BOSSA: An African criminal court? It has its merits but we are not ready for it

Justice Solomy Balungi Bossa, The former judge at Uganda’s Court of Appeal. She was recently elected to the International Criminal Court. PHOTO FILE | NATION 

In Summary

Solomy Balungi Bossa, 61, is a judge at the International Criminal Court.

• Background: Justice Solomy Balungi Bossa has more than 25 years of international experience in judicial practice, human-rights, humanitarian law, criminal law and constitutional law.
• Experience: Before her appointment as judge to the International Criminal Court on December 6, 2017, Justice Bossa was a Judge of the Court of Appeal/Constitutional Court of Uganda.
  1997-2013: Judge of the High Court in Uganda
  2001-2006: Judge of the East African Court of Justice
  2003-2013: Served on the United Nations International Criminal Tribunal for Rwanda.
  1981-1997: Lecturer/law reporter at the Law Development Centre of Uganda
• Education: Justice Bossa holds a Bachelor of Laws Degree (LL.B) Honours from Makerere University and a Master of Laws Degree (LL.M) from the University of London.

By IVAN OKUDA
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The former judge at Uganda’s Court of Appeal Solomy Balungi Bossa was recently elected to the International Criminal Court. She spoke to Ivan Okuda about Africa and the global justice system.

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You are now part of a court that has come under immense criticism for being, in the words of President Yoweri Museveni, “an agent of imperialism and western domination of poor countries.” Your view?

That is a perception problem that we need to dispel. The International Criminal Court was set up to bring justice to victims of the worst crimes, including genocide, crimes against humanity and war crimes. The ICC is not about leaders.

If victims cannot receive justice in their own country then there is a need for another avenue to accord it to them. The fact that the ICC has only prosecuted Africans reinforces the perception that it is targeting Africans.

The ICC needs to look beyond Africa. But it is also true that African countries, Uganda included, have referred cases to the ICC.

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Indeed, the African region has the largest number of countries that are signatories to the Rome Statute which formed the ICC in 2002. African leaders need to re-examine themselves rather than simply disparage the court.

It has been argued that indigenous justice systems such as the Gacaca courts in Rwanda and mato put of the Acholi in Uganda are more in tune with the socio-economic and political aspirations of the societies they serve and are, therefore, better suited than the ICC...

That is true but we must also appreciate that there are levels of crime and each is suited to a particular justice system.

For example, ordinary citizens might commit a crime because they have been ordered to do so or they have been brainwashed into doing so. Such cases can be tried in indigenous courts.

There are also those who conceive and direct the execution of these crimes — the leaders. You cannot place the two groups on the same pedestal.

The international courts watch out for that level of crime involving leaders, such as ministers, presidents, militia and police.

Equally, when a country has been through a devastating war, such as Rwanda which experienced the 1994 Genocide against the Tutsis, and Yugoslav which went through a series of ethnic-based insurgencies from 1991 to 1999/2001, most services collapse.

The wars rendered courts dysfunctional; magistrates were killed... where does such a country start from? Somebody has to step in. The United Nations came in and said okay let’s try those who are most responsible for committing these crimes.

What is your view on the suggestion that Africa needs a homegrown court to deal with crimes committed on the continent?

There is a draft protocol to that effect. It was first passed in 2014, setting up an African court with three jurisdictions — human-rights, international criminal law and a court of justice to interpret the African Charter on Human and Peoples’ Rights and its protocols.
There is merit in saying that we can have our own court but legal and jurisdiction issues would arise, including the complementarity principal, how would it work? The ICC is based on complementarity.

The ICC intervenes only if a state fails to investigate and prosecute so how will that work with the African court?
There is also the need to ensure that the court has a wider jurisdiction to tackle corruption, economic crimes and other international crimes.
Another challenge centres on costs. This is supposed to be a larger court than the African Court on Human and People’s Rights which has 11 judges.

The proposed one has 18 judges. How will the funds be generated to ensure its smooth running? These issues must be addressed before this court can become operational.

Describe your experience in the International Criminal Tribunal for Rwanda.
It was frightening because we listened to horrific stories. It is sad to see human beings reduced to such a level. An animal will kill because it is hungry or because it feels threatened.

We human beings appear to be motivated by something beyond us to engage in senseless killings. It was a grueling experience listening to witnesses who were broken and judging the accused who were placed before us; it was not an easy job.

Which case in particular touched you?
I spent most of my time in the tribunal sitting on the biggest case — the Butare Trial.

We tried six people — a minister, two prefects, two mayors who were called masters and one militia — for crimes related to the genocide.

We had the highest number of witnesses on that case — more than 200 for both the defence and the prosecution; we listened to horrific accounts of the war which was not easy.

Any lessons learnt from that trial?

I learned that justice is necessary for the healing of the wounds of the traumatised and those who have lost their loved ones, who happened to be on the wrong side of the divide but are not guilty of any wrongdoing.

I also learnt there is a need to end impunity because a culture of impunity breeds atrocities. Another lesson is that justice is slow and expensive but it is necessary and that the truth always wins. When the facts are proven, it is difficult for people to deny what happened.

What is your assessment of the Ugandan Judiciary?

Some judicial officers are trying their best to do what is right but unfortunately the few who do not measure up to the standards tarnish the name of the entire system.

Not everyone in the Judiciary is corrupt; not everyone is lax. The problem of the judiciary is wider than the judges; there are advocates, clerks and litigants but the blame always falls on the judges.

The judiciary is also starved of money. As of last year, it received just 0.06 per cent of the national budget yet it is supposed to dispense justice. Conflict resolution has everything to do with peace and development but it is not taken seriously.

The Judiciary is trying from within to fulfill its mandate but the other players must also do their part.

There have been allegations that judges are appointed based on their political affiliations?

It is up to the Judicial Service Commission to correct that perception.

Where do you stand on the question of the death sentence?

I don’t believe in the death sentence and at the international level we don’t mete out the death penalty. Even with genocide convicts we never sentence them to death. It serves no purpose.

How would you summarise your duty as a judge?

My duty to society is to live well in it, to relate well with all the people that live there and to assist those who need assistance.