonomous Zanzibar.25 Article 3 provides that the United Republic is a “democratic, secular and socialist state which adheres to multi-party democracy.”26 Article 4(1) provides: 4 (1) All state authority in the United Republic shall be exercised and controlled by two organs vested with executive powers, two organs vested with judicial powers and two organs vested with legislative and supervisory powers over the conduct of public affairs. (2) The organs vested with executive powers shall be the Government of the United Republic and the Revolutionary Government of Zanzibar; the organs vested with judicial powers shall be the Judiciary of the United Republic and the Judiciary of the Revolutionary Government of Zanzibar; and the organs vested with legislative and supervisory powers over public affairs shall be the Parliament of the United Republic and the House of Representatives.27 By reference to a First Schedule, the 1977 Constitution identifies 22 areas that are Union matters (e.g., Foreign Affairs, Defence and Security, Police, Emergency Powers, Citizenship and Immigration), while all areas not listed 22  S ee Shivji, Constitutional and Legal System of Tanzania, supra n.18, at 50–52 (examining the provisions of the Articles of Union). See generally Shivji, PanAfricanism or Pragmatism?, supra n.9. 23   Shivji, Pan-Africanism or Pragmatism?, supra n.9, at 128–140 (examining three proposed structural changes to the Union). See also Fumbuka Ng’wanakilala, Tanzania to hold referendum on new constitution in April 2015, Reuters, Oct. 22, 2014, https:// af.reuters.com/article/topNews/idAFKCN0IB15F20141022 (last visit Feb. 7, 2018). 24   R euters, Tanzania Delays Referendum on Constitution, Apr. 2, 2015, https:// www .voanews.com/a/tanzania-delays-constitution-referendum/2705034.html (last visited Feb. 7, 2018). 25  Zanzibar has a separate, 1984 Constitution that addresses non-union matters. Const. Zanzibar (rev. ed. 2006). 26   C onst. of the U. Rep. of Tanzania (2005), art. 3. 27  Id. art. 4(1).

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are non-union matters that are left to Zanzibar. The Constitution explicitly embraces former President Nyerere’s philosophy of Ujamaa and Self-Reliance, and the 1948 Universal Declaration of Human Rights.28 The Constitution makes no other reference to international law, although it does give Parliament the power to “deliberate upon to ratify treaties and agreements to which the United Republic is a party and the provisions of which require ratification.”29 In general terms, the 1977 Union Constitution recognizes a three-part national structure for the United Republic involving a national Executive that includes the President, Vice President,30 Prime Minister and the Cabinet; a Parliament with a unicameral National Assembly that includes Members from specified categories (e.g., women and Members elected by the Zanzibari House of Representatives); and an independent judiciary. Zanzibar has a Revolutionary Government with an Executive that includes the President and a Revolutionary Council, a House of Representatives, and its own High Court. This overall Union structure creates an institutionalized system of checks and balances with limitations on Union and presidential power, with a parliamentary structure that ensures representation of specified groups, increased autonomy for Zanzibar, and a Bill of Rights that became judicially enforceable in 1987. This 1977 Constitution is a noteworthy improvement over the earlier versions, particularly with respect to the Bill of Rights, although there have been some acrimonious problems with respect to Zanzibar. The 1977 Union Constitution grants the basic rights and duties of citizens; the 1984 Zanzibari Constitution has a Bill of Rights with similar provisions.31 The Constitution recognizes basic civil political rights, such as the right to 28  I d. art. 9. The 1984 Zanzibari Constitution has a broader statement, incorporating “the international treaties on human rights and good governance,” but without further definition. The Revolutionary Government of Zanzibar, Const. of Zanzibar (rev. ed. 2006), art. 10(9). However, the very next sub-section provides that the “provisions of this part in this Chapter shall not be enforced by any court, and all courts in the country shall have no power to decide any matter either to do or not to be done by any person or authority or law or any judgement which is in accordance with the provisions of this part in this Chapter.” Id. art. 10A. 29   C onst. of the U. Rep. of Tanzania (2005), art. 63(3)(e). 30  According to art. 47(3), a person shall be nominated “for the office of Vice-President on the basis of the principle that where the President of the United Republic hails from one part of the United Republic, then the Vice-President shall be a person who hails from the other part of the Union.” Moreover, a Vice President cannot simultaneously serve as a Member of Parliament, the Prime Minister of the United Republic, or the President of Zanzibar. Id. art. 47(7). 31  See generally Const. of Zanzibar (rev. ed. 2006), art. 11–25.

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vote,32 the right to equality,33 the right to life,34 the right to movement in the United Republic,35 the right to freedom of conscience,36 the right of assembly and association,37 and the right to work.38 The Constitution also recognizes that citizens have certain duties, to include the duty to participate in work, to abide by the laws of the country, to safeguard public property, and to defend the nation.39 The Constitution also provides that the rights and duties accorded to individuals are enforceable by any person in the High Court.40 32   C onst. of the U. Rep. of Tanzania (2005), art. 5(1). 33  Id. art. 12–13. Article 13 grants certain due process rights in criminal proceedings, such as the right to a fair hearing, the right to appeal, a presumption of innocence, a prohibition on ex post facto laws, a prohibition against torture or inhuman or degrading punishment or treatment. The Constitution does not guarantee a right to counsel in criminal cases, but a person is entitled to legal aid—if he cannot otherwise afford it—in cases involving murder or treason. Shivji, Constitutional and Legal System of Tanzania, supra n.18, at 244. 34   C onst. of the U. Rep. of Tanzania (2005), art. 14. Tanzanian law does, however, still permit the imposition of the death penalty—by hanging—for murder and treason pursuant to the Penal Code, although the practice has been ended on a de facto basis. Aniceth Gaitan and Bernhard Kuschnik, Tanzania’s Death Penalty Debate: An Epilogue on Republic v. Mbushuu, 9 Afr. Hum. Rts. L. J. 459 (2009) (examining Tanzania’s two distinct cultural heritages, one based upon Christianity and the other based upon Islam, have influenced the country’s death penalty debate). 35   C onst. of the U. Rep. of Tanzania (2005), art. 17(1). 36  Id. art. 18. This freedom of speech is expansive, providing that “Every person—(a) has a freedom of opinion and expression of his ideas; (b) has a right to seek, receive and, or disseminate information regardless of national boundaries; (c) has the freedom to communicate and a freedom with protection from interference from his communication; and (d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society.” 37  Id. art. 20. This article imposes certain limits on political parties that might be useful in a counterterrorism context, but also useful against any separatist (e.g., Zanzibari nationalist) parties. Article 20(2) provides that it shall not be lawful for certain parties to be registered; it proscribes parties which:   (a) aims at promoting or furthering the interests of—(i) any faith or religious group; (ii) any tribal group, place of origin, race or gender; (iii) only a particular area within any part of the United Republic;   (b) advocates for the break-up of the United Republic;   (c) accepts or advocates for the use of the force or violent confrontation as means of attaining its political goals;   (d) advocates or intends to carry on its political activities in only one part of the United Republic; or   (e) does not permit periodic and democratic election of its leaders. 38  Id. art. 22–24. 39  Id. art. 25–28. 40  Id. art. 30(3). According to Professor Shivji, a leading legal scholar at the University of Dar es Salaam Law School, this enforcement procedure has important deficiencies, such as

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The government also retains extraordinary powers to derogate from rights and freedoms through a presidential proclamation of an emergency subject to parliamentary approval.41 The Constitution does not contain limitations on detention after arrest (i.e., habeas corpus), unreasonable bail, search and seizure, or the application of military law to civilians, although some issues have been addressed by statute such as bail,42 habeas corpus,43 and search warrants44 under the 1985 Criminal Procedure Act. Unlike the Union a requirement for a three-judge court (not readily available in all areas of the country) and a provision that permits the court to give the government opportunity to remedy a defective statute rather than simply striking it down (thereby bringing about a further delay in the enforcement of individual rights). Shivji, Constitutional and Legal System of Tanzania, supra n.18, at 96. 41   C onst. of the U. Rep. of Tanzania (2005), art. 31–32. Shivji describes this section as a “widely worded derogation clause which has the potential of limiting the enjoyment of human rights very significantly.” Shivji, Constitutional and Legal System of Tanzania, supra note 18, at 93. Thus, he argues that the clause lacks the limitations found in many other derogation clauses, including requirements that the limitation must be necessary, justifiable in a democratic society, must not undermine the essential content of the right, and must not do greater harm than the evil that it is designed to prevent (i.e., it must pass a proportionality test). Id. at 94. By contrast, the 1984 Zanzibari Constitution has a non-derogation clause that is much more protective of human rights with its provision that human rights and freedoms can be limited “by the law enacted by the House of Representatives if that limitation is necessary and agreeable in the democratic system.” Const. of Zanzibar (rev. ed. 2006), art. 24(1). The Zanzibari House cannot, however, limit the right not to be tortured, inhumanly punished and humiliated. Id. art. 24(1)(a). 42   T he Criminal Procedure Act, art. 32(1), provides that when a police officer has taken a person into custody who is suspected of having committed a crime    “other than an offence punishable with death, the officer in charge of the police station to which he is brought may, in any case, and shall if it does not appear practicable to bring him before an appropriate court within twenty-four hours after he was so taken into custody, inquire into the case and, unless the offence appears to that officer to be of a serious nature, release the person on his executing a bond with or without sureties, for a reasonable amount to appear before a court at a time and place to be named in the bond; but where he is retained in custody he shall be brought before a court as soon as practicable.”   This practice is known as “police bail.” Shivji, Constitutional and Legal System of Tanzania, supra note 18, at 243. However, in cases punishable by death, the criminal suspect “shall be brought before a court as soon as practicable.” The Criminal Procedure Act, art. 32(3). The code also provides that a “police officer in charge of a police station or a court before whom an accused person is brought or appears, shall not admit that person to bail if” that person is charged with certain specified offenses, to include murder, treason, armed robbery, defilement, illicit trafficking in drugs, terrorism offenses under the 2002 Prevention of Terrorism Act, or money laundering. Id. art. 148(5). 43  Id. art. 390(1). 44  A search warrant may be issued by the officer in charge of a police station. Id. art. 38–45.

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Constitution, the 1984 Zanzibari Constitution recognizes the right of a criminal defendant to a speedy trial and “the opportunity of being defended by the advocate of his choice.”45 Neither the 1977 Union Constitution nor statutory law has a prohibition against double jeopardy; in fact, a prosecutor can apparently appeal an acquittal in a criminal case.46 6.2

The Administration of Justice: Courts, Statutes and Issues

The 1977 Union Constitution provides for an independent judiciary for both the United Republic and Zanzibar.47 For the United Republic, the Constitution provides for a High Court with original jurisdiction in all cases, unless a separate court has been created for that specified matter by statute;48 a Court of Appeal to hear disputes arising from a High Court or a magistrate with extended jurisdiction, except for disputes between the United Republic and Zanzibar;49 and a Special Constitutional Court with exclusive jurisdiction over disputes between the United Republic and Zanzibar.50 The High Court has jurisdiction over criminal cases that involve more serious offenses, such as murder, attempted murder, and treason, while the Ward Tribunals, Primary Courts, District Courts, and Resident Magistrate’s Courts typically handle criminal offenses involving a fine or imprisonment of less than 12 months. Tanzania apparently has a separate military statute, with its own courts, but the military courts do not try civilians and military personnel may appeal decisions to the High Court.51 In any case, the High Court is the superior court of record and has unlimited jurisdiction.52 45   C onst. of Zanzibar (rev. ed. 2006), art. 12(6)(f). 46  Ronald J. Allen, et al., Reforming the Law of Evidence of Tanzania (Part One): The Social and Legal Challenges, 31 B. U. Int’l L. J. 217, 234–235 n.117 (2013). See also Ronald J. Allen, et al., Reforming the Law of Evidence of Tanzania (Part Two): Conceptual Overview and Practical Steps, 32 B. U. Int’l L. J. 1 (2014) (examining the need to modernize the Tanzanian code of evidence). 47   C onst. of the U. Rep. of Tanzania (2005), art. 107. 48  Id. art. 108. The High Court hears criminal cases with the aid of two or more lay assessors, as it sees fit. The Criminal Procedure Act, art. 265–274. 49   C onst. of the U. Rep. of Tanzania (2005), art. 117. The Court of Appeal is led by the Chief Justice of the United Republic. Id. art. 118. 50  Id. art. 125–128. 51  Immigration and Refugee Board of Canada, Tanzania: The National Military Legislation, Including Whether Military Service is Compulsory, Penalties for Desertion, Military Courts and the Existence of Alternative Service for Conscientious Objectors, 1990s– September 2001 (Sept. 10, 2001), http://www.refworld.org/ docid/3df4beb80.html (last visited Mar. 2, 2018). 52   Shivji, Constitutional and Legal System of Tanzania, supra n.18, at 226–229.

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For Zanzibar, the Constitution provides for a High Court with limited jurisdiction. The Constitution also creates a Judicial Service Commission,53 a Commission for Human Rights and Good Governance,54 and a Public Leaders’ Ethics Secretariat.55 The 1984 Zanzibari, but not the 1977 Union, Constitution recognizes the role of the Kadhis’ Court,56 which—based upon a 1985 Zanzibari statute—“has exclusive jurisdiction on questions of Muslim law relating to the status, marriage, divorce and inheritance where all parties profess Islam.”57 On Zanzibar, the High Court has unlimited original jurisdiction and appellate jurisdiction from the Ward Tribunals, Primary Courts, District Courts, Regional Magistrate’s Court, and the Kadhis’ Courts.58 And, like its counterparts on the Mainland, the Primary Courts, District Courts, and Resident Magistrate’s Courts typically handle criminal offenses involving a fine or imprisonment of less than 12 months. According to one American legal scholar, with research experience in Tanzania, accessing case law (decisions) can be difficult for lawyers, scholars and the Tanzanian judiciary.59 First, while there has been some progress at developing a national database, it was—as of 2015—incomplete. Second, there 53   C onst. of the U. Rep. of Tanzania (2005), art. 112–113. This Commission advises the President of the United Republic regarding the appointment, discipline, and salaries and remuneration of Judges of the High Court. Article 113A prohibits any Justice of Appeal, Judge of the High Court, a Registrar or magistrate from joining any political party, although that person still retains the right to vote. The 1984 Zanzibari Constitution has a similar provision. Const. of Zanzibar (rev. ed. 2006), art. 97. 54   C onst. of the U. Rep. of Tanzania (2005), art. 129–131. This Commission functions to educate people about human rights, receive complaints of human rights violations, conduct inquiries and research, institute legal proceedings to prevent human rights violations or to restore rights, to inquire into the performance of a person’s official duties, to advise the government and other public institutions on human rights, and to take necessary actions to promote conciliation and reconciliation. 55  Id. art. 132. This Secretariat is headed by an Ethics Commissioner who is responsible for overseeing compliance by public officials with the basic rules of ethics, to include requiring officials to file declarations of income, assets and liabilities; to “prohibit conduct and behaviour which tend to portray that a leader is dishonest, practices favouritism or lacks integrity, or which tends to promote or encourage corrupt practices in public affairs or jeopardizes public interest or welfare”; to prescribe penalties for breaches of the code of ethics; and to prescribe any other provisions that are appropriate or necessary for promoting ethics in government. 56   C onst. of Zanzibar (rev. ed. 2006), art. 103. 57  H. I. Majamba, “Perspectives on the Kadhis’ Courts in Zanzibar” (University of Dar es Salaam Research Repository, 2007), http://hdl.handle.net/123456789/1010 (last visited Feb. 21, 2018). 58   Shivji, Constitutional and Legal System of Tanzania, supra n.18, at 232–234. 59   Allen, Reforming the Law of Evidence of Tanzania (Part One), supra n.46, 241–246.

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can be a long delay between a decision rendered and its publication, with the reporter publishing only some but not all cases. Third, many decisions are not electronically available, making it difficult for a researcher to find relevant case law. It should not, therefore, be surprising that lawyers and judges themselves can be unaware of recent statutory changes—much less case law with precedential value—when trying a case.60 Fourth, even if there is a published decision, it can be difficult to know whether it has an accurate representation of the proceeding. This problem can result from the lack of a court reporter who prepares a full transcript, combined with the judge basing his Englishlanguage (the language of the courts) decision on his own notes from Swahililanguage witnesses. Finally, and understandably enough, “not having a precise record of a witness’s testimony can present problems for reviewing courts.”61 Tanzania has a broad and detailed terrorism statute—applicable to both Mainland Tanzania and Zanzibar—that provides an overall framework for addressing terrorism, proscribes a range of offenses such as rendering support to terrorism and possession of unauthorized articles or information, authorizes a Minister to designate a person “to be a suspected international terrorist” subject to a freezing of assets and travel restrictions, allows for expanded authorities in the investigation and prosecution of a case, and provides extradition and mutual legal assistance.62 Many offenses carries a significant prison sentence, often 15–25 years. Article 4(2) explains that a person commits a terrorist act if he does an intentional act or omission which (a) may seriously damage a country or an international organization; or (b) is intended or can reasonably be regarded as having been intended to (i) seriously intimidate a population; (ii) unduly compel a Government or perform or abstain from performing any act; (iii) seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of country or an international organization; or (iv) otherwise influence such Government, or international orga­ nization; or

60  Id. at 243–44. 61  Id. at 245. 62   T he Prevention of Terrorism Act, 2002.

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involves or causes, as the case may be(i) attacks upon a person’s life which may cause death; (ii) attacks upon the physical integrity of a person; (iii) kidnapping of a person

This broadly-written statute criminalizes an important range of offenses, to including providing or collecting funds to be used in carrying out a terrorist act,63 using or possessing property for the purpose of committing or facilitating a terrorist act,64 soliciting and giving support to terrorist groups,65 harboring persons while having reason to believe that such person committed a terrorist act,66 providing weapons to terrorist groups,67 recruiting of persons for terrorist groups,68 conspiracy to commit terrorism offenses,69 and membership in terrorist groups.70 The 2002 Prevention of Terrorism Act gives expanded authorities for use by police officers—a term that includes police officials, immigration officers, and members of the Tanzanian intelligence service—in investigating offenses. This includes search and seizure authorities, the authority to make ex parte applications to a court for the intercept of communications, and the authority to detain an aircraft or vessel. The statute also provides that no civil or criminal proceeding shall lie against a police officer for certain good faith seizures of property.71 The High Court has exclusive jurisdiction to try cases under this statute72 and it gives the court the authority to try certain extra-territorial offense. One interesting point is that the statute imposes a duty upon all persons to disclose information about the property of terrorist groups.73 In general terms, the statute domesticates Tanzania’s counterterrorism obligations, whether imposed by international treaty or by UN Security Council Resolution (e.g., UNSCR 1373 and 2178).

63  64  65  66  67  68  69  70  71  72  73 

I d. art. 13–14. Id. art. 15. Id. art. 18. Id. art. 19. Id. art. 20. Id. art. 21. Id. art. 24. Id. art. 25. Id. art. 33(8). Id. art. 34(1). Id. art. 40.

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Tanzania has multiple separate statutes that address a range of offenses applicable in a counter-terrorism context. The 1981 Penal Code, applicable only to the Mainland, explicitly criminalizes a wide range of activities that facilitate terrorism, such as acts involving treason,74 promoting warlike undertakings,75 inciting to mutiny,76 seditious intention,77 unlawful oaths to commit offenses,78 unlawful drilling,79 unlawful assembly and riot,80 going armed in public,81 74  The United Republic of Tanzania, The Penal Code, Chapter 16 of the Laws (Revised), 1981, art. 39. Zanzibar has its own penal code with many parallel provisions. The Revolutionary Government of Zanzibar, Penal Decree Act No. 6 of 2004. The Zanzibari Penal Code also proscribes several offenses that are relevant to counterterrorism cases, to include corruption (art. 76), false claims by public officials (art. 80), insults to religion (art. 117), writing or uttering words with an intent to wound religious feelings (art. 121), abuse of religion (art. 122), and promoting enmity between different groups (art. 123). In other words, there are several relevant provisions of the Zanzibari penal code that could be applied—if not vague—to the current frictions between Christians and Muslims on the islands. 75  The United Republic of Tanzania, The Penal Code, Chapter 16 of the Laws (Revised), 1981, art. 43. 76  Id. art. 45. 77  Id. art. 55. This statutory section is likely overly broad and could be used to chill otherwise protected speech made in opposition to the government. Article 55(1) defines seditious intention as an intention to:   (a) bring into hatred or contempt or to excite disaffection against the lawful authority of the United Republic or its Government;   (b) excite any of the inhabitants of the United Republic to attempt to procure the alteration, otherwise than by lawful means, of any other matter in the United Republic as by law established;   (c) bring into hatred or contempt or to excite disaffection against the administration of justice in the United Republic; or   (d) raise discontent or disaffection amongst any of the inhabitants of the United Republic;   (e) promote feelings of ill-will and hostility between different classes of the population of the United Republic. 78  Id. art. 59. 79  Id. art. 62. The section provides that any person who:   (a) without the permission of the Minister for the time being responsible for home affairs trains or drills any other person to the use of arms or the practice of military exercises, movements or evolutions; or   (b) is present at any meeting or assembly of persons, held without the permission of the Minister for the time being responsible for home affairs, for the purpose of training or drilling any other person to the use of arms or the practice of military exercise, movements or evolutions, commits an offence and is liable to imprisonment for seven years. 80  Id. art. 74. 81  Id. art. 84.

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trafficking in persons,82 murder,83 endangering aviation,84 and the solicitation and incitement of crime.85 The 1981 Penal Code also criminalizes certain inchoate acts, to include aiding and abetting,86 procuring or counseling another to commit an offense,87 and a form of conspiracy.88 The 2002 Passport and Travel Document Act, applicable throughout the United Republic, criminalizes the illegal possession and the forgery/altering of passports and travel documents.89 Tanzania has several statutes that supplement the terrorist financing provisions in the 2002 Prevention of Terrorism Act. The 2006 Anti-Money Laundering Act, also applicable throughout the United Republic, establishes a comprehensive national framework; it creates a Financial Intelligence Unit and a National Multi-Disciplinary Committee on Money Laundering, proscribes a range of money laundering offenses, establishes reporting obligations for banks and other financial institutions, and overrides bank secrecy obligations.90 Next, bribery and corruption are addressed in a separate statute applicable only to the Mainland; this statute establishes an independent public oversight body, that is known as the Prevention and Combating of Corruption Bureau with the power to investigate and prosecute cases, defines corruption and related offenses, authorizes and the freezing of assets, and provides for the forfeiture 82  83  84  85 

I d. art. 139A. Id. art. 196. Id. art. 318A. Id. art. 390. See, for example, Pius Rugonzibwa, Tanzania: Chadema Members Arrested for Incitement, Tanzania Daily News (Dar es Salaam), Aug. 27, 2016, http://allafrica.com/ stories/201608290977.html (last visited Feb. 23, 2018). 86  The United Republic of Tanzania, The Penal Code, Chapter 16 of the Laws (Revised), 1981, art. 22(c). 87  Id. art. 22(d). 88  Id. art. 23. This section provides: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 89  The United Republic of Tanzania, The Tanzania Passports and Travel Documents Act, 2002, art. 19.4. 90  The United Republic of Tanzania, The Anti-Money Laundering Act, 2006. See also The United Republic of Tanzania (Financial Intelligence Unit), “Strategy for AntiMoney Laundering and Combating Terrorist Financing,” July 2010–June 2013, available at https://www.fiu.go.tz/TanzaniaNationalAML-CFTstrategy.pdf (last visited Feb. 23, 2018) (assessing anti-money laundering and terrorist financing measures taken by the government, the nation’s vulnerabilities for money laundering and terrorist financing, and the national strategy for addressing the vulnerabilities).

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of corruption proceeds.91 Finally, Tanzania has a thorough extradition statute that addresses the taking of evidence and document production, the rendering of assistance in search and seizure, the arrangement of persons to give evidence or assist in investigations, the custody of persons, and the disposition of the proceeds of crime.92 6.3

The Terrorism Threat to Tanzania: Domestic and Foreign Actors

Like Kenya and Uganda, Tanzania faces a terrorist threat from several different vectors. Tanzania faces threats from foreign terrorist fighters transiting the country, from Islamic groups attacking foreign tourists and diplomatic interests, from domestic groups with political and economic grievances against the government, and involving attacks on its Albino community. While not a direct threat to the country, Tanzania has hosted refugees from both Burundi and Rwanda over the past several decades; refugee camps have served as bases of sanctuary for armed groups to mount attacks against the current government in their countries of origin, raising concerns about regional cooperation in counterterrorism matters. Tanzania has a National Counterterrorism Center (NCTC), an “interagency unit composed of officers from the intelligence, police, defense, immigration, and prison sectors who work collectively on counterterrorism issues.”93 Reportedly, the NCTC has been leading the country’s effort to counter violent extremism through its community-policy program, but the country lacks a Countering Violent Extremism National Action Plan.94 The first, general terrorist threat to Tanzania involves the spread of jihadist (namely al Qaeda and al Shabaab) ideology along the Swahili coast through Kenya and into Tanzania.95 In fact, with eight porous international borders 91  The United Republic of Tanzania, The Prevention and Combating of Corruption Act, Chapter 239. Tanzania has had serious problems with corruption, reaching even into the ranks of the anti-graft officials into the PCCB itself. Fumbuka Ng’wanakilala, Tanzania freezes assets of anti-graft official over suspected corruption, Reuters, May 18, 2017, https://www.reuters.com/article/us-tanzania-corruption/tanzania-freezes-assets-of -anti-graft-official-over-suspected-corruption-idUSKCN18E1I1 (last visited Feb. 27, 2018). 92  The United Republic of Tanzania, The Mutual Assistance in Criminal Matters Act, Chapter 254 (1994). 93   U.S. Department of State, Country Reports on Terrorism 2016—Tanzania, July 19, 2017, available at: http://www.refworld.org/docid/5981e412c.html (last visited Mar. 2, 2018). 94  Id. 95  News Desk, Analysis: Tanzania’s Arrest of Militants Highlights an Ongoing Jihadist Threat, Somalia Newsroom, Apr. 20, 2015, https://somalianewsroom.com/2015/04/20/ analysis-tanzanias-arrest-of-militants-highlight-an-ongoing-jihadist-threat/ (last visited

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and a long stretch of the Swahili coast, the country has served as a transit point for regional travel. While many people, if not most, probably flee the Horn of Africa for reasons of personal security in the face of on-going violence in Somalia and Kenya, this flow also permits travel by foreign terrorist fighters and raises concerns over Tanzania’s obligations under UN Security Council Resolutions 1373 and 2178. Indeed, Islamic terrorists often seek safe haven in the coastal region and to radicalize their sympathetic Tanzanian brethren.96 On one hand, there is ample evidence of foreign financial support—largely from the Arab Gulf States—to Muslim groups in Tanzania,97 efforts by Tanzanian Islamists to attack local Christian leaders and to support a global jihad,98 and Muslim-Zanzibari challenges to the Union government. One illustrative case involved Sheikh Ponda Issa Ponda, the leader of a network of hundreds of mosques and Islamic schools through the country, who was arrested by the Tanzanian government of incitement based upon his inflammatory speeches.99 A second illustrative example involves the Ansar Muslim Youth Centre (AMYC), led by a sheikh who has been connected to al Hijra, the al Shabaab affiliate in Kenya, as well as al Shabaab itself in Somalia.100 On the other hand, there have been reports of sympathetic Tanzanian nationals engaging in violence as foreign terrorist fighters, particularly in support of al-Shabaab operations in Kenya and Somalia.101 This indicates the importance of strong border and immigration controls, as well as the need for a national plan for countering violent extremism. The second, general terrorism threat to Tanzania involves possible low-level attacks against diplomatic facilities in Tanzania, much like the 1998 attack on the U.S. Embassy in Dar es Salaam, or attacks against Western tourists. In fact, Feb. 14, 2018). One good example of this involves Rashid Mberesero, a Tanzanian national who was arrested in connection with the 2015 attack on Garissa University College in Kenya. Vincent Agoya, Garissa University Terror Attack Suspect suffers Mental Breakdown in Prison, Daily Nation (Nairobi), Oct. 12, 2016, https://www.nation.co.ke/news/ Garissa-university-terror-attack-suspect-unfit-to-stand-trial/1056-3414082-1deh20/index .html (last visited Feb. 14, 2018) (noting that the defendant was charged with illegal entry into Kenya and 162 counts of terrorism). 96  Asterius Banzi, Tanzania: Dar On ‘High Alert’ Over Terror Attack Claims, AllAfrica, Apr. 22, 2017, http://allafrica.com/stories/201704230031.html (last visited Feb. 13, 2018). 97  Andre Le Sage, The Rising Terrorist Threat in Tanzania: Domestic Islamic Militancy and Regional Threats, 288 Strategic Forum (Sept. 2014), at 8. 98  Id. at 6 (providing a useful table of 28 separate Islamist attacks in Tanzania during the period Nov. 2011 to July 2014). 99   B BC News, Tanzanian Muslim cleric Ponda Issa Ponda arrested, Oct. 17, 2012, http://www .bbc.com/news/world-africa-19982023 (last visited Feb. 9, 2018). 100  Le Sage, The Rising Terrorist Threat in Tanzania, supra n.97, at 10–11. 101   U.S. Department of State, Country Reports on Terrorism 2016, supra n.93.

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one of the most consequential terrorist attacks to take place on Tanzanian soil occurred on August 7, 1998. This attack against the U.S. Embassy in Dar es Salaam, timed to coincide with a near simultaneous attack at the U.S. Embassy in Nairobi, killed 10 Tanzanians and injured at least 70 persons.102 Both attacks involved truck bombs that exploded near the embassy entrance; in the Dar es Salaam attack, the bomb had apparently been attached to an embassy-owned tanker truck that was delivering water.103 Initially, on August 11, 1998, the Tanzanian police arrested 30 foreign nationals in connection with the attack, including six Iraqis, six Sudanese, a Somali and a Turk; 14 persons did not have a passport and could not explain their presence in Tanzania. Other members of the conspiracy managed to flee to Pakistan, Europe and South Africa, and were eventually extradited to the United States. On September 21, 1998, Mustafa Mahmoud Said Ahmed (an Egyptian national) and Rashid Saleh Hemed (a Zanzibari native) were charged by Tanzanian authorities with 11 counts of murder.104 On October 8, 1999, Tanzanian national Khalfan Khamis Mohamed, who had been arrested days earlier in South Africa, was indicted in a federal district court in New York on charges of murder and conspiracy.105 Eventually, on December 22, 2004, the Tanzanian High Court freed Hemed based upon an insufficiency of evidence to connect him to the attack.106 The 1998 embassy bombing attack raises several important points for Tanzanian law and practice, particularly as it relates to the need for increased international cooperation in the investigation and prosecution of a modern terrorism case. The case illustrates the need for various points mandated by UNSCR 1373, to include the need to improve border controls and controls on identity documents, to establish terrorist acts as crimes and to prosecute cases, and to provide mutual legal support in an investigation, extradition and prosecution of a suspect. Tanzania has, however, clearly modernized its counter-terrorism legal framework subsequent to this attack, particularly with its 2002 Prevention of Terrorism Act, 2002 Passport and Travel Document Act, and 2006 Anti-Money Laundering Act.

102   Edward F. Mickolus & Susan L. Simmons, The 50 Worst Terrorist Attacks (2014), 113. 103  Id. at 114. 104  Id. at 115. 105  Id. at 116. 106   I OL News, Tanzanian Embassy Bombing Suspect Walks Free, Dec. 22, 2004, https:// www.iol.co.za/news/africa/tanzanian-embassy-bombing-suspect-walks-free-230160 (last visited Feb. 13, 2018).

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Also, Zanzibaris have complained that Western tourists are insensitive to Muslim social practices, raising the prospect of local attacks. This could involve attacks against local Christian leaders, as well as attacks against bars, hotels and restaurants popular among tourists.107 The lead opposition group is Uamsho (the Association for Islamic Mobilization and Propagation), a group with links to the Nigerian Islamic group Boko Haram that was originally formed as a non-government organization in 2001; the group has a Zanzibari-nationalist orientation and connections with the opposition political party Civic United Front (CUF).108 This group has organized riots, including setting fire to churches and clashing with police,109 often protesting a lack of employment and educational opportunities, and its leaders have charged with inciting violence.110 According to press reporting, the “chairman of Uamsho’s board of trustees, Abdulrahim Salim, says the organization is looking for peaceful ways to gain full independence for Zanzibar. He denied Uamsho wants Zanzibar to be an Islamic state.”111 In addition, the Tanzanian police have arrested two 107   A FP, Man Stabs Six, including Tourists, in Zanzibar, East African, May 30, 2018, http:// www.theeastafrican.co.ke/news/Man-stabs-six-in-Zanzibar/2558-3948194-bx9qs5/index .html (last visited Feb. 13, 2018). 108  For example, after the Zanzibar Electoral Commission (ZEC) annulled results of the October 25, 2015, presidential elections, the CUF called for passive resistance to the newly installed CCM government led by Ali Mohammed Shein. In turn, the new Zanzibari president accused the “CUF of inciting people to violently oppose the government, adding that remarks by [its chairman and secretary general] amounted to a call for a rebellion against a legitimate government.” Athuman Mtulya, Tanzania: Civic United Front Calls for ‘Passive Resistance’ in Zanzibar, All Africa, Apr. 5, 2016, http://allafrica.com/ stories/201604050789.html (last visited Feb. 14, 2018). According to Amnesty International, there has been increased infringement of civil and political liberties in Tanzania after the 2015 election, to include “the banning of political rallies, the arrest of journalists and politicians, excessive use of force by the police, and banning of media outlets as having painted the country with a bad image pertaining to human rights issues.” Saumu Mwalimu, Human Rights Abuses Rampant in Tanzania, says new report, The Citizen (Dar es Salaam), Apr. 23, 2017, http://www.thecitizen.co.tz/News/Rights-abuses-rampant -in-Tanzania--new-report-says/1840340-3900286-g6mt4jz/index.html (last visited Feb. 23, 2018). 109  Fumbuka Ng’wanakilala, Zanzibar Islamists Burn Churches, Riot—Police, Reuters, May 27, 2012, https://www.reuters.com/article/zanzibar-protest/zanzibar-islamists-burn -churches-riot-police-idUSL5E8GR1HB20120527 (last visited Feb. 14, 2018). 110  Munir Zakaria, Zanzibar Separatist Group Leaders Charged with inciting Violence, Reuters, Oct. 22, 2012, https://www.reuters.com/article/us-tanzania-zanzibar -separatists/zanzibar-separatist-group-leaders-charged-with-inciting-violence -idUSBRE89L0XR20121022 (last visited Feb. 13, 2018). 111   I RIN, Islamist Riots threaten Zanzibar’s Stability, Oct. 24, 2012, http://www.irinnews.org/ report/96631/tanzania-islamist-riots-threaten-zanzibars-stability (last visited Feb. 13, 2018).

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suspects in a notorious 2013 acid attack on two British teenagers who had been working as volunteer teachers; both suspects reportedly belong to Uamsho.112 There is no evidence with respect to a lack of legal authorities (Union or Zanzibari) to address this crime/terrorism; instead, the important issues for Zanzibaris involve political autonomy and respect for local traditions within the Union structure. The third, terrorism threat to Tanzania involves domestic actors with local support against the government. For example, there have been long-standing disputes between the government and indigenous groups over land and mineral rights. In 2009, there were problems with a widely-publicized case in which the government tried to evict the Maasai from ancestral lands; the overall conflict had been simmering for over 20 years and involved land had been transferred to a safari company for tourist purposes.113 Fortunately, the Tanzanian prime minister intervened and declared that there would be no evictions of the Maasai.114 More recently, the discovery of helium gas in Tanzania’s Rift Valley has raised concerns about new conflicts.115 Generally, these disputes illustrate the competing interests of local groups to ancestral lands and a government focused on national economic development. Nonetheless, a well-meaning but heavy-handed approach to local grievances can lead to more unrest and smallscale attacks against foreign business interests and government officials. The fourth, general terrorism threat to Tanzania involves minority groups that face discrimination. Like Burundi, Tanzania has a large Albino community, and many persons have been discriminated against, attacked, and killed by “witches” for body parts.116 In turn, this can bring about acts of vigilante justice by local villagers against the women suspected of witchcraft. In fact, Tanzania’s 112  Nick Gutteridge, Two Terror Suspects linked to ISIS in court over Horrific Acid Attack on British Teenagers, Express, Sept. 14, 2015, https://www.express.co.uk/news/ world/605058/Islamic-State-ISIS-terrorist-Boko-Haram-acid-attack-British-teenagers -Zanzibar (last visited Feb. 13, 2018). 113  Maanda Ngoitiko & Fred Nelson, What Africa can learn from Tanzania’s remarkable Masai lands rights victory, The Guardian, Oct. 8, 2013, https://www.theguardian.com/global -development/poverty-matters/2013/oct/08/africa-tanzania-masai-land-rights-victory (last visited Feb. 13, 2018). 114  Id. 115  Global Risk Insights, Giant Helium Find May Spell Trouble for Tanzania, July 2, 2016, https:// oilprice.com/Geopolitics/Africa/Giant-Helium-Find-May-Spell-Trouble-For-Tanzania .html (last visited Feb. 13, 2018). 116   T he 1981 Penal Code, art. 222A, criminalizes the possession of human body parts. The code provides that “[any] person who is found in unlawful possession of human being parts commits an offence and shall upon conviction be liable to imprisonment for a period not exceeding thirty years.”

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Albino population may number over 30,000 persons, many living on Ukerewe island on Lake Victoria which has served as a safe haven.117 According to 2015 press reporting, “Frightened neighbors-cum-vigilantes lynched, stoned or hacked more than 1,000 women to death last year, according to [two human rights groups]. The groups estimate more than 3,000 suspected witches, usually late middle-age and older women, were killed in the past six years alone.”118 This raises rule of law concerns in rural areas, both in terms of terror attacks against the Albino community as well as against persons suspected of witchcraft. Finally, Tanzania has been host to one of the largest refugee populations in Africa over the past several decades, with the largest number of persons coming from Burundi, Rwanda and other East African states. While such refugees do not typically pose a direct terrorism threat to Tanzania, the refugee camps have—at least in the past—served as bases for organized armed groups to conduct terrorist attacks back into the country of origin (e.g., Burundi or Rwanda).119 According to the International Rescue Committee, Tanzania currently has a refugee population in excess of 250,000, with many persons seeking refugee from the current crisis in Burundi.120 This raises a range of issues for Tanzanian officials, including food, health, sanitation and security.121 6.4

Counterterrorism Assessment and Recommendations

Tanzania faces an emerging terrorist threat, largely relating to the connections between regional Islamist organizations and the country’s large Muslim community; this raises several important issues. Initially, the Government of Tanzania should conduct its on-going constitutional reform process in an open and inclusive manner that forthrightly addresses Zanzibari concerns over 117   B BC News, Tanzania’s albino community: ‘Killed like animals’, Dec. 9, 2014, http:// www .bbc.com/news/world-africa-30394260 (last visited Feb. 23, 2018) (citing over 70 killings in prior three years, but only ten convictions for murder). 118  Tonny Onyulo, Witch Hunts increase in Tanzania as Albino Deaths Jump, USA Today, Feb. 26, 2015, https://www.usatoday.com/story/news/world/2015/02/26/tanzania -witchcraft/23929143/ (last visited Feb. 9, 2018). 119   X inhua, Tanzania Faces Refugee Problems, Jan. 17, 2000, https://reliefweb.int/report/ burundi/tanzania-faces-refugee-problems (last visited Feb. 13, 2018). 120   I nternational Rescue Committee Website, https://www.rescue.org/country/ tanzania (last visited Feb. 13, 2018). 121   M SF, Tanzania: Voices from Nduta and Nyarugusu Refugee Camps, Feb. 17, 2017, http:// www.doctorswithoutborders.org/article/tanzania-voices-nduta-and-nyarugusu-refugee -camps (last visited Feb. 13, 2018).

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political autonomy. This process must include renewed emphasis on the 1984 Bill of Rights, the independence of the judiciary, and the rule of law generally. The Government should also refrain from heavy-handed police responses to civil disturbances and minor outbreaks of violence that could add fuel to an already combustible situation, in effect creating new grievances against the government that could only contribute to a worsening situation. In any event, the Government must examine the terrorist threat on a regional level, to include the regional issues that give rise to terrorism (e.g., its support to the African Union Mission in Somalia), and the international facilitation networks (i.e., foreign fighter travel and international financing). Tanzania likely has the strongest laws on counter-terrorism in the East African Community, apparently passed shortly after the 9/11 attacks on the United States and modeled after the USA PATRIOT Act.122 The 2002 Prevention of Terrorism Act is broad, detailed and generally consistent with prevailing international norms. This statute is supported by strong investigative authorities for use by police and prosecutors, a denial of bail in terrorism cases, and a wide-range of offenses punishable by significant prison terms. Finally, Tanzania has a thorough statute that addresses international cooperation in the investigation, extradition, and prosecution of a criminal suspect. Still, there are three important areas that Tanzanian law could be enhanced, both in its effectiveness and fairness, by either constitutional or statutory amendment. First, Tanzania should ratify the 1984 Convention against Torture and eliminate abusive police practices. On one hand, the Union Constitution recognizes that a person has a right not to be “subjected to torture or inhuman or degrading punishment or treatment,” applicable throughout the union,123 but this right is not observed by the police and security services. In fact, Human Rights Watch reports that “Tanzanians, including those who are marginalized and most vulnerable in society, are sometimes tortured and ill-treated by police officers, and often have no recourse to justice.”124

122  The statute is formally known as The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Public Law 107–56, 107th Congress. According to some sources, the United States pressured Tanzania to pass its statute. Zaima Media Network, The Prevention of Terrorism Act of 2002, Oct. 4, 2015, https://zanzibardaima.net/2015/10/04/the-preventionof-terrorism-act-of-2002/ (last visited Mar. 2, 2018) (reporting that some believe the Tanzanian statute to have an anti-Muslim bias). 123   C onst. of the U. Rep. of Tanzania (2005), art. 13(6)(e). 124  Neela Ghoshal, Tanzania’s Victims of Torture, Human Rights Watch, June 26, 2013, https:// www.hrw.org/news/2013/06/26/tanzanias-victims-torture (last visited Mar. 2, 2018).

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Second, Tanzania should enact a clear rule on when attachment occurs in criminal cases (viz., Tanzania should follow the American,125 rather than the Ugandan, rule with attachment occurring with the swearing of the first witness). This means that a prosecutor should not be permitted to appeal an acquittal or retry a criminal case, except perhaps on a strictly legal issue, as it can be done in the United States under the Federal Rules of Criminal Procedure.126 Currently, the Tanzanian Code of Criminal Procedure provides that a “person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.”127 Thus, Tanzanian law prohibits double jeopardy. But, attachment apparently occurs only a completed trial, permitting the Director of Public Prosecutions (DPP) to appeal a judgment of acquittal in the High Court.128 For example, in one 2013 case, the DPP tried a case against Abdallah Zombe and eight other police officers who had been accused of the 2006 killing of four people. But after a full trial in the High Court, with the prosecutor calling 37 witnesses and producing 23 exhibits, the trial judge entered an acquittal based upon an insufficiency of the evidence. In fact, the trial judge held that the defendants were not the persons who had committed the murders. Nonetheless, the DPP appealed that decision and the Court of 125   Crist v. Bretz, 437 U.S. 28 (1978) (holding that the “federal rule that jeopardy attaches in a jury trial when the jury is empaneled and sworn, a rule that reflects and protects the defendant’s interest in retaining a chosen jury, is an integral part of the Fifth Amendment guarantee against double jeopardy”). 126  Rule 29 permits the government to appeal an acquittal in certain cases (i.e., after a trial judge grants a defense motion for an acquittal based upon legal issues after a jury verdict). This is also consistent with the decision of the U.S. Supreme Court in United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) (holding that “the ‘controlling constitutional principle’ of the Double Jeopardy Clause focuses on prohibitions against multiple trials, … and where an appeal by the Government presents no threat of successive prosecutions, the Clause is not offended”). 127   T he Criminal Procedure Act, art. 137. 128  Note, however, that the High Court has the power of revision over subordinate courts. Thus, “[t]he High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court.” Id. art. 372. This power of revision over subordinate courts, in which trier of fact may not have been an attorney or the accused may not have had the assistance of counsel, may be entirely appropriate, but the power of the DPP to appeal an acquittal after a full trial in the High Court, with the Court of Appeal having the full power to substitute its own judgment and impose the death penalty, is an entirely different matter.

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Appeals overturned the acquittal of one defendant, to include finding him the “architect” of the entire incident; the Court set aside the acquittal, found him guilty of four murders, and sentenced him to death by hanging.129 In short, the Court of Appeals reviewed the entire case file, not merely for errors of law but also reaching its own interpretations of the evidence, and entered a new judgment. Third, Tanzanian law should explicitly recognize—and enforce—the right to a speedy trial. Generally, this right is considered a crucial guarantee because “undue delay may cause the loss of evidence or the fading memories of the witnesses.”130 First, Tanzania has an obligation under the ICCPR to ensure this right to a criminal defendant. Article 14(3) provides that: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (c) [t]o be tried without undue delay….”131 Second, the African Charter on Human and Peoples’ Rights, also guarantees a speedy trial right. Article 7(1) (d) guarantees an accused person has “the right to be tried within a reasonable time by an impartial court or tribunal.”132 But, the 1977 Union Constitution, article 13(6), provides only that an accused “person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned….”133 Thus, while one could argue that the right to a speedy trial is implied under Tanzanian law, that right should be made explicit and enforceable in its courts.134 129  Director of Public Prosecutions v. ACP Abdallah Zombe and 12 Others (Judgment), Criminal Appeal No. 358 (2013). 130   P rosecuting Maritime Piracy: Domestic Solutions to International Crimes (Michael P. Scharf, ed., 2015), 173. 131   T he International Covenant on Civil and Political Rights (ICCPR), adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of Dec. 16, 1966, entered into force Mar. 23, 1976. 132  African Charter on Human and Peoples’ Rights (the Banjul) Charter, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986. U.N. Treaty Collection, https://treaties.un.org/ (last visited Nov. 2, 2017). 133   C onst. of the U. Rep. of Tanzania (2005), art. 13(6)(a). 134  In turn, the Tanzanian courts could consider two means of adjudicating the speedy trial right. One means of assessing whether a violation had occurred would involve the application of the multi-factor test used by the International Criminal Tribunal for Rwanda in the Bagosora case. Here, the ICTR examined the “length of the delay [in bringing the case to trial], the gravity, nature and complexity of the case, as well as any prejudice that the accused may suffer.” Brian Farrell, The Right to a Speedy Trial before International Criminal Tribunals, 19 S. Afr. J. Hum. Rts. 98, 112 (2003) (citing Prosecutor v. Bagosora, Case No. ICTR-96-7-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, 5 (Aug. 12, 1999)). A second alternative would be the abuse of process

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The Tanzanian courts have recognized this problem in serious cases, likely as the result of ineffective case investigations and leading to prison congestion;135 in any case, this right should be recognized by a constitutional amendment. Nonetheless, even on Zanzibar with its recognition of the right to a speedy trial, the criminal justice system has been characterized by arbitrary detention inordinate delays. According to the annual report by the Zanzibar Legal Services Centre, the accused has a constitutional right to a speedy trial, but that right is frequently not enforced by the courts: “Bearing in mind Zanzibar’s unedifying record of long pre-trial detentions and inordinate delays in trials, this [Zanzibari constitutional right, art. 12(6)(e)] has generated a great deal of controversy in criminal trials. The relevant subsection which provides for the right to be tried in court with speed does not define the time ‘speed’ within the context of the provision. It is then left to the Zanzibar courts to interpret the phrase.”136 doctrine, as recognized by the ICTR in Barayagwiza v. Prosecutor as an inherent power of a court. Here, the ICTR explained that, “[u]nder the doctrine of ‘abuse of process,’ proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process.” Barayagwiza v. Prosecutor, Case. No. ICTR-97-19, Decision, para. 74 (Nov. 3, 1999). 135  Faustine Kapama, Court limits murder case investigations to two years, Daily News, Oct. 27, 2017, https://dailynews.co.tz/index.php/home-news/53800-court-limits-murder -case-investigations-to-two-years (last visited Mar. 2, 2018). 136  Zanzibar Legal Services Centre, Zanzibar Human Rights Report 2015, para. 2.5.1, Zanzibar, 2015, www.zlsc.or.tz/documents/ZANZIBAR%20HUMAN%20RIGHTS%20REPORT%20 2015%20BY%20ZLSC.pdf (last visited Mar. 2, 2018).

Chapter 7

Towards Community Integration 7.1

Introduction: the Fundamental Principle of Increased Political Legitimacy

This chapter provides findings with respect to gaps and inconsistencies in counter-terrorism law and practice in the East African Community (EAC), both at the regional and municipal levels. This chapter also offers specific findings, to include the need to ratify/accede to certain international treaties by individual EAC Partner States, the need to implement certain provisions of UN Security Council Resolutions (UNSCRs) 1373 and 2178, gaps in community-wide extradition law and practice, shortcomings in the choice of law (international human rights or international humanitarian law), the application of military law to civilians, and problems with the lack of a statute of limitations in terrorism cases. This chapter also offers several specific recommendations, to include the use of community-wide arrest warrants, the possible use of a preventative detention regime, the use of letters rogatory in international terrorism investigations, and a regional mutual legal assistance treaty. The EAC fight against terrorism must be premised upon the fundamental principle of increased political legitimacy in its integration project; this means that the EAC Partner States must respect the rule of law while advancing important national security interests. In fact, the EAC Partner States should seek greater “synchronicity,” using a multi-faceted range of legal instruments, to deter, disrupt, degrade, and destroy regional terrorist organizations and terrorists.1 Synchronicity in counterterrorism operations proceeds from the premise that there is “no single silver bullet,” and that the effective reduction of the threat posed by modern terrorists and terrorist organizations requires a reasoned government process involving the constant engagement of various tools, both at the regional and national level, that can act in concert to achieve an optimum reduction in the threat.

1  Jeff Breinholt, Seeking Synchronicity: Thoughts on the Role of Domestic Law Enforcement, 21 Am. U. Int’l L. Rev. 2, 157–189 (2005).

© koninklijke brill nv, leiden, 2019 | doi:10.1163/9789004389892_008

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Key Findings and Recommendations

Finding 1. The EAC Partner States have significant gaps in the ratification/ accession to and domestication of the key human rights treaties that have particular relevance to counter-terrorism (see Tables 1–3, supra). Here, there are several important gaps in the international legal obligations assumed by the Partner States; the existence of such gaps raises concerns about compliance with human rights norms while creating possible obstacles to international legal cooperation. The remaining EAC Partner States should ratify/accede to the 1948 Genocide Convention, the 1996 International Covenant on Civil and Political Rights (ICCPR), the 1979 Hostage Taking Convention, the 1984 Torture Convention, the 1997 Terrorist Bombing Convention, the 1999 Algiers Convention, the 2002 Terrorism Financing Convention, the 2006 Convention on Enforced Disappearances, and the 2013 Arms Trade Treaty. One regional, cooperative effort, involving the UN Development Programme on Small Arms and Light Weapons, should be reinforced; both Kenya and Uganda have had serious problems with weapons imported from South Sudan, Sudan, Ethiopia and Somalia, which can be used to facilitate terrorist operations. In other words, by assuming and then domesticating harmonized international legal obligations, the Partner States would set the stage for more effective international legal cooperation with respect to the investigation and prosecution of terrorism cases. Finding 2. The EAC Partner States have made some progress in the community-wide implementation of UN Security Council Resolutions 1373 and 2178 (see Tables 4-A and 4-B, supra), but still have some significant gaps with respect to the provisions on border controls, control over identity documents, preventing the entry and transit of foreign terrorist fighters, the exchange of advanced passenger information, and efforts to counter violent extremism. Indeed, the UN Security Council has reinforced the need for continued international cooperation,2 as well as stressing that Member States “have the primary responsibility in countering terrorist acts and violent extremism conducive to terrorism.”3

2  S .C. Res. 2322 (On International Cooperation), S/RES/2322, adopted Dec. 12, 2016 (calling upon States to share information about terrorists and terrorist organizations; to establish as a serious criminal offense the willful violation of prohibitions against terrorist financing, recruitment, training and travel; to extend mutual legal assistance to other States in criminal investigations and prosecutions; and to ensure that refugee status is not abused by terrorists). 3  S .C. Res. 2396 (On Returning Foreign Fighters), S/RES/2396, adopted Dec. 21, 2017 (acting under Chapter VII and urging States to ensure that their domestic laws and regulations

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First, in November 2009, the EAC Partner States ratified the Protocol on the Establishment of the EAC Common Market which entered into force in July 2010.4 This protocol recognizes four freedoms, the free movement of goods, labor, services, and capital; while the four freedoms are intended to boost trade and investments and to make the region more productive and prosperous, the four freedoms also raise important security issues. Thus, it is imperative that the Partner States implement strong controls with respect to national identity cards and travel documentation, the foreign national entry into and exit from the EAC, the movement of money (i.e., money laundering controls, particularly involving hawala money exchanges), corruption at ports of entry, and the movement of goods through smuggling networks that can facilitate terrorist operations. Second, one positive step by the EAC Partner States involves the new community-wide electronic passport that will replace national-level docu­ ments by December 2018.5 Reportedly, the new digital passport is more secure and harder to counterfeit that its predecessor, thereby easing legitimate travel and curtailing foreign fighter movements. Third, the EAC must adopt measures, consistent with international human rights, refugee, and international humanitarian law, to prevent violent extremism. In fact, the UN Global Counter-Terrorism Strategy addresses four important pillars: a) tackling the conditions conducive to terrorism, b) preventing and combating terrorism, c) building countries’ capacity to combat terrorism, and d) ensuring respect for human rights and the rule of law in combating terrorism.6 Thus, the recent effort by the Intergovernmental Authority of Development (IGAD) with respect to the development of a regional strategy focused on preventing and countering violent extremism is a step in right direction and one that should be reinforced.7 In particular, the EAC establish serious criminal offenses sufficient to prosecute and penalize the travel, recruitment, and financing of foreign terrorist fighters). 4  Kennedy Gastorn & Wanyama Masinde, The EAC Common Market, in East African Community Law: Inspirational, Substantive and Comparative EU Aspects 285 (Emmanuel Ugirashebuja, et al., eds., 2017). See also Protocol on the Establishment of the East African Community Common Market, entered into force July 2010. 5  James Karuhanga, East Africa: New EAC e-Passport to Be Used from January 2017, New Times, Mar. 3, 2016, http://allafrica.com/stories/201603030157.html (last visited Nov. 7, 2017). 6  U.N. General Assembly, “The United Nations Global Counter-Terrorism Strategy,” U.N. Doc. A/RES/60/288 (Sep. 20, 2006). 7  U NDP (Uganda), Regional efforts key for preventing and responding to violent extremism in the East and Horn of Africa, Aug. 29, 2016, http://www.ug.undp.org/content/uganda/en/home/ presscenter/articles/2016/08/29/regional-efforts-key-for-preventing-and-responding-to -violent-extremism-in-the-east-and-horn-of-africa-.htmlhttp://www.ug.undp.org/content/

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Partner States must identify the political, social, and economic issues that give rise to violent extremism in the region and identify cooperative approaches that can ameliorate/mitigate the threat. Here, both the UN Development Programme and the Global Counterterrorism Forum (GCTF) working groups8 have done important work in terms of identifying key issues and in building national-level capacity to counter the evolving terrorist threat. In any case, the UN Secretary General has stressed that government responses to violent extremism must be consistent with international human rights obligations.9 Finding 3. The EAC Partner States have significant shortcomings with respect to extradition law and practice; in fact, this practice is governed by a framework in international and East African national law that leaves unanswered questions, creating a risk of abuse involving a person who may or may not be guilty of the charged crimes.10 This can lead to legal risk in that    uganda/en/home/presscenter/articles/2016/08/29/regional-efforts-key-for-preventing -and-responding-to-violent-extremism-in-the-east-and-horn-of-africa-.html (last visited Oct. 28, 2017). 8  Global Counterterrorism Forum (Website), https://www.thegctf.org/. The GCTF has five working groups: Countering Violent Extremism, Foreign Terrorist Fighters, Criminal Justice and the Rule of Law, Capacity-building in the East Africa Region, and Capacitybuilding in the West Africa Region. The East African Region Working Group is chaired by Egypt and the European Union, and is focused on “(i) Countering Terrorist Financing; (ii) Returning FTFs and/or Returning Families of FTFs; (iii) Border Security Management; (iv) Police Cooperation; (v) Preventing/Countering Violent Extremism National Action Plans (P/CVE NAPs); (vi) The Integration of Gender Perspectives in CT responses; (vii) Legislative Frameworks.” Id. This working group does not, however, include either Burundi or Rwanda, but includes Djibouti, Ethiopia, Kenya, Somalia, Sudan, Tanzania, Uganda and Yemen; thus, this working group provides a useful forum for issues involving Islamic extremism and the regional threat emanating from Somalia. 9  U.N. Secretary General, “Plan of Action to Prevent Violent Extremism,” UNGA, A/70/674, (Dec. 24, 20150, paras. 44–45. The U.N. Development Programme has also conducted useful research regarding the economic and religious drivers that influence the terrorist recruitment process which could help inform the preparation of national-level plans. UNDP, Journey to Extremism in Africa (2017). 10  In U.S. law and practice, the courts have generally held that the transfer of a suspect— outside the processes established by an extradition treaty—does not in itself preclude a person’s prosecution and conviction for a previously committed crime once that person has reached the United States. The courts will, however, consider whether any abuses occurred during the transfer and custodial interrogation, and will exclude any unreliable evidence. Also, while a trial court may permit the instant prosecution to go forward, that does not preclude the prosecution of the kidnappers in the jurisdiction where that crime was committed. Compare Ker v. Illinois, 119 U.S. 436 (1886) (affirming the conviction of a defendant who had been kidnapped in Peru and brought to the United States for trial), with Frisbie v. Collins, 342 U.S. 519 (1952) (the kidnapping of a defendant in one state does not invalidate his conviction in a second state). See also United States v. Toscanino,

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unreliable evidence may be used to extradite someone who is not culpable of a criminal offense.11 In addition, it can also lead to legal risk in that culpable persons may escape prosecution because of abuses that may occur during the transfer and interrogation of the accused, with judges finding certain evidence inadmissible or unreliable.12 This creates political risk in that policymakers and law enforcement officials may face mounting criticism from civil society groups as a result of controversial practices against persons who pursue political, religious or ideological goals through violent (i.e., terrorists) or non-violent (e.g., out-of-favor opposition groups) means. Thus, while the international community has adopted broad, principled statements in human rights instruments that may resonate well with public interest groups, these efforts—without effective implementing law at the national level—cannot

500 F.2d 267 (2d Cir. 1974) (the defendant alleged unlawful wiretapping, kidnapping and torture by American agents in Uruguay; the case was remanded to the district court for an evidentiary hearing). In the Omar Awadh case, the Uganda Constitutional Court followed the Ker-Frisbie doctrine. Omar Awadh & 10 Ors v. Attorney General (2014) UGCC 18. The court noted that any alleged illegalities occurred abroad, without any active Ugandan involvement, and that the Ugandan authorities did not violate any foreign states’ sovereignty; all actions had occurred with the full cooperation of the governments of Kenya and Tanzania. Thus, the court would not consider any allegations of improprieties that may have occurred before the suspects were transferred to the Ugandan authorities. See generally Jonathan A. Bush, How Did We Get Here? Foreign Abduction After AlvarezMachain, 45 Stan. L. Rev. 939 (1993) (calling for the regulation of foreign abductions through legislation by divesting the courts of jurisdiction, but noting that there are some situations in which the practice might be permissible). 11  In the case of Maher Arar, who held dual Canadian-Syrian citizenship, the United States transferred him from New York City to Syria where he faced harsh custodial conditions and torture for nearly a year—all based on inaccurate information and mistaken identity. Jeff Sallot, How Canada Failed Citizen Maher Arar, Globe and Mail, Sept. 19, 2006, http://www.theglobeandmail.com/news/national/how-canada-failed-citizen-maher -arar/article 1103562/?page=all (last visited Nov. 2, 2017). 12  In the United Kingdom, the courts will consider the degree of official misconduct to determine whether it should stay a prosecution when the normal extradition procedures have been bypassed. Compare Regina v. Horseferry Road Magistrate’s Court Ex Parte Bennett (1994) 1 A.C. 42 (allowing an appeal where the defendant had demonstrated a level of collusion between the British Metropolitan and the South African Police in kidnapping an individual and bringing him back to the UK for trial), with Regina v. Nicholas Robert Neil Mullen (1999) EWCA Crim 278 (the Court of Appeal overturned a conviction where the British Secret Intelligence Service “took active steps to persuade the Zimbabwe Central Intelligence Organization (CIO) that there existed grounds for deportation and provided evidence, including, crucially, evidence of previous convictions, as well as draft documents recommending grounds for deportation,” all in an effort to evade domestic and international law).

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accomplish practical results in advancing the ends of the criminal justice system or in protecting a person’s fundamental human rights. The rendition of a suspect, through an established treaty/statutory process, offers many advantages in terms of simultaneously protecting human rights and serving the needs of the criminal justice system. Senior officials and judges must consider a range of factors when considering a request for extradition to a foreign State, such as the identification of the accused (i.e., whether this is the right person), the nature of the charges against him/her (i.e., whether the charges are political or non-political), the risk of abusive interrogation in the Requesting State (i.e., assurances against torture), a person’s right to attorney at all stages in the process, and practical measures that could enhance the admissibility of evidence in a foreign court. Extraordinary rendition, however, carries an inherent risk of abuse and should be banned in the EAC. The non-use of a treaty/statutory process raises risks whether the right person is extradited for the right reasons and with appropriate human rights safeguards. The risk of torture, as an example, is heightened in high-profile security cases where the authorities may see the need for prompt information from a culpable person; there should be explicit protections against it and related coercive practices. The EAC Partner States each have varying national laws with respect to extradition. Burundi apparently lacks an extradition statute, but may have an extradition treaty with Rwanda.13 Kenya has two extradition statutes, one statute applies to “Contiguous and Foreign” countries,14 and the second applies to Commonwealth countries.15 The Commonwealth statute has detailed provisions relating to the return and treatment of fugitives, and includes a detailed schedule of extraditable crimes. Rwanda has adopted a statute and has apparently agreed to multiple bilateral extradition treaties, in part to secure the return of persons complicit in the 1994 genocide.16 13  Eugene Mutara, East Africa: Rwanda, Burundi Negotiate Extradition Accord, New Times (Kigale), June 5, 2009, http://allafrica.com/stories/200906050220.html (last visited Nov. 2, 2017). 14   E xtradition (Contiguous and Foreign Countries) Act, Act No. 65 of 1968, s. 19: http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP. 76 (last visited Oct. 28, 2017). 15   E xtradition (Commonwealth Countries) Act, No. 65 of 1968, s. 19, http://www .kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP. 76 (last visited Oct. 28, 2017). 16  Michael Sung, Rwanda Signs Extradition Treaties after Abolishing Death Penalty, Jurist, Aug. 3, 2007, http://jurist.org/paperchase/2007/08/rwanda-signs-extradition-treaties -after.php. See also IRIN News, Rwanda-Uganda: Neighbours Sign Extradition Treaty, July 18, 2005, http://www.irinnews.org/report/55483/rwanda-uganda-neighbours-sign -extradition-treaty (discussing the bilateral Rwanda-Uganda extradition treaty (the agreement was seen as an effort to ease the tensions that had existed between the two

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Tanzania has an extensive 1965 Extradition Act that provides detailed procedures for the surrender of fugitives, the reciprocal backing of warrants, restrictions on surrender, and the taking of evidence for criminal trials in other countries.17 Like many foreign extradition statutes, the Tanzanian statute provides that extradition is discretionary in cases involving political offenses and it addresses the dual-criminality of crimes. The statute requires that an arrested fugitive must be “brought before a Magistrate as soon as practicable.”18 The statute concludes with a two page schedule of extraditable offenses. Uganda has a 1964 Extradition statute that can be applied to a broad range of offenses, excluding ones only of a “political character.”19 This statute “applies in the case of any country, every fugitive criminal of that country who is in or suspected of being in Uganda….”20 This statute provides for the issuance of a judicial warrant for arrest, upon a requisition made through the Minister, and the fugitive must be brought before a magistrate within 24 hours after apprehension. Unlike the Tanzania statute, the Ugandan statute does not make any provisions for the taking of evidence abroad. Finding 4. The EAC Partner States have significant shortcomings with respect to the choice of applicable law in counter-terrorism cases (i.e., the transition, lex specialis, from international human rights law (a law enforcement paradigm) to international humanitarian law (a law of war paradigm). Undoubtedly, the default paradigm should be a law enforcement paradigm that emphasizes the rule of law and accountability of state actors for human rights abuses.21 Many EAC Partner States have experienced dramatic attacks, civil disorders, attacks by organized armed groups that seek sanctuary in bordering states, countries since 2000). See also Nasra Bishumba, East Africa: Rwanda, Kenya Extradition Treaty to Be Signed Tomorrow, New Times (Kigale), Sept. 29, 2009, http://allafrica.com/ stories/200909290005.html. 17   T he Extradition Act, Act No. 15 of 1965, R.L. Cap. 585, May 24, 1965. 18  Id. § 6(4). The Government of Uganda requested that Tanzania extradite at least one person suspected of involvement in the July 2010 bombing in Kampala, but Tanzania apparently refused to do so. Ole Mapelu Zakayo, Rendition and Extradition in Kenya, Evolution Africa, May 10, 2011, http://evolutionafrica.com/rendition-and-extradition -in-kenya/(last visited Nov. 2, 2017) (explaining that there is an “established but unofficial cooperation between East Africa States to exchange criminal [sic] without compliance with extradition laws since the establishment of the EAC in 1967”). 19   U ganda: Extradition Act of 1964, Cap. 117, July 20, 1964, http://www.refworld.og/ docid/3ae6b4d238.html (last visited Oct. 28, 2017). 20  Id. § 5. 21  See, for example, Human Rights Committee (ICCPR), General Comment No. 29 (Article 4: Derogations during a State of Emergency), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) (noting that “measures derogating from the provisions of the [ICCPR] must be of an exceptional and temporary nature.”).

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and even some level of non-international armed conflict. Here, the Kenyan Constitution, articles 58 and 132(4)(d), offer a useful constitutional approach for the EAC Partner States; in other words, a law enforcement paradigm should be the presumptive standard, unless and until, the President declares a state of national emergency by presidential proclamation/decree that is widely published. Moreover, such proclamation/decree should be permitted for limited periods (e.g., 30 days) and subject to parliamentary approval.22 Such a change in EAC legal practice would help reduce the abusive resort to military force when confronted with dramatic criminal attacks and civil strife, while placing the emphasis on effective law enforcement operations with appropriate judicial review. Finally, such a change in EAC constitutional law would be consistent with the limitations imposed by the ICCPR.23 Finding 5. Some EAC Partner States, such as Uganda, allow for the application of military law to civilians not accompanying forces, raising significant concerns with human rights and the risk of abusive use of military courts. Each EAC Partner State should enact explicit laws limiting the application to military law to active duty personnel, retired personnel for offenses committed while in service, and to civilians accompanying the forces on overseas deployments (i.e., in support of UN peacekeeping operations in Somalia). Again, Uganda offers a cautionary tale with respect to the attempted prosecution of Dr. Kizza Besigye. Finding 6. Some EAC Partner States, such as Uganda, lack a statute of limitations for the prosecution of important terrorism offenses. While this may be appropriate for certain serious offenses such as murder or treason, it also creates a situation in which the State can use a serious charge as a political “cudgel” that is periodically raised when convenient (e.g., during national 22   C onst. of Kenya, article 58, as well as article 132(4)(d), allows the President the to declare a state of emergency only when “(a) the State is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and (b) the declaration is necessary to meet the circumstances for which the emergency is declared.” 23   I CCPR Article 4(1) provides: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law….” Moreover, General Comment on Article 4, supra n.21, provides that: “Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed.”

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elections, as a means of gaining leverage over a contender for the presidency). This gap in national-level law, when combined with the double jeopardy rule, leaves the state free to begin a trial and later withdraw charges, only to renew the process some years later when “new” evidence is gathered (i.e., it once again becomes politically expedient to set in motion a new trial).24 7.3

Recommended Changes in EAC National Laws

The EAC Partner States should consider a range of like reforms in counterterrorism law at the national level; in fact, addressing a range of domestic and cross-border issues that threaten regional peace and security could help the EAC reach its broader political and economic goals with respect to community integration. One writer aptly describes this process as “integration through the law.”25 Ultimately, if regional integration is to succeed in the EAC, it will be because it meets the needs of the people, not because of the law itself. In other words, the law can be a tool in mitigating threats to regional peace and stability, thereby allowing integration to bring its desired benefits.26 Indeed, the EAC Partner States should initiate legal reforms using the concept of “variable geometry,” embraced in the EAC Treaty and as used in the European Community (EU) as the principle of flexibility,27 permitting some level of experimentation and variation among the EAC Partner States, with some States moving forward on important counterterrorism issues even though other States might not be in agreement. Such national-level reforms could include the adoption of community-wide arrest warrants, the adoption of an investigative detention regime, explicit national-level legislation permitting trial courts to issue and accept letters rogatory, a Reciprocal Enforcement of Foreign Judgments Act that could facilitate the collection of civil judgments, and by extending the jurisdiction of the East African Court of Justice (EACJ) to 24  C  ompare Republic of Uganda, The Magistrates Act, 1971, art. 26–28, with Republic of Uganda, Trial on Indictments Act, 1971, art. 3. Thus, the prohibition on double jeopardy in Uganda attaches only upon conviction or acquittal. 25  Armin Cuyvers, The Institutional Framework of the EU, in East African Community Law, supra n.2, at 97. 26  Id. at 98. 27  Variable geometry has been defined in the EAC treaty as a principle “which allows for progression in co-operation among groups within the Community for wider integration schemes in various fields and at different speeds.” Treaty for the Establishment of the East African Community, as amended on Dec. 14, 2006 and Aug. 20, 2007, art. 7(1)(e). See also Elvis Mbembe Binda, The Legal Framework of the EAC, in Ugirashebuja, East African Community Law, supra n.2, at 105–08.

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hear human rights cases. The adoption of an EAC arrest warrant should be a priority effort. Recommendation 1. The EAC Partner States should adopt an international treaty that provides for an East African arrest warrant, likely both in English and Swahili, perhaps modeled on the current European search warrant that has eliminated the need for lengthy extradition proceedings and is now considered a success story by the European Commission.28 In fact, the East African arrest warrant, even if implemented by some—but not all—Partner States could eliminate the need for extradition treaties and help build mutual trust between States in criminal cases. This treaty would likely require domestication into the municipal laws of each of the EAC Partner States. The EU arrest warrant, valid for cases involving criminal prosecutions and custodial sentences, was implemented by Council Framework Decision of June 13, 2002.29 The decision explains that: 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.30 The Council Decision also identifies situations involving the mandatory nonexecution of a warrant that should also be applicable to an EAC arrest warrant, such as cases in which the person has received a grant of amnesty, the person has been previously tried in the executing State for the same act (i.e., double jeopardy), or the person may not be held criminally liable for that crime in the executing State based upon his age.31

28  Vincent Glerum, et al., Lessons of the European Arrest Warrant, in Larissa van den Herik & Nico Schrijver, Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges 182 (2013) (examining how the European arrest warrant has changed the “landscape of interstate transfer of accused and convicted persons in the [European Union]). 29  Council of the European Union, Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), June 13, 2002, http://eur-lex.europa.eu/eli/dec_framw/2002/584/oj (last visited Nov. 7, 2017). 30  Id. art. 1. 31  Id. art. 3.

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In the EAC, the use of a community-wide arrest warrant would facilitate the extradition and prosecution of persons suspected of terrorism-related offenses, to include murder, robbery, kidnapping, seizure of ships or aircraft, participation in designated foreign terrorist organizations, money laundering, human trafficking, corruption, and fraud. The EAC Partner States should delineate the permissible criminal offenses for which an arrest and transfer may be sought, the national-level judicial authorities permitted to issue community arrest warrants, the rights of accused persons in the Sending and Receiving States, the form and content of the warrant, and surrender procedures. Thus, the EAC arrest warrant could list offenses, defined with some specificity, that offend international and regional peace and stability, such as war crimes, crimes against humanity, terrorism offenses and other serious human rights violations. Moreover, in cases where the person has been previously tried in the executing State for the same act (i.e., double jeopardy cases), the treaty should include a definition on when “attachment” occurs. Also, the listed offenses should be “depolicitized”; in other words, the political offense exception should not be applicable to those offenses.32 Nonetheless, the Partner States could still retain the traditional requirement of dual-criminality for unlisted offenses. Finally, the EAC arrest warrant could still recognize mandatory and optional grounds for refusal, as well as situations in which guarantees may be sought (e.g., cases where there have been concerns over torture or other inhuman or degrading treatment or punishment, or access to counsel). Thus, the mandatory cases might include those involving prior trials of the accused in absentia, the death penalty, or the prosecution of minors under age 15, while the optional cases might include those involving impermissible discrimination33 or the application of the political offense exception to a non-violent offense. In any case, the use of an EAC arrest warrant could eliminate any in-depth or lengthy examination of an extradition request by either executive branch or judicial officials, which can often involve a detailed review of the evidence, as well as political considerations involving Partner States, as is often the case in a classic extradition request. And, like classic extradition treaties, any

32  Glerum, Lessons of the European Arrest Warrant, supra n.28, at 194–197 (providing an excellent analysis of the political offense exception and the traditional reasons for its application). 33  The EU Framework Decision on the EAC arrest warrant contains an anti-discrimination clause, providing that nothing may be interpreted as prohibiting a refusal in cases where there are substantial grounds for believing that the person would be discriminated against based upon his sex, race, religion, ethnicity, national or other protected reasons. Id. at 197–200.

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treaty on an EAC arrest warrant should include the principal rules, such as an issuing State must refrain from prosecuting a person on grounds other than the offense for which he was transferred under the arrest warrant (i.e., a rule of speciality). In sum, an East African arrest warrant—based upon the principles of mutual recognition and mutual trust—would help overcome a history of distrust between certain Partner States and could, over time, be implemented by application of the concept of “variable geometry.” Recommendation 2. One practice that could be considered by the EAC Partner States would be the adoption of an investigative detention regime by statute—like that currently in use in the United Kingdom—that could be used in terrorism cases. UK law permits a person to be held in pre-charge detention for a maximum of 48 hours, extendable to 96 hours, in ordinary cases; however, in terrorism cases, the detention period can be extended to 28 days subject to judicial control.34 Such a practice would allow police officials to detain terror suspects incommunicado for limited periods, both to facilitate the investigation of case against the suspect and to prevent suspects from alerting their accomplishes before the police can thwart the attack or arrest the co-conspirators. While some might criticize this recommendation as a means of validating the already arbitrary and prolonged detention of suspects in some EAC Partner States, it would—in fact—establish stricter judicial control, with greater time limitations, over what has been the past practice in some countries. Clearly, persons detained in connection with offenses involving politically inspired violence can be particularly vulnerable to abuse from state security services;35 it would be important for an investigative detention statute to delineate the processes and procedures for the police, the exact timing (e.g., within 24/48 hours) and methods (e.g., by written application by senior police official—thereby establishing an official record) of judicial control, and the rights of arrested persons. Thus, an arrested person should be informed of his rights in preventative detention, to include a limited right to consult with an attorney and to challenge the basis for detention. In any case, a person subject to preventative detention should have an effective civil remedy, with appropriate monetary compensation, applicable in cases of abuse. Finally, such a statute would not necessarily contravene international human rights

34   Dan E. Stigall, Counterterrorism and the Comparative Law of Investigative Detention 106–110 (2009). 35  Alain Aeschlimann, Protection of Detainees: ICRC Action Behind Bars, 57 Int’l Rev. of the Red Cross 857, 83–122, 87–91 (March 2005).

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standards, so long as such detentions were not arbitrary and remained under the control of the judiciary.36 Recommendation 3. Next, the EAC Partner States should consider adopting a municipal law explicitly permitting the use of letters rogatory, as a means of expediting the investigation and prosecution of counter-terrorism offenses. The statutory authorization should delineate what types of legal assistance may be sought and rendered, the permissible uses in either criminal or civil litigation, any process and procedure that must be followed, and any limitations on usage. Thus, a permissible letter should include the precise evidence/assistance sought, to include the nature of the pending civil/criminal proceedings; that the affiant must be a public prosecutor or Ministry of Justice official in an EAC country; and that the request may be made ex parte. Recommendation 4. All six EAC Partner States should adopt a Reciprocal Enforcement of Foreign Judgments Act. Kenya, Tanzania and Uganda currently have such statutes, providing a useful means of allowing plaintiffs to collect on civil judgments involving compensatory damage in torture cases.37 Here, the EAC Partner States should delineate the nature of civil judgments that can be recognized (i.e., issuing courts, whether default judgments can be accepted, and whether there are any applicable threshold amounts), the process of registering a foreign judgment in each Partner State, the rights of persons to contest a foreign judgment, and property that is subject to attachment (to include any exempted property). Recommendation 5. The EAC Partner States should extend the jurisdiction of the East African Court of Justice (EACJ) to hear human rights cases by adopting a protocol allowing extended jurisdiction over such cases as envisioned by EAC Treaty article 27(2): “The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by0 the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.”38 This protocol has not been enacted and, while the EACJ has been able to assert 36   I CCPR, art. 9. See also Standard Minimum Rules for the Treatment of Prisoners, adopted by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of July 32, 1957 and 2076 (LXII) of May 13, 1977 (providing a “soft law” standard); U.N. General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, U.N. Doc. A/RES/43/173, Dec. 9, 1988. 37  James Otieno-Odek, Judicial Enforcement and Implementation of EAC Law, in East African Community Law, supra n.2, at 483. 38  The Treaty of the East African Community, signed on Nov. 30, 1999, and entered into force on July 7, 2000, art. 27(2).

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jurisdiction in a limited class of human rights cases, such a protocol could help ensure the protection of human rights, through the rule of law and good governance, throughout the EAC. Recommendation 6. The EAC should follow the lead of the European Union and adopt a principle of “mutual recognition” in post-conviction cases, thereby abolishing the formal extradition process in cases involving defendants fleeing from justice after final sentencing.39 This principle would obligate the Partner States to recognize the validity of foreign criminal convictions, eliminating the unnecessary time and expense involved in a formal extradition process and replacing it with a simple transfer procedure. 7.4 The EAC: the Need for a Mutual Legal Assistance Treaty (MLAT) The ends of criminal justice, such as the sound conviction of the right person for the right reasons, and the protection of fundamental human rights, such as the freedom from arbitrary detention and torture, should be mutually compatible goals. The EAC Partner States should consider the UN Model Treaty on Extradition,40 as well as the subsequent experience of the Economic Community of West African States (ECOWAS),41 in adopting a MLAT 39  August Reinisch, The Action of the European Union to Combat International Terrorism, in Enforcing International Law Norms Against Terrorism (Andrea Bianchi, ed., 2004), at 122–23. 40  Model Treaty on Extradition, adopted by the General Assembly Resolution 45/116 (Dec. 14, 1990), and subsequently amended by General Assembly Resolution 52/88 (Dec. 12, 1997). The U.N. Office on Drugs and Crime has also published a supporting manual and the reports from three separate informal working groups. This material would be invaluable to the EAC Partner States in their deliberations on a possible MLAT. See generally UNODC, Revised Manuals on the Model Treaty on Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters, n.p., undated; Report of the Expert Working Group on Mutual Legal Assistance and Related International Confiscation, Vienna, Feb. 1993; Informal Expert Working Group on Mutual Legal Assistance Casework Best Practice, Vienna, 2001; and Informal Expert Working Group on Effective Extradition Casework Practice, Vienna, 2004. Finally, the UNODC has a 2004 Model Law on Extradition that would be useful in any concurrent updating of their own national laws. All are available at: https://www.unodc.org/unodc/en/legal-tools/model-treaties-and-laws.html (last visited Oct. 28, 2017). 41  The ECOWAS was established on May 28, 1975, by the Treaty of Lagos. The ECOWAS is a regional group with a mandate to promote economic integration in all fields of activity of its 15 Member States: Benin, Burkina Faso, Cape Verde, Cote d’ Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sierra Leone, Senegal and Togo. The ECOWAS Website, http://www.ecowas.int/about-ecowas/basic-information/ (last visited Oct. 28, 2017).

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regarding the practice of extradition in counter-terrorism cases.42 There are considerable benefits that would accrue to the EAC from its own MLAT. A wellconsidered MLAT, drawing from international case law and the experience of regional human rights organizations, could enhance the effectiveness of law enforcement operations and ensure sound criminal convictions throughout the community. A MLAT would, however, come with some political and legal costs that should be considered by policymakers, practitioners and commentators. There are two important multilateral instruments that could be used by the EAC Partner States to establish an effective MLAT on extradition issues. The first instrument, a model treaty prepared for the U.N. General Assembly, provides an important starting point that would require some amplification for EAC practice and procedure. The second instrument is the 1994 ECOWAS Convention on Extradition, along with the earlier 1992 ECOWAS Convention on Mutual Legal Assistance in Criminal Matters; in combination, the two ECOWAS Conventions could be adopted by the EAC with minor changes. The UN Model Treaty on Extradition, adopted by the General Assembly in 1990 and again in 1997, offers a useful roadmap for the EAC Partner States and other countries with outdated extradition arrangements. The current manual provides: The Model Treaty on Extradition is an important tool in international cooperation in criminal matters, because of both its contents and structure. Its provisions are the result of a careful assessment of the needs and difficulties of countries in extradition procedures. It imposes clear and concise obligations, and contains acceptable safeguards for the requesting State (to whom extradition cannot be arbitrarily refused), the requested State (which maintains sovereignty and rights to protect persons wanted and nationals from unacceptable detention or treatment) and the person wanted (who has ample opportunity to have his or her particular circumstances examined).43

42  By comparison, the Economic Community of West African States (ECOWAS) has adopted the Convention on Mutual Assistance in Criminal Matters (A/P.1/7/92) (covering a range of topics to include evidentiary matters, the forfeiture of the proceeds of a crime, the transfer of proceedings and costs), as well as the Convention On Extradition (A/P.1/8/94) (establishing certain extradition principles, to include the non-use of extradition for political purposes). The ECOWAS Documentation on-line, http://documentation.ecowas.int/legal-documents/protocols (last visited Oct. 28, 2017). The ECOWAS Conventions could be used as models for similar EAC efforts. 43   U NODC, Revised Manuals on the Model Treaty, supra n.40, at 4.

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The model treaty notes that effective bilateral and multilateral instruments can promote international cooperation for the control of crime, with due regard for human dignity and the rights embodied in the 1948 UDHR and the 1966 ICCPR. The model treaty addresses extraditable offenses, mandatory and optional grounds for the refusal of an extradition request, the channels of communication and the required documentation to support an extradition request, arrest procedures, and transit through third countries. In terms of extraditable offenses, the model treaty addresses recurring problems in international practice such as where there are differences in the national laws of the two parties (e.g., whether the offense is a crime in both jurisdictions and whether there are differences in the elements of the crime or in the punishments that can be imposed).44 In terms of grounds for refusal, the model treaty also addresses common issues such as whether the offense is a political crime, whether the person would be subjected to torture in the Requesting State, and whether the death penalty could be imposed on that person.45 The model treaty does not, however, provide for the right of the 44  This is the problem of dual-criminality. In some cases, a Requesting State may request the extradition of a person for something that is not considered a criminal act in the Requested State (e.g., the act might be a “political” offense such as free speech or peaceful assembly in opposition to the ruling regime). Dual-criminality can also be a problem because States often have technical differences in how crimes are defined, named and proven. One modern test for dual-criminality would focus not on “technical terms or definitions but on the substantive underlying conduct. Thus, the test is whether the conduct alleged against the fugitive would constitute a criminal offense in the requested State, regardless whether the offenses in the two states carry a different name or have different elements to them.” Kimberly Prost, Breaking Down the Barriers: International Cooperation in Combating Transnational Crime, Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition (undated), at 7–8. This leads to several practical issues for prosecutors, to include whether the Requesting State has provided adequate evidence to support the request and whether the accused is a national or non-national of the Requested State. Here, the EAC Partner States might agree that a lower threshold of evidence is required in support of an extradition request, at least as compared to the normal evidentiary standards in the Requested State to sustain a criminal prosecution. In addition, the Partner States could agree that where the Requested State elects not to extradite one of its own nationals that it would refer the case to its own domestic courts for prosecution (i.e., acknowledging an “extradite or prosecute” obligation), or that an extradited national could be returned to the Requested State after trial to serve out his sentence. Id. at 8–10. 45  Lilian Chenwi, Breaking New Ground: The Need for a Protocol to the African Charter on the Abolition of the Death Penalty in Africa, 5 Afr. Hum. Rts. L. J. 89, 96 (2005) (analyzing issues regarding the application of the death penalty and explaining, in part, that the possible application of the penalty to an accused person provides a basis for a State’s refusal to extradite).

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accused to contest to the transfer. Article 9 (3) provides only: “The Requested State shall decide on the application [for provisional arrest] in accordance with its law and communicate its decision to the Requesting State without delay.”46 The ECOWAS has established two useful protocols that can be used as models for the EAC Partner States.47 The 1992 Convention on Mutual Assistance in Criminal Matters addresses a broad range of law enforcement activities, to include the taking of evidence, assuring the availability of witnesses, the service of legal documents, the execution of searches and seizures, and the provision of records and other evidence. The 1992 Convention explicitly does not apply to the “arrest or detention of any person with a view to the extradition of that person….”48 Overall, the 1992 Convention is a thorough document that provides detailed guidance on legal assistance procedures; it undoubtedly provides a basis for effective cooperation in law enforcement activities, with considerable protections for the accused. The 1994 Convention on Extradition follows the UN Model Treaty on Extradition, with slight differences. For example, the 1994 Convention addresses requests for the transfer of a minor (no doubt reflecting the on-going concerns over the use of child soldiers) and the Convention shortens the period of provisional arrest from 40 to 20 days. Both the UN Model Treaty and the 1994 Convention call for the involvement of the International Criminal Police Organisation (INTERPOL). Like the UN Model Treaty, the 1994 Convention provides for the right of the accused to contest to the transfer. An EAC MLAT can used to establish how EAC countries should share evidence, to include the transfer of suspects, for criminal investigations and prosecutions, to foreign countries. While the use of a MLAT can delay the transfer of a suspect in a high profile terrorism case, it can also help ensure that the right person has been apprehended and is subject to judicial safeguards in both the Requesting and Requested States. A standardized process and procedure should facilitate the expedited handling of extradition requests, improved sharing of intelligence/evidence, and improved accountability for law enforcement officials. The MLAT should clarify a defendant’s right to a writ of habeas corpus as it applies to counterterrorism proceedings. This right, guaranteed by the 1966 ICCPR and the national laws of at least four EAC Partner States, should 46  Model Treaty on Extradition, supra n.40, art. 9 (3). 47   E COWAS, Convention on Mutual Assistance in Criminal Matters (A/P.1/7/92) and Convention on Extradition (A/P.1/8/94), supra n.42. 48  Id. art. 2(3)(a).

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be clarified with regard to its legal scope and affect. First, the MLAT should indicate that the writ is applicable to persons held in custody by an EAC Partner State, without regard to the petitioner is a citizen or non-citizen of the detaining country, or is even within its “territory.” This point could be important if, for example, the military forces from Burundi, Kenya or Uganda, currently deployed to Somalia in support of African peacekeeping operations, were holding a non-citizen49 suspected terrorist at a base in Mogadishu.50 An accused terrorist should have the right to contest the jurisdiction of the custodial authority, his treatment in detention, and the legal process that is being used against him. Second, because persons subject to rendition may not have access to a lawyer or any legal process, the MLAT should permit the filing of a petition with a court by a “next friend” (e.g., either a relative or a human rights organization acting on his behalf). Third, in any consent procedure (i.e., cases where an accused person is arrested and consents to extradition), a judicial officer should review the case to ensure that the accused has made a knowing and voluntary waiver of his right to contest extradition.

49  There are several realistic scenarios that could occur here, to include the capture of an American, a Yemeni or a Saudi citizen who is loosely affiliated with either al Qaeda or its Yemeni “franchise” organization al Qaeda in the Arabian Peninsula (AQAP). In addition, the “terrorist,” who might or might not be armed, could be captured in international waters while carrying out an act of piracy against international shipping or while transiting in a small boat from Yemen to Somalia (e.g., Ahmed Abdulkadir Warsame who was captured by the U.S. military on Apr. 19, 2011). This raises questions about that person’s relationship to the conflict in Somalia and the law that might apply to his transfer to a third country. See generally Robert M. Chesney, Beyond the Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture of Counterterrorism, 112 Mich. L. Rev. 163 (Nov. 2013) (arguing that the shifting strategic posture of the United States and al Qaeda necessitates a review of the contemporary architecture for counterterrorism operations, to include the identification of the enemy and the applicable law). 50   A MISOM (African Union Mission in Somalia), “Military Component,” http://amisom-au. org/mission-profile/military-component/ (last visited Nov. 2, 2017). See also U.N. Press Release, “Security Council Extends Mandate of African Union Mission in Somalia, Requests Increase in Troop Strength,” Nov. 12, 2013, http://www.un.org/press/en/2013/ sc11172.doc.htm (citing concerns about allegations of misconduct against soldiers assigned to the AMISOM and “further underlines in particular the need for AMISOM to ensure that any detainees in their custody, including disengaged combatants, are treated in strict compliance with applicable obligations under international humanitarian law and human rights law, including ensuring their humane treatment”) (emphasis in original). Id. Article 12. The AMISOM mission has been extended by the U.N. Security Council until May 30, 2016, with a maximum strength of 22,126 troops. S.C. Res. 2232, U.N. Doc. S/2015/567 (July 2015).

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Next, the MLAT should clarify that a petitioner may claim violations of either an international treaty or EAC national laws.51 In rendition cases, for example, a detainee should have the right to challenge whether he will be transferred to another country where he will likely be subjected to torture. This provision should help the EACJ in enforcing affirmative obligations under the 1966 ICCPR, extradition treaties, the 1985 Torture Convention, and other human rights agreements. Thus, while EAC Partner States may have assumed international obligations, it is equally important that the EACJ ensure consistent and effective national implementation. Finally, it might be useful for the EAC to move away from a formal schedule of extraditable offenses, in that a schedule can become obsolete as new crimes are recognized. Instead, the EAC could adopt a “conduct and penalty” test; a Requesting State would have to show that the conduct involved constituted an offense in both states and by some prescribed period of incarceration as defined in the MLAT.52 This approach could also reduce the burden on the Partner States regarding the need for a periodic review and update of the treaty. The treaty should define: 1. Extraditable offenses based upon a conduct and penalty test53 to include limitations on the application of the death penalty in the Requesting State;54 51  The MLAT should also account for whether a person can be extradited for ancillary offenses (i.e., less serious offenses that do not, in themselves, qualify for extradition). This accounting would highlight any offenses that might otherwise be precluded by the “rule of specialty.” In other words, under customary international law, a person cannot ordinarily be prosecuted for any prior offenses, except the one that is the subject of the extradition request. UNODC, Informal Expert Working Group on Effective Extradition Casework Practice (2004), supra n.40, at 10. 52  See Prost, Breaking Down the Barriers, supra n.44, at 7 (providing an overview of international efforts, such as mutual legal assistance and extradition, to help the international community to “overcome the barriers of sovereignty” in its fight against criminals). See also Peter Swire & Justin D. Hemmings, Re-Engineering the Mutual Legal Assistance Treaty Process (unpublished draft for the New York University and Privacy Law Scholars Conferences, May 14, 2015,), http://www.heinz.cmu.edu/~acquisti/SHB2015/ Swire.docx (last visited Oct. 28, 2017) (addressing the need for MLAT reforms in U.S. law and practice). 53  This section of the MLAT should explicitly include crimes under the jurisdiction of the International Criminal Court (ICC) and the International Criminal Tribunal for Rwanda (ICTR). Under the Rome Statute of the International Criminal Court, July 7, 1998, 2187 U.N.T.S. 90, this would include genocide, crimes against humanity, war crimes and aggression. 54  In 2008 Rwanda acceded to the 1989 Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, while Kenya, Tanzania and Uganda have not done so.

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2.  The grounds for refusal of a request, and whether refusal is mandatory or discretionary; 3. The appropriate format, evidence and formal assurances required to support a request, to include the identification of the responsible officials in each country for initiating and receiving a request; 4. A requirement for an arrest warrant in the Requesting State;55 5. A suspect’s right to legal counsel and a fair hearing before a magistrate in the Requested State before extradition; 6. Assurances on speedy hearing—within a set number of days— before an independent and impartial magistrate after extradition; 7. Assurances against torture in the Requesting State; 8. A prohibition against using any coerced confessions made in the Requested State in later criminal proceedings; 9. Procedures for the use of physical evidence and testimony from the Requested State in later criminal proceedings; 10. A right to challenge detention in the Requested State, the Requesting State, or through the EACJ by means of a writ of habeas corpus; and

UN Treaty Collection, https://treaties.un.org/ (last visited Nov. 2, 2017). In Rwanda’s case, the decision to abolish the death penalty was influenced by the need to encourage foreign countries—not recognizing the death penalty—to extradite persons suspected of criminal acts in connection with the 1994 genocide back to Kigali for trial. IRIN News, RWANDA: New Law Brings Hope for Extradition of Genocide Suspects , Aug. 7, 2007, http://www.irinnews.org/report/73561/rwanda-new-law-brings-hope-for-extradition-of -genocide-suspects (last visited Nov. 2, 2017). Burundi abolished the death penalty in 2009, but has not acceded to the Second Optional Protocol. Human Rights Watch, Burundi: Assembly Abolishes Death Penalty, Criminalizes Torture, Dec. 3, 2008, https://www.hrw .org/news/2008/12/03/burundi-assembly-abolishes-death-penalty-criminalizes-torture (last visited Nov. 2, 2017). The Uganda Penal Code, on the other hand, imposes the death penalty for a wide range of offenses, to include treason (Article 23), rape (Article 124), murder (Article 189), the defilement of a girl under the age of 18 (Article 129), and kidnapping (Article 243), that would not be recognized as death penalty offenses in many other countries. The Uganda Penal Code Act, June 15, 1950. Nonetheless, Uganda has apparently not executed any persons in the last ten years, leading to the question whether the country has banned the practice on a “de facto” basis. Mercy Nalugo, MPs Want Law to Abolish Death Penalty, The Monitor (Kampala), Sept. 28, 2013, http://www.monitor .co.ug/News/National/MPs-want-law-to-abolish-death-penalty/-/688334/2009904/-/ o8dbadz/-/index.html. See generally Chenwi, Breaking New Ground, supra n.45 (despite the guaranteed right to respect for life in the Banjul Charter and flaws in the application of the death penalty, only 12 African States have abolished the penalty in law and practice). 55  The Partner States could create an “East African Arrest Warrant,” much like the European Arrest Warrant that entered into force on Jan. 1, 2004. UNODC, “Informal Expert Working Group on Effective Extradition Casework Practice” (2004), supra n.40, at 13 and Annex D.

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11. A section with the agreed definitions for legal terms of art (e.g., warrant, deponent, or affidavit) typically used in extradition proceedings. This list of proposed factors should help policymakers, practitioners and jurists to focus on the critical issues which must be addressed in a comprehensive treaty. In any case, the MLAT would also help ensure the creation of effective enforcement mechanisms through national courts and the EACJ. There are important national and international issues that must be considered prior to the implementation of this MLAT. At the national level, an authoritarian head of state will likely be unwilling to agree to an erosion of his domestic authority, particularly with the prospect of increased international scrutiny over his sovereign law enforcement practices.56 Thus, the EAC Partner States may be unwilling to grant the authority, to either their own national courts or the EACJ, to hear and decide politically sensitive extradition cases. Nonetheless, pressure from civil society and human rights groups could help educate policymakers and the legal community about the benefits of an extradition MLAT. Second, national parliaments will likely have to pass implementing legislation to effectuate the agreement. Each EAC Partner State will require updated laws to regulate domestic law enforcement processes and procedures, and to grant its judiciary the authority needed to hear and decide extradition cases. At the international level, it will take time, money and a concerted effort to negotiate a new EAC treaty. Nonetheless, given the ease with which people cross borders in the EAC, it may be worth the investment to ensure that timely, effective procedures are in place in advance of a controversial case. In any event, the use of the UN Model Treaty could help expedite the treaty negotiation process. Next, the EAC Partner States should engage the AU and UN as it relates to their participation in peacekeeping missions (e.g., the AMISOM mission). There should be clear policies and procedures in place regarding the detention of non-nationals taken into custody during peacekeeping missions (i.e., a non-Somali in the case of the AMISOM mission). Finally, while the EACJ

56  Abadir M. Ibrahim, Evaluating a Decade of the African Union’s Protection of Human Rights and Democracy: A Post-Tahrir Assessment, 12 Afr. Hum. Rts. L. J. 30 (2012), at 46–47 (discussing the unwillingness of African political elites to allow the African Court on Human and Peoples’ Rights to hear individual complaints or, more generally, to probe into how States treat their own citizens).

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may require increased funding before it can hear cases, human rights groups may be willing to provide that support.57 The EAC Partner States should take advantage of international and regional experiences to develop an effective MLAT on extradition based on community needs. An EAC MLAT, particularly a holistic one based on the ECOWAS experience and refined by East African law enforcement concerns, could further cooperative efforts in combating transnational terrorism while providing safeguards for fundamental human rights. This MLAT would be a long step towards effectuating the international obligations of the EAC Partner States, while also contributing to community integration. This MLAT could also provide a model for other African regional intergovernmental organizations, such as the Southern African Development Community and Economic Community of Central African States. 7.5

Counterterrorism Assessment and Recommendations

The EAC Partner States face a broad range of terrorism threats, with some threats faced by several Partner States and other threats unique only to certain States. All five EAC Partner States have experienced decades-long problems with refugees, to include serving as host to a large foreign population for an extended time with organized armed groups using the camps as sanctuary for terrorist forays back into the country of origin. All five Partner States have a need for effective, well-coordinated responses to the terrorism threat, whether the emphasis is on countering violent extremism, controlling international borders, coordinating disarmament campaigns among cross-border tribes, or investigating and prosecuting international terrorism cases. In that respect, the EAC Partner States can eliminate some problems by ratifying/acceding to important human rights treaties, domesticating important obligations into municipal law, and supporting the rule of law through a strengthened judiciary and a stronger community police presence. And, since the written law can be undermined by heavy-heavy police and security responses, there must be strong executive and parliamentary oversight with disciplinary action against government officials who commit abuses and effective civil remedies to the victims of such abuse.

57  I d. at 64 (noting that human rights non-governmental organizations have been providing financial support to the African human rights system).

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The first and most serious national security (terrorist) threat to the EAC involves the threat of Islamic fundamentalists largely originating from al Shabaab in Somalia; the burden of this threat is carried largely by Kenya, Uganda and Tanzania. This threat has been facilitated by the cross-border movement of persons and small arms, and fueled by anger over the EAC support to the AMISOM mission and the treatment of Muslims. The second threat to the community is probably related to the ethnic HutuTutsi conflict in Burundi and Rwanda that dates back—at least with its serious human rights concerns—to 1959. This ethnic conflict has spurred countless acts of state-supported terrorism, as well as communal conflict, over the past decades, resulting in all manner of human rights abuses from heavy-handed police and security actions, war crimes, crimes against humanity, and genocide. Three countries, Burundi, Rwanda and Tanzania, face issues involving the constitutional structure of the country. In Burundi and Rwanda, the issue is power-sharing between the Hutu and the Tutsi that plays out in the presidential elections; that is, whether certain political parties have the right to organize and participate and whether the current president will remain in office for more than two terms. In Tanzania, the issue involves Zanzibari autonomy—with its unique cultural and religious heritage—within the Union legal structure. The EAC is likely to face continuing terrorist threats in the coming decades, at least in large part because of the deep political, ethnic and religious cleavages in the region. Thus, while some problems are undoubtedly not solvable, the EAC Partner States can take some actions to address some issues and prevent others from growing more serious.

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Index Acellam, Caesar 154, 181 African Charter on Human and Peoples’ Rights (Banjul Charter) 7, 11 n. 33, 41 n. 53, 46, 215, 216 n. 176, 250 n. 132 African Commission on Human and Peoples’ Rights 37, 46, 48–49, 59 n. 125, 196 n. 69 African Court on Human and Peoples’ Rights 37, 49 nn. 79–80, 50 n. 87, 216 n. 177, 272 n. 56 African Model Law on Counter Terrorism (2011) 53 African Union (AU) Mission in Somalia (AMISOM) 5, 13–14, 69, 80, 109, 207 n. 130, 248, 272, 274 Akayesu, Jean-Paul 199 Al-Hijra 110, 243 Al-Qaeda 11, 15, 20–22, 70 n. 156, 71, 86, 99, 120, 133, 151 n. 54, 177, 242, 269 n. 49 Al-Shabaab 10 n. 30, 15, 20, 22, 53 n. 111, 71, 80, 89 n. 46, 90, 95 n. 69, 98–114, 117 n. 173, 10 n. 189, 133, 140, 165, 177–178, 242–243, 274 Albinos 206 Allied Democratic Forces (ADF) 16, 152–153, 157, 163, 165 Ansar Muslim Youth Centre (AMYC) 243 Anti-Terrorism Police Unit (ATPU, Kenya)  107, 110 Army for the Liberation of Rwanda (ALIR)   16 Arusha Declaration 228 Association for Islamic Mobilization and Propagation (Uamsho, Zanzibar) 245 Awadh, Omar 47, 175, 177, 256 n. 10 Baader-Meinhof 119 Bagaza, Jean-Baptiste 190 Besigye, Dr. Kizza 23, 148 n. 41, 167, 171–172, 174, 176, 181, 259 Bin Laden, Osama 26 n. 2, 72 n. 159, 120 Bizimungu, Pasteur 194 Blixen, Karen 82 Bokassa, Jean-Bidel 228 n. 7 Boko Haram 245

Brady, Rory 16 Buyoya, Pierre 190 Chama Cha Mapinduzi (CCM, Tanzania)  230, 245 n. 108 Civic United Front (CUF, Zanzibar) 245 Civil Judgments 260, 264 Coalition for Reform and Democracy (CORD, Kenya) 91 Combatant’s Privilege 65, 68, 74 Comoros (Union of the Comoros) 13–14 Conflict Early Warning and Response Mechanism (CEWARN) 15 Constitution of Burundi (2005 Interim)  24, 34, 191, 192 n. 49, 199–201, 203–205, 224 Constitution of Kenya (2010) 34, 83, 86–91, 93, 99, 100 n. 93, 108, 111, 114–115, 119, 123 n. 199, 125, 129 n. 223, 133–134, 136–138 Constitution of Rwanda (2003) 24, 34, 194 n. 58, 199, 202–204 Constitution of South Sudan (2011 Transitional) 1 n. 1, 19 Constitution of Uganda (1995) 34, 141, 143, 146, 151 n. 56, 157 n. 86, 160, 168, 172, 174–176 Constitution of the United Republic of Tanzania (2005) 36 n. 36, 230 n. 17, 231 Constitution of Zanzibar (2006) 231 Dadaab Refugee Camp (Kenya) 99 n. 90 Democratic Forces for the Liberation of Rwanda (FDLR) 23, 188 n. 27, 214, 220 n. 198 Des Forges, Alison 187 n. 25 Director of Public Prosecutions (DPP, Kenya) 138 Director of Public Prosecutions (DPP, Uganda) 142, 152 n. 59, 155–156, 160, 168–171, 181 Double Jeopardy 23–25, 141, 142 n. 10, 160, 222 n. 200, 236, 249, 260–262

316 East Africa Standby Force (EASF) 14–15 East African Court of Justice (EACJ) 6–8, 47, 173, 260, 264, 270–272 Eastleigh (Nairobi) 99 n. 91, 111, 178 Economic Community of West African States (ECOWAS) 9 n. 23, 12 n. 36, 33 n. 23, 265, 266 n. 42, 268, 273 Egmont Group 30–31 Entebbe Raid (1976) 17, 40, 119 European Commission 261 European Union (EU) Arrest Warrant 261 External Security Organisation (ESO, Uganda) 159 n. 82 Extradition 8 n. 22, 9, 21, 24–25, 32, 33 n. 23, 37 n. 42, 38, 40–41, 43–44, 46, 50, 53–54, 107 nn. 121–125, 108, 137, 176, 200, 203, 218, 221–222, 225, 238, 242, 244, 248, 252, 255, 256 n. 12, 257–258, 261–262, 265–273 Extrajudicial Killings 107 n. 121, 110, 111 n. 140, 119, 120 n. 189, 123, 134 n. 239, 135, 139 n. 3, 157, 184, 207, 208 n. 134, 231 n. 19 Federal Bureau of Investigation (FBI, United States) 113–114, 178 Financial Action Task Force (FATF) 31, 116–117 n. 168, 161 Forces Armees Rwandaises (FAR) 192 Forum for Democratic Change (FDC, Uganda) 171 Gacaca (lawn) courts 197–198 Garissa College 104, 130 Global Counterterrorism Forum (GCTF)  255 Habyarimana, Juvenal 192 Hemed, Rashid Saleh 244 Hezbollah 72 Imbonerakure (Burundi) 207 n. 131, 208, 223 Independent National Commission on Human Rights (CNIDH, Burundi)  200 n. 87 Independent Policing Oversight Authority (IPOA, Kenya) 116, 129–130, 134

Index Inspector General of Government (IGG, Uganda) 159–160 Interahamwe (Rwanda) 188 n. 27, 195 n. 63, 196 Intergovernmental Authority on Development (IGAD) 6 n. 15, 14–15, 18, 162, 254 Internal Security Organisation (ISO, Uganda) 157 n. 82 International Committee of the Red Cross (ICRC) 61, 66 n. 144, 67, 222 n. 201 International Court of Justice (ICJ) 9 n. 25, 11, 57–59, 73 International Crimes Division (ICD, High Court of Uganda) 156, 167–168, 170, 175–180 International Criminal Court (ICC) 11–12, 16, 23, 38 n. 43, 66 n. 144, 85–86 n. 18, 87 n. 25, 101 n. 94, 124 n. 205, 155–156, 163, 165, 199 n. 82, 208, 212, 223, 270 n. 53 International Criminal Tribunal for Rwanda (ICTR) 16, 185–186 n. 14, 198–199, 216–217 n. 179, 250–251 n. 134, 270 n. 53 International Criminal Tribunal for the Former Yugoslavia (ICTY) 66, 73 International Organization for Migration (IOM) 96 International Peace Institute (IPI) 108 Investigative Detention 25, 32 n. 21, 260, 263 Islamic Party of Kenya (IPK) 101 Jemba, Sheikh Dr. Haruna 178 Joint Anti-Terrorism Task Force (JATT, Uganda) 156–157, 172, 175 Kabila, Laurent Desire 195 Kadhi Courts (Kenya) 86 n. 22, 88, 134 Kadhi Courts (Tanzania) 237 Kagame, Paul 179, 193 n. 52, 194, 215 Kakuma Refugee Camp (Kenya) 99 n. 90 Kangura (Hutu tabloid, Rwanda) 185, 186 n. 14 Karamojong 149 n. 43, 163 Katureebe, Chief Justice Bart Mugunda 169 Kayibanda, Gregoire 192 Kenya African National Union (KANU)  82–83

Index Kenya Defence Forces (KDF) 90, 109, 121 n. 192 Kenya National Commission of Human Rights (KNCHR) 22, 91, 99 n. 90, 119, 123, 125, 136, 138 Kenya National Focal Point (KNFP)  127 n. 214, 131–132 Kenya Police 85 n. 14, 102 n. 96, 103 n. 104, 108, 111 n. 140, 115–116, 123 n. 199, 127, 129–130, 134, 176 Kenya Police Reserve (KPR) 127, 129–130, 133–134 Kenyatta, Mzee Jomo 82–84, 86 n. 22 Kibaki, Mwai 84–85, 86 n. 22, 125 Kikwete, Jakaya Mirisho 230, 232 Kirya, Sheikh Hassan Ibrahim 178 Kolo, LRA Brigadier Sam 168 n. 136 Kony, Joseph 11–12, 20, 22, 140, 153–154, 163–165, 170 Kwoyelo, Thomas 153 n. 63, 156 n. 76, 168, 170–171 Lakwena, Raska 12 n. 35 Le Sage, Andre 3 Letters Rogatory 25, 252, 260, 264 Lord’s Resistance Army (LRA) 11, 12 n. 35, 16, 20, 22–23, 140, 151–155, 156 n. 76, 163–165, 167–170, 181 Magufuli, John Pombe Joseph 230 Magunda, Chief Justice Bart 169 Malabo Protocol (2014) 38 n. 43 Mau Mau 83 n. 5, 101 n. 94 Micombero, Michel 189–190 Mkapa, Benjamin William 230 Mohamed, Khalfan Khamis 244 Moi, Daniel arap 83–84, 86 n. 22 Money laundering 29, 30 n. 19, 31–32, 38 n. 43, 44, 51, 53–54, 56, 96 n. 75, 108, 116, 161, 162 n. 104, 212, 218 n. 180, 220, 241, 254, 262 Mount Elgon conflict (2005–2008) 122–123, 125 Mugira, Brigadier James 157 Mukulu, Jamilu 165 Mungiki 86 Museveni, Yoweri 20, 139, 141, 163, 164 n. 116, 171, 174, 193

317 Mutebi, Ronald Muwenda II 174 Mutual Legal Assistance Treaty (MLAT) 6, 21, 25, 43, 252, 265–266, 268–270, 272–273 Mutubazi, Joel 218 n. 182 Mwambutsa, Mwami 189 Mwinyi, Ali Hassan 230 Naluwairo, Ronald 147 n. 33, 148 nn. 39, 41, 150 National Commission for Human Rights (NCHR, Rwanda) 205, 226 National Constitutional Review Commission (NCRC, South Sudan) 1 n. 1, 18 n. 58 National Council for the Defence of Democracy-Forces for the Defence of Democracy (CNDD-FDD, Burundi)  208 n. 134 National Counterterrorism Center (NCTC, Kenya) 135 National Counterterrorism Center (NCTC, Tanzania) 242 National Focal Point (NFP, Uganda)  165–166 National Forces of Liberation (FNL, Burundi) 191, 207 National Resistance Movement (NRM, Uganda) 139, 163 Ndadaye, Melchoir 190 Ndayizeye, Domitien 191 Ndizeye, Charles 189 Nkurunziza, Pierre 24, 191–192, 207–209, 213, 223 Ntaryamira, Cyprien 193 Nyayo House 114 n. 159 Nyerere, Julius Kambarage 185 n. 12, 227–231, 233 Odhiambo, Okot 12 n. 35 Odinga, Raila 85, 87 n. 25, 125 Okello, Tito 141 Ongwen, Dominic 12 n. 35 Operation Linda Nchi (Kenya) 102 Operation Usalama Watch (Kenya, 2014)  110 Orange Democratic Movement (ODM, Kenya) 85, 125 Otti, Vincent 12 n. 35

318 Party of National Unity (PNU, Kenya) 85, 125 Pictet, Dr. Jean 62 n. 136 Piracy 38 n. 43, 55, 96 n. 75, 156 n. 76, 218 n. 180, 269 n. 49 Ponda, Sheikh Ponda Issa 243 Popular Front for the Liberation of Palestine (PFLP) 119 Prunier, Gerard 185 n. 12 Radio Television Libre des Mille Collines (RTLM, Rwanda) 185, 186 n. 14 “The Rape of the Temple” 174 Rapid Response Unit (Uganda) 176 Regional Centre on Small Arms in the Great Lakes Region, the Horn of Africa and Bordering States (RECSA) 128 n. 219, 132, 137, 166 Rwagasore, Prince Louis 189 Rwandan Defense Forces (RDF) 5, 225 Rwandan Patriotic Front (RPF) 4 n. 10, 188, 191, 193–194, 199, 218 n. 182 Sabaot Land Defense Force (SLDF) 122–124 Security Laws (Amendment) Act of 2014 (SLAA, Kenya) 90–92, 102 n. 101, 111, 136, 138 Seko, Mobutu Sese 188 n. 27, 229 n. 7 Shifta War 92 n. 59, 101 n. 94 Simbikangawa, Pascal 222 n. 200 Solis, Gary 72 South Sudan 1 n. 1, 2 n. 3, 6 n. 14, 7 n. 16, 13–14, 15 n. 48, 17–19, 26, 35 nn. 34–35, 36 nn. 36–37, 40, 37 nn. 41–42, 38 n. 44, 39 n. 44, 46 n. 72, 128 n. 219, 162, 253 Sudanese People’s Liberation Army (SPLA)  164 Synchronicity 252 Tabliq Sect (Uganda) 178 Tana Delta conflict (2008) 122 n. 193 Torture 21–22, 24, 26, 36, 39, 41–43, 46–47, 51, 84 n. 10, 89, 91 n. 56, 101 n. 94, 107–108, 109 n. 130, 114 n. 159, 118–119, 123, 133–135, 139 n. 2, 150, 152–153, 156–157, 176, 180, 183–184, 200, 206, 212, 218 n. 180, 220 n. 198, 222 n. 201, 225–226, 231 n. 19, 234 n. 33, 235 n. 41,

Index 248, 253, 256 nn. 10–11, 257, 262, 264–265, 267, 270–271 Treason 23, 25, 84 n. 10, 95, 139 nn. 1–2, 143, 152, 157 n. 83, 171–174, 180, 202, 207, 213, 218, 234 nn. 33–34, 235 n. 42, 236, 240, 259, 271 n. 54 Uganda Muslim Freedom Fighters (UMFF)  165 Uganda Peoples’ Defence Forces (UPDF) 11, 140, 142, 146–149, 150 n. 47, 154, 157, 164, 168, 171–172, 180–181 Ujamaa (Tanzania) 228, 233 UN–African Union Mission in Darfur (UNAMID) 13 UN Development Programme (UNDP) 131, 210 n. 144, 253, 255 UN Force Intervention Brigade (FIB) 13 UN Mission in South Sudan (UNMISS) 13, 18, 19 n. 60 UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) 14, 207 n. 130 UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) 13 UN Office on Drugs and Crime (UNODC)  265 n. 40 UN Office of the High Commissioner for Human Rights 154 n. 68 UN Security Council 5 n. 12, 12, 16–17, 18 n. 57, 19, 27 n. 6, 28, 54, 66 n. 145, 74, 109, 134, 198, 253, 269 n. 50 UN Security Council Counter-Terrorism Committee 26–29 UN Security Council Resolutions UNSCR 1373 22, 25, 27–28, 29 n. 13, 96, 117, 133, 161, 239, 243–244, 252–253 UNSCR 1456 29 UNSCR 2178 22, 25, 28–29, 96, 133, 239, 243, 252–253 UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism 22 Universal Jurisdiction 53, 124 n. 206, 221, 222 n. 200

319

Index Variable Geometry 25, 260, 263 Villa, Francisco “Pancho” 72 Wagalla (Kenya) 101 n. 94 Waki Commission 85 n. 17, 125 n. 208 West Bank Nile Front 153

Westgate Mall (Nairobi) 102–104, 133, 138 World Cup Finals (2010 Kampala bombing)  20, 107 n. 121, 175 Zombe, Abdallah 249