Africa Rights Watch

From Child Soldier to War Crimes Commander – ICC Confirms Registry Transmission of List of Individuals for Reparation Samples for the Victims of Dominic Ongwen

By: Tracy Acquan

Journal of Global Rights and Organizations, Associates Articles Editor

THE HAGUE, Netherlands– On January 16, 2023, the International Criminal Court (“ICC”) approved a sample list of individuals for reparations relating to the alleged crimes of Dominic Ongwen. The Chamber was fully content that the “assembled sample of 205 victims” was “sufficiently representative of the universe of potential victims [in] regards to gender, age, alleged harm, alleged crimes, and alleged locations” of the crimes.

Children in Barlonyo, Uganda at the site of the war crimes. Photo courtesy of Open Democracy and Flickr/Roberto Maldeno.

This decision comes a month after the Appeals Chamber of the ICC rejected Dominic Ongwen’s appeal of Trial Chamber IX’s decision to find him guilty of war crimes. He was sentenced to 25 years of imprisonment after being found guilty of “61 crimes, committed in Northern Uganda between July 1, 2002, and December 31, 2005.”  

Between the tender ages of nine to fourteen, Ongwen was abducted by the Lord’s Resistance Army (“LRA”) “as he was walking to school in northern Uganda.” As the years went by, he rose in ranks from child soldier to commander in the LRA. Established in 1988 by Joseph Kony, the LRA is a Ugandan rebel group “currently operating in the border region of the Democratic Republic of Congo, Central African Republic, and South Sudan.” The LRA is responsible for displacing and mutilating people, abducting “67,000 youth, including children for use as child soldiers, sex slaves, and porters.”  In March of 2010, Congress passed the “Lord’s Resistance Army Disarmament and Northern Recovery Act of 2009” as a measure to support and assist in efforts to disband the group, protect civilians, and restore peace to the people of central Africa. 

Popularly known as the “White Ant” Ongwen is accused of committing some of the most horrific crimes against humanity which include but are not limited to rape, torture, mutilation, abduction, and recruitment of child soldiers. During his appeal, Ongwen characterized himself as a victim, stating that “I’m one of the people against whom the LRA committed atrocities.” His defense of “mental disease or duress” was insufficient to absolve himself of punishment. Ongwen’s defense was unsuccessful in proving that he lived in a “constant state of fear.” The imminence element of duress requires a showing that the defendant lived with “a threat of death or serious bodily harm” on a “continuing basis.” Ongwen was described by witnesses as a “self-confident commander who had disobeyed orders.” He even had a contentious relationship at times with Joseph Kony.

The ICC’s decision to accept the sample list is a step towards the goal of obtaining reparations for the 4,065 victims of Ongwen’s crimes. After Ongwen’s conviction, many activists feared delays in the reparations phase of the proceedings due to procedural delays. The ICC wanted to accept a sample “sufficiently objective and statistically representative” of the victims. The victims would be randomly selected by the “Registry within five main categories of the victims in the case.” This includes crimes committed in the camp of Pajule IDP, the Odek IDP, Lukodi IDP, sexual and gender-based crimes, and crimes against soldiers. Moving forward the ICC instructs the LRVs to consult with the victims on whether they “consent to their identities being disclosed to the Defense.” Many victims hope that these proceedings will serve as a “recognition of the harms” they have faced at the hands of Dominic Ongwen, “The White Ant.”

 

For further information please see:

BBC-Dominic Ongwen-from child abductee to LRA rebel commander -6 May 2021

Counter Terrorism Guide-Lord’s Resistance Army (LRA)

ICC-Decision on the Registry Transmission of List of Individuals and Relevant Information for Reparations Sample-16 Dec. 2023

ICC-Ongwen case: ICC Appeals Chamber confirms the conviction and sentencing decisions- 15 Dec. 2023

Opinio Juris-Managing Expectations of Victims and Sustaining Community Outreach-11 May 2022

The Conversation – Dominic Ongwen: how the case of a former child soldier exposed weaknesses in international criminal law- 16 Jan. 2023

The White House-Statement by the President on the Signing of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009-24 May 2010

The African Court on Human and People’s Rights Finds Tanzania’s Mandatory Death Penalty for Murder to be Against the Charter of the United Nations

By: Penelope Boettiger
Impunity News Staff Writer

TANZANIA – On December 1, 2022 the African Court on Human and People’s Rights (ACtHPR) released its judgment regarding alleged violations in Tanzania of the right to life, the right to a fair trial, the right to be tried without undue delay, the right to effective representation, the right to dignity and to be free from cruel inhuman or degrading treatment following Defendant spending more than six years in pre-trial detention and held in twelve years (and counting) on death row following a mandatory death row sentence. In Marthine Christian Msuguri v. United Republic of Tanzania the Court found in favor of Defendant in all but his effective counsel claim, which was dismissed.

In Tanzania, the death penalty is, per penal code, imposed by hanging. Photo courtesy of BBC News

Concerning his right to life violation, which is protected under Article 4 of the Charter of the United Nations, of which Tanzania is a signatory, the Court found the mandatory death penalty under Article 197 of the Tanzanian Penal Code for the crime of murder violates the right to fair trial and violates the required individualized sentencing which takes into account circumstances of the crime and the Defendant as possible mitigating factors. Ignoring questions of insanity and generalized mental health status in particular violate the required judicial sentencing discretion.

Defendant was held in pre-trial detention for over six years before his trial, which violates his right to be tried without undue delay. The case at hand was not a complex case, did not require a great deal of investigation, and Defendant in no way contributed to the delay. With no explanation for such extensive delays, the Court found Defendant’s rights under Article 7(1)(d) of the Charter were violated. Regarding Defendant’s contention of degrading treatment, the Court found such delays, with the death penalty a likely outcome, would plainly result in the psychological suffering that in and of itself is inhuman and degrading under Article 5 of the Charter. Similarly, the length of his detention – more than twelve years to date – following being sentenced to death also violates this right. This psychological harm is compounded by the certainty of the death penalty in a situation where the mandatory death penalty is not legally in line with the Charter.

The Court here awarded pecuniary damages, reiterated its order to repeal the mandatory death sentence, for which it had been ordered in at least three previous cases. The Court also required the sentence be vacated and reconsidered under a process which does not impose the mandatory death sentence.

In Tanzania there are two offenses which carry mandatory death sentences: murder and treason. Under section 197 of the Penal Code, any non-pregnant person over 18 “shall be sentenced to death.” While the death penalty has been carried out in Tanzania since 1994, making it what is termed an “abolitionist in practice,” new death sentences continue to be handed down. Currently there are approximately 500 people on death row in Tanzania, thereby de facto violating the rights outlined above in Msuguri. The abolishment of not only the mandatory death penalty for murder, but for the death penalty at all, continues to rise in the African continent with Equatorial Guinea poised to be the latest to remove the death penalty from its criminal code at the end of this year. While the President of Tanzania commuted the death penalty for 256 inmates on death row in 2020, sparking international human rights hope that they too would be moving away from the psychological torture associated with indefinite time on death row, this has not panned out. In fact, in 2019 the High Court of Tanzania upheld the death penalty, so while in Msuguri mandatory death sentence and conditions surrounding it were found to be contrary to the Charter and violative of human rights, for now the death penalty and the mandatory death penalty for murder stand. The world waits to see how Tanzania will respond to the ACtHPR’s decision and what, if any, changes to its penal code Tanzania will make.

U.S. Department of State – Country Reports on Human Rights Practices: Tanzania – 2020

Leonard Shaidi – The Death Penalty in Tanzania: Law and Practice – 2019

ACtHPR – The Matter of Marthine Christian Msuguri v. United Republic of Tanzania – 1 Dec. 2022

Daily News – Legal experts advise on abolition of death penalty – 17 Sept. 2022

The Death Penalty Project – The Conversation: ‘Why has Kenya not abolished the death penalty? Habit and inertia’ – 21 Sept. 2022

Anadolu Agency – Tanzania commutes death sentences of 256 convicts – 12 Sept. 2022

Tanzania Reverses Ban on Teenage Mothers in School…Sort of

By: Meghan Wright

Journal of Global Rights and Organizations, Associate Articles Editor

UNITED REPUBLIC OF TANZANIA – In September 2022, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) recommended that Tanzania reform its education policies after ruling that expelling pregnant students from school violated adolescent girls’ human rights. The case, Legal and Human Rights Centre and Center for Reproductive Rights v. United Republic of Tanzania, was brought in June 2019 on behalf of six adolescent girls who were expelled from school for being pregnant, as well as all girls in Tanzania. This case centers around a 1960’s policy implementing a controversial ban that would remain in practice for decades.

15-year-old Tanzanian mother with her baby. Photo Courtesy of Human Rights Watch.

In 2017, then-President John Magufuli made official the 1960s policy that prohibited pregnant girls from returning to school after they gave birth. The late President of Tanzania did not want his government to educate mothers, saying: “I give money for a student to study for free. And then, she gets pregnant, gives birth, and after that, returns to school. No, not under my mandate.” This policy led to more forced pregnancy testing and the expulsion of girls found to be pregnant. Magufuli grounded the power to enforce this ban in the Tanzania Education Act. The Act states that expulsion for a student is deemed necessary when they have “committed an offense against morality.” Pregnant girls and mothers were deemed immoral by the Magufuli Administration.

In March 2021, Samia Suluhu Hassan, Tanzania’s first female president was elected after the death of Magufuli. The Administration announced that pregnant schoolgirls would be allowed to continue their education after giving birth. While they may return after giving birth, the girls are still unable to attend school while pregnant because “there are a lot of activities which may or may not be favorable for pregnant girls,” and “the situation will not be favorable for the other pupils.” While the lift on the ban allows mothers to return to school, pregnant girls are still disadvantaged while trying to obtain an education. The lift is a step in the correct direction for women’s educational rights in Tanzania, but many more steps still need to be taken.

In 2021, the World Bank reported that “[m]ore than 120,000 girls drop out of school every year in Tanzania. 6,500 of them because they are pregnant or have children.” Societal norms instilled by past presidencies – that expulsion is legally necessary for pregnant students – have controlled the educational rights of thousands of girls. This damage to those girls is not simply fixed by lifting the ban on them returning to school after they give birth. The Tanzanian government has pledged to adopt additional measures, but those remain to be seen. 

 

For further information, please see:

Al Jazeera – Activists worked to end pregnant schoolgirl ban. They succeeded – Nov. 27, 2021 

Center for Reproductive Rights – African Committee Recommends Tanzania Reform Policies That Barred Pregnant Girls from School – Sept. 20, 2022

Human Rights Watch – Tanzania Allows Teenage Mothers to Be Back in School – Apr. 1, 2022

The Borgen Project – EDUCATION FOR PREGNANT STUDENTS IN TANZANIA – Aug. 24, 2022

The Guardian – Tanzania to lift ban on teenage mothers returning to school – Nov. 26, 2021

Proceedings will continue against LRA Leader Vincent Otti for attacks against civilians and the Government of Uganda

By: Wendy Neeley

Impunity Watch News Staff Writer

Kampala, UGANDA – The International Criminal Court (ICC) recently made a ruling on the case of Vincent Otti. The prosecution has made a “Renewed Request to Terminate Proceedings against Vincent Otti on Account of His death.”

Two men that survived the massacre and live with bullets still in their bodies. Photo Courtesy of Justice and Reconciliation Project.

A warrant for the arrest of Vincenti Otti was issued in July of 2005. The warrant of arrest cites Otti’s connections with The Lord’s Resistance Army (LRA). The LRA is an armed group that has been involved in attacks against the Government of Uganda and the Ugandan Army for over 30 years. The warrant alleges that the LRA is responsible for violence such as “murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have been forcibly ‘recruited’ as fighters, porters and sex slaves.” Otti was included in the highest level of leadership for the LRA and he is charged with being criminally responsible for six attacks including one which is described as “hacking and shooting civilians.” He is also reportedly responsible for the Ataik Massacre of April 1995 during which LRA soldiers opened fire on 300 civilian men and boys while the women and children were required to watch and applaud the LRA.

However, in October of 2008, the prosecutors requested that the warrant for Otti be withdrawn and offered some preliminary information in support of the claim that Otti had died. Additionally, in March of 2022 the prosecution filed a request to terminate the proceedings against Otti based on his death. The prosecution claims that there is persuasive evidence that Otti was killed around October 2, 2007 in the Democratic Republic of Congo. The prosecution supplemented the claim in May 2022 based on information obtained from the Government of Uganda indicating that Otti was deceased. The evidence presented to the Court include witness statements, reports from media, and interviews from some Ugandan authorities.

However, in considering the evidence the court determined that it is not significant enough to prove the death of Otti. They indicate that there has been no body discovered and no official death certificate issued. As such, the Court determined that it would not be appropriate to terminate the proceedings against Otti and the prosecution’s request was rejected.

 

For further information, please see:

International Criminal Court – Decision on the Prosecution’s ‘Renewed Request to Terminate Proceedings against Vincent Otti on Account of His Death’ – 10 Dec. 2022

International Criminal Court – Warrant of Arrest for Vincent Otti – 8 July 2005

Liu Institute for Global Issues and the Gulu District NGO Forum – The Justice and Reconciliation Project: Field Notes, Remembering the Ataik Massacre April 20th 1995 – 04 Apr. 2007

NTV – How Vincent Otti’s son came to terms with his family’s history – 29 May 2021

AfCHPR Reaches Judgment Following Tanzania’s End on its Ban of Pregnant Girls in School.


Alexa Connaughton
Impunity Watch News Staff Writer

TANZANIA – In 2002, Tanzania enacted an amendment to the Education Act which banned pregnant girls from attending school, even after they had given birth. The effects of this policy were disastrous, leading to the expulsion of thousands of girls, making them unable to complete their compulsory education.

Girls on their way to school. Photo courtesy of Center for Reproductive Rights.

According to the Center for Reproductive Rights, Tanzania has one of the highest rates of child marriages in the world. Many schools lack of sex education and students don’t have access to information on how to prevent pregnancy, yet young girls are still subjected to this rule. Teachers and school administrators are left to enforce the policy with many schools choosing to conduct mandatory pregnancy tests, though there is nothing in the amendment to call for that.

Petitions regarding this matter have been brought to many different courts since the amendment’s inception. In 2012 the Legal Human Rights Center and the National Organization for Legal Assistance filed a petition with the High Court of Tanzania, on behalf of schoolgirls in Tanzania. Their petition was against the Minister of Education and Vocational Training, and the Attorney General of Tanzania. The petition alleged that the policy violates the Article 13 of the Constitution of Tanzania, which protects equal rights and non-discrimination. However, this petition was dismissed in 2017 after five years.

In November 2020 a petition on behalf of six Tanzanian girls who were expelled from school was brought before the court, in the case Tike Mwambipile and Equality Now v. United Republic of Tanzania. The petition alleged that the amendment violated the girls’ rights to education and non-discrimination. Seven different organizations also filed amicus curiae briefs, some of which included the Human Rights Watch and UNESCO. The Court recently released its judgment on this matter deciding that the petition was inadmissible due to the fact that another petition was filed with the African Committee of Experts on the Rights and Welfare of the Child who held a hearing on the matter in November 2021. Following that hearing Tanzania’s Ministry of Education adopted Circular No. 2 which reinstated students and effectively ended Tanzania’s ban on teen mothers in schools. However, Tanzania was one of three countries in the sub-Saharan African region which adhere to an official ban against pregnant students and Tanzania has yet to codify a protection of girls’ right to access education, regardless of pregnancy.

For further information, please see:

AfCHPR – Tike Mwambipile and Equality Now v. United Republic of Tanzania – Dec. 1, 2022

Center for Reproductive Rights – Center for Reproductive Rights and the Legal and Human Rights Centre file a complaint challenging the expulsion and exclusion of pregnant schoolgirls in Tanzania – June 17, 2019

Center for Reproductive Rights – Tanzania’s Policy Change Will Allow Pregnant Schoolgirls to Continue Their Education – Dec. 22, 2021

Equality Now – African Court On Human And Peoples’ Rights To Give Verdict On Case Challenging Tanzania’s Ban On Pregnant Girls And Adolescent Mothers Attending School – Nov. 20, 2022

Human Rights Watch – Tanzania: Pregnant Student Ban Harms Thousands – Oct. 6, 2021