This Thursday 9th December 2021, The Nile Wires caught up with Counsel Mary Mutesi; Lawyer, political analyst and international relations expert in an interview about the legalities associated with the deployment of troops outside Uganda.
The Nile Wire brings you the full interview in this edition.
Background: When Brig Flavia Byekwaso, the UPDF spokesperson in the twitter press release on 30th November 2021 announced Uganda’s troop attacks on the hiding camps of the Allied Democratic Forces (ADF), a debate was sparked off especially among the legislators on the legality of this deployment. Many opposition Members of Parliament rose with bitter criticism against the president of the Republic of Uganda, H.E Gen. YK Museveni, and the commander in Chief’s decision to deploy troops outside Uganda without parliamentary approval. Many of these have continued calling it an abuse of the law, unconstitutional, and a disregard to the national parliament’s role and have called the minister of defense to make a statement on the matter.
Nile Wires: But is it true the President erred on proceeding to deploy without parliamentary approval?
Mutesi: An analysis of both the national and international law shall help to debunk what call politically orchestrated propaganda on this issue.
Such arguments are premised on section 39 of the UPDF act 2005 which states inter-alia that; the President may deploy troops outside Uganda for purposes of;
- a) Peacekeeping or;
- b) for peace enforcement.
Section 39(2) of the same act however continues to expressly state that; deployment of troops for purposes of peacekeeping shall be done with the approval of parliament.
Nile Wires: so if such is the law, why then does the President by pass the legal requirements?
Mutesi: it is a misconception for many people who read that section, and deduce meaning that the President erred in law by deploying troops without parliamentary approval.
You see, one of the founding fathers of the United States of America who signed the US Declaration of Independence; Dr. Benjamin Rush, once remarked in one of his civic engagements in the American Revolution that; “Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power knowledge gives.”
In that sense, constitutional enthusiasts seeking to promote the Rule of Law and constitutionalism in Uganda, must invest in understanding and acquiring knowledge in interpreting the Law as they make checks and balances.
NILE WIRES: do you mean to say Parliamentarians don’t understand the very laws they make?
Mutesi: sometimes they get it right, many others their understanding is lacking, and or they politic around the matter and elude the truth.
NILE WIRES: so according to you what is the truth of the law?
Mutesi: In the above-quoted section 39(1) of the UPDF Act, it is clear that the discretion to either deploy for purposes of either peacemaking or peace enforcement solely lies in the hands of the commander in chief.
The word “may” grants such discretion.
However, subsection 2 of section 39 comes in to specify the particular circumstances under which deployment MUST be done with the approval of parliament. The sub-section (2) of 39 expressly specifies peacekeeping as the only instance where such approval must be sought; the word “shall” leaves no discretion for the commander in chief.
Therefore, whereas section 39(1) is discretionary, subsection 2, in this case, is mandatory.
It thus leaves us to infer the facts of the deployment as to whether it is a peacekeeping or a peace enforcement operation.
NILE WIRES: what is the difference then? Is Uganda in DRC for Peace Keeping or Peace enforcement?
Mutesi: thank you, I will explain this.
The enforcement concept is closely linked to the UN Charter because it provides the legal basis for the distinction between peacekeeping and peace enforcement. Chapter 6 of the Charter deals with peacekeeping whereas, Chapter 7 deals with Peace enforcement.
In UN peacekeeping doctrine, peacekeeping is distinguished by three
Principles, namely: consent, impartiality, and the minimum use of force.
Peacekeeping is consensual; that is, the parties to a conflict agree to the force (army) assisting them with implementing a cease-fire or peace agreement. Peacekeeping operations strive to be impartial; that is, the parties to the conflict are treated equally. Peacekeepers are only permitted to use the minimum force necessary to protect themselves, those that they are mandated to protect, and the mission’s ability to achieve its mandate.
Enforcement is on the other hand understood as operations that do not necessarily require consent from the host nation or other parties to the conflict. In fact, peace enforcement typically presupposes that an aggressor(s) has (ve) been designated by the UN Security Council, and
that the use of force has been authorized to impose the will of the Council
on the aggressor(s).
Note An important distinction is that where peacekeeping is essentially defensive in nature, peace enforcement provides for offensive action.
In other words, peace enforcement means employment of operational and tactical procedures plus the necessary means of enforcement namely combat-ready troops, artillery, air support, combat logistics, etc.) to fight and sustain offensive combat operations
NILE WIRES: so what are we doing in the DRC? Peacekeeping or peace enforcement.
Mutesi: let us apply the Duck Test that; “if it looks like a duck, swims like a duck, quacks like a duck, then it is probably a duck.”
So from my last statement in the previous question, and from the information from the commanders on the ground, plus the Army spokesperson’s press briefs, the military tactics used, so to say surprise attack, the aerial strikes on 30th November on the camps of the ADF, etc, etc.
Uganda is on a peace enforcement mission and therefore well within the legal requirements of the UPDF Act 2005, and the UN charter.
NILE WIRES: is that all that legally justifies our troops’ presence in the DRC?
Mutesi: of course there is more, for example, article 51 of the UN charter; gives the right to any Nation to self-defense if an armed attack occurs against that member country.
In this case, Uganda had been severally attacked in the recent bombings in the capital Kampala, and earlier on the ISIS, a violent radical extremist group claimed responsibility through its affiliate the ADF.
Uganda has a right to pursue the enemy even when the enemy is hiding on another Country’s territory under the international law principle of hot pursuit.
NILE WIRES: apparently the UPDF operation Shujaa is a joint military operation with the DRC and FARDC the Congolese national army is involved. According to the UPDF spokesperson, Congo invited Uganda’s troops, what legal backing does the UPDF have in doing a joint crackdown of the ADF with DRC troops?
Mutesi: Drawing from long-standing international practice, states routinely deploy elements of their armed forces on the territory of other states within the framework of international military cooperation or international military operations carried out with the receiving state’s consent (crisis management operations). It is in the interest of the states sending their forces abroad (sending states), as well as the states receiving these foreign forces with their consent (host states), that the legal position of the visiting forces is abundantly clear. States and international organizations regularly enter into specific agreements and arrangements setting out the rights and obligations of these forces. These international agreements are part of the international law on military operations referred to as Status of Forces Agreements (SOFAs). The first set of bilateral agreements that today would qualify as SOFAs were concluded in World War I between a number of Allied states. Consequently, failure to come to an adequate agreement with host state authorities may hamper deployment of the troops or lead to termination of an ongoing operation, as it happened in Iraq in 2011 when the United States and Iraq could not agree on the terms of a new SOFA for the US troops stationed in Iraq.
Uganda and DRC have definitely signed such SOFAs, which are the basis of their joint operation. There is no way Uganda can just attack bases of ADF in Ituri and Beni, without expressing an agreement.
If relations between individual neighbors in a city suburb like Nansana are regulated, how much more shall it be for independent states?
NILE WIRES: well, thank you so much counsel Mutesi for your time and granting Nile wires this interview. You have clarified many legal issues for our readers.
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