President Yoweri Museveni’s New Year address was a study in presidential hubris. Arrogant, insulting and condescending, and consistent with his past behaviour, President Museveni blamed “internal enemies of Uganda” for his many failures without taking personal responsibility for failing Ugandans. He singled out the political class, the clergy, academia, the media and the youth for particular insult and ridicule. During his 32 years of dictatorship, President Museveni developed a consistent pattern of deploying hate speech to insult or ridicule his political opponents as a most preferred strategy of regime survival. Incitement of his supporters against his political opponents is the corner stone of his policy.

The impact of President Museveni’s policy on incitement or use of hate speech has led to persecution of his political opponents based on his statements that underpin or justify, amongst other mischiefs, ethnicity as a ground for discriminating against others. President Museveni uses and has used, hate speech to incite or persecute members of other ethnic groups and political adversaries with intention to encourage violence against the “other”.  President Museveni, for example, uttered words of incitements in public places, such as at political rallies or press conferences. The impact of such hate speech is intended to incite his audience against other targeted ethnic groups or political opponents.

The dangerous practice of abuse of ethnicity to de-legitimise, demonise, or ridicule others gained traction as President Museveni, after accumulating too much executive and military power, began to denigrate his critics by calling them dogs, pigs, rats, or cockroaches. President Museveni uses these words to terrorise, threaten, subdue or instill fear in his political opponents and other ethnic groups.  The ideologies of hatred, incitement or persecution are inculcated in the minds of National Resistance Army/National Resistance Movement (NRA/NRM) members at the Kyankwanzi political school under the supervision of the NRA/NRM’s high command and approval of its chairman, self-styled General Yoweri Museveni.

Excessive concentration of power in Museveni the person is premised on the confluence of ethnicity, nepotism and patronage in his hands and the leadership of the NRA/NRM regime. This concentrated power places Museveni at the apex of power, and his words were/are as good as law passed by parliament. The concentration of power in Museveni’s hands ultimately created a breeding ground for discriminatory acts of persecution of other ethnic groups and political adversaries. These acts of persecution are committed in violation of basic constitutional principles of equality of all citizens before the law.

In adopting ethnicity and hate speech as policy, Museveni did not only favour his ethnic group against other groups; he also violated the Constitution of Uganda and other national and international laws.  Similarly, by dispensing patronage to some people who do not necessarily belong to members of his ethnic group, that act of dispensing favours to some, while excluding other Ugandans, constitutes a discriminatory act. In sum, acts of discrimination may be committed directly by President Museveni, or on his orders, or by his subordinates if he knew or should have known that the acts were about to be, or had been committed. These incendiary acts uttered by President Museveni or his agents/subordinates may constitute crimes of persecution.

In general terms, to persecute a person is to single out that individual and subject him or her to prolonged discriminatory hostility or ill-treatment.  A person, acting for or on behalf of the state, or as its agents, may also commit crimes of persecution when they persistently harass targeted individuals or groups, because of race or political or religious beliefs. The state of being persecuted may be extreme and may include a program or campaign to exterminate, drive away, depopulate or subjugate people based on their membership in religious, ethnic, social or racial groups.

Acts of persecution manifest themselves in many forms. Persistent or constant harassment by members of the military, security, intelligence agencies and other agents of the state are some of the elements of crimes of persecution. The criminal acts include those of official or unofficial state agents who regularly demand, for example, payment of protection money, free services or other forms of bribes or irregular payments. These acts may constitute persecutions at different levels and varying degrees of criminality. However, while some acts may constitute minor crimes or ordinary misdemeanour, other more severe acts of persecution may rise to the level of international crimes such as crimes against humanity.

Under international law, there are precedents that support the view that actions or omissions of the NRA/NRM regime under President Museveni may rise to the level of international crimes and therefore meet the necessary threshold for prosecution before domestic or international courts or tribunals. The fact that not a single member of the NRA/NRM has so far faced trial before a local court for persecution as a crime against humanity is not evidence that no crimes of persecution have been committed.  It simply demonstrates that political considerations under authoritarian, totalitarian or dictatorial regimes take precedence over judicial justice. Therefore, absence of judicial justice and consistent abuse of the legal process by the regime which permit alleged perpetrators to avoid investigation or prosecution by the relevant national investigatory or prosecutorial authorities such as the Uganda Police Force, the Directorate of Public Prosecution or the Inspectorate General of Government, are not only evidence of abuse of office, but also a violation of Uganda’s constitution and other national laws.

Under international humanitarian law, a crime of persecution may be prosecuted as crimes against humanity. International criminal law jurisprudence provides an authoritative definition of crimes of persecution.  According to the International Criminal Tribunal for Rwanda (ICTR) case of the Prosecutor v Georges Ruggiu [[1]] basic elements of acts of persecution, as crimes against humanity, include, inter alia, a) those elements required for all crimes against humanity under the Statute [[2]] b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 4,[3] c) discriminatory grounds (emphasis added).

The “discriminatory grounds” enumerated in article 4 of the ICTR Statute is a key element when examining criminal acts or omissions committed by President Museveni and other members of the NRA/NRM regime in the course of the implementation of its ethnic-based policies. This includes the broader discriminatory acts of economic, political or social exclusion that are intended to deny other ethnic groups various public services customarily provided by the state to all its citizens without bias or discrimination.

However, while some of the broader discriminatory acts of exclusion may constitute ordinary crimes under Uganda’s Penal Code or other national laws, such acts may not necessarily rise to the level of persecution as crimes against humanity. For example, when the NRA/NRM regime denies other ethnic groups access to schools and colleges with proper educational standards or competence equivalent to or similar to those where they send their children or members of their ethnic groups. These acts are unfair and wrong, but may not necessarily constitute criminal acts under Ugandan laws.

The denial of these services often takes place because the government refuses or neglects, as a matter of policy, to offer services to members of targeted ethnic groups or political opponents. These selective denials of services, based on targeting specific ethnic groups or members of a given political party, are taken by the government as part of a deliberate policy to punish people in areas that do not support President Museveni and his party, or from 1996, have not generally voted for Museveni in every presidential election.

Some of the discriminatory acts of exclusion include irregular and unfair recruitment in public service, military, security and intelligence agencies. Thus, these forms of discriminatory acts of exclusion, while serious and have far-reaching consequences on the discriminated ethnic group, do not often rise to the level of prosecutable criminal acts or omissions notwithstanding that they do cause irreversible harm on the discriminated ethnic group and their descendants. Three generations of Acholi people are negatively impacted by Museveni’s policy of exclusion based on ethnicity. Other generations of youth in Lango and Teso are similarly impacted by Museveni’s policy of ethnic exclusion.

However, there are acts that may sustain charges of persecution as crimes against humanity. Ruggiu’s case provides a benchmark for assessing acts or omissions of the NRA/NRM leadership in inciting their members or subordinates to engage in acts that may constitute persecution. In the Ruggiu case, the chamber explained what constitutes common elements of crimes of persecution. The chamber emphasised that a radio may be considered an instrument to incite the public. The chamber opined:

“…Those [inflammatory acts disseminated through] public radio broadcasts all aimed at singling out and attacking the Tutsi ethnic group and the Belgians on discriminatory grounds, by depriving them of the fundamental rights of life, liberty and basic humanity enjoyed by members of the wider society. The deprivation of these rights can be said to have as its aim the death and removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself.” [[4]]  (Emphasis added)

President Museveni has, on several occasions, derogatively referred to his political opponents as “biological substance” who must be eliminated, or “pigs”, or “cockroaches” with the knowledge that these phrases would incite his supporters against his political opponents. President Museveni also knows that these words are both inflammatory and discriminatory. Museveni uttered these incendiary words several times over, and they were repeated on government-owned radio and television channels, including private radio stations and newspapers. Individuals described as such were treated with contempt and hatred by the NRA/NRM regime. These targeted individuals were deemed enemies of the state, some have been killed under mysterious circumstances while others have disappeared and have never been seen alive again. 

Further, working under Museveni’s orders as President of Uganda and Commander-in-Chief of Uganda Armed Forces, the Uganda People Defence Force (UPDF), Chieftaincy of Military Intelligence (CMI), Internal Security Organisation (ISO) and External Security Organisation (ESO) listen to every word Museveni utters, act on it and implement it. President Museveni’s subordinates, therefore, have, on numerous occasions, based on discriminatory grounds, unlawfully arrested civilians, or other combatants of the various rebel groups (for example, Allied Democratic Forces, Lord’s Resistance Army, Uganda Peoples Army, etc.) confined them in “safe houses” where many were tortured while some were made to disappear and have never been seen again. These discriminatory acts, based on President Museveni’s utterances may constitute, amongst other crimes, crimes of persecution as articulated in Prosecutor v Georges Ruggiu cited above.

Under international humanitarian law, persecution may take diverse forms and does not necessarily require a physical act. [[5]] Crimes of persecution may include acts enumerated under other sub-headings of crimes against humanity, such as murder or deportation, when they are committed on discriminatory grounds. Persecution may also involve a variety of other discriminatory acts, not enumerated elsewhere in the Statute, involving serious deprivation of human rights. [[6]] For example, acts of violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishment; taking hostages; acts of terrorism; outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, are elements that may constitute crimes of persecution when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.

A successful prosecution of a crime of persecution requires finding of discriminatory intent on racial, religious or political grounds explicitly. In Nahimana et al., the trial chamber noted that this requirement had been broadly interpreted by the ICTY to include discriminatory acts against all those who do not belong to a particular group. [[7]] [Emphasis added]

According to the Nahimana et al. trial chamber, the learned judges opined:  

“The crime of persecution is also defined in terms of impact. It is not a provocation to cause harm. It is itself the harm. Accordingly, there need not be a call to action in communications that constitute persecution. For the same reason, there need be no link between persecution and acts of violence.” [[8]]  [Emphasis added]

The Trial Chamber continued:

“Persecution is broader than direct and public incitement, including advocacy of ethnic hatred in other forms.” [[9]]

Based on the Nahimana et al. precedent, a perpetrator may be held accountable for acts of persecution such as making speeches or writings, which through public lectures, political rallies, radio or television broadcast, are disseminated to the public with the intention to incite direct perpetrators. Similarly, activities of political parties, as for example the Coalition for the Defence of the Republic (CDR) party (an extremist Rwandan political party during the 1994 genocide which incited Hutu extremists groups to kill members of the Tutsi ethnic group and moderate Hutus) was held by the trial chamber to constitute acts of persecution because it was deemed a lesser form of harm than extermination as a crime against humanity.  In sum, the chamber held that these actions by the accused constitute multiple different crimes, for which they can be held separately accountable. [[10]] 

To put the judgement of Nahimana et al. into context, it is helpful to recall the trial chamber observed that in Rwanda, the targets of attack were the Tutsi ethnic group and the so-called “moderate Hutu political opponents” who sympathised or supported the Tutsi ethnic group. The chamber thereafter concluded that there were two attacks: first, attacks directed at the Tutsi ethnic group, and second, attacks directed at the moderate Hutu political opponents. Both attacks were carried out by the Hutu extremists. The trial chamber then explained the relevant legal elements as follows: 

“The group against which discriminatory attacks were perpetrated can be defined by its political components as well as its ethnic component.” [[11]]  [Emphasis added]

The moderate Hutu political opponents were defined by their political components while the Tutsis were defined by their ethnic components. In the Ugandan situations, acts of provocation or persecution by the Museveni regime were directed against other ethnic groups other than his ethnic group. But Museveni also targeted some members of his ethnic group – the moderate Banyankore sympathetic to the other ethnic groups because they were/are not fully supportive of his regime just as the Hutus targeted their own moderate members.

Further, President Museveni also targeted different members of his political opponents, namely, the Forum for Democratic Change (FDC), Uganda People’s Congress (UPC) or Democratic Party (DP) regardless of their ethnic identities. All these acts of persecution, based on discriminatory grounds, may constitute crimes against humanity because the discriminatory attacks perpetrated by members of the NRA/NRM against their victims can be defined by their political components as well as their ethnic components.

The Nahimana et al trial chamber clarifies further the nexus between political and ethnic identity. The trial chamber observed:

“[Radio Télévision Libre des Mille Collines] (RTLM), Kangura and CDR essentially merged political and ethnic identity, defining their political target from ethnicity and political positions relating to ethnicity. The discriminatory intent of the accused falls within the scope of the crime against humanity of persecution on political grounds of an ethnic character.” [[12]] 

It can, therefore, be persuasively argued that the NRA, during its 20 war  (1986-2006) against the Acholi Nation, essentially merged political and ethnic identities, defining their political target on the basis of ethnicity and political positions relating to the ethnicity of the Acholi ethnic group.

With respect to hate speech, in referencing elements of persecution as held by Ruggiu, the trial chamber noted that “hate speech targeting a population on the basis of ethnicity, or other discriminatory grounds reaches this level of gravity and constitutes persecution under Article 3 (h) of [the ICTR] Statute.” [[13]] The trial chamber further clarified the elements of the crime of persecution as follows:

“Hate is a discriminatory form of aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only in the eyes of the group members themselves but also in the eyes of others who perceive and treat them as less than human. The denigration of persons on the basis of their ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm.” [[14]] 

It is reasonable to infer that President Museveni, his senior presidential advisers and the NRA/NRM leadership or functionaries intentionally used these languages to denigrate their real or perceived political adversaries on the basis of their ethnic identities or other group memberships. These languages were directed at, for example, members of Acholi, Lango or Teso ethnic groups; or members of DP, FDC or UPC political parties; or other civil societies. The use of derogatory language was also part of a strategy to prepare grounds for maliciously charging accused persons with treason, terrorism, rape, or sedition as were the case of Stella Nyanzi and the rape case against Kizza Besigye. Overall, the use of derogatory language against members of ethnic groups or political parties does irreversible harm to the reputation and character of innocent people. Such acts, in law, may constitute persecution as crimes against humanity.

* Dr. Alex Obote Odora is a specialist in International Criminal Law.