23 Jan 2024

Fauna / Justice for herders depends on halting Uganda’s military trials

Ratifying and implementing the Mifugo Protocol is a better way to achieve stability in the Karamoja Cluster in East Africa.

Three Ugandan geologists and two soldiers were gunned down by suspected Turkana herders on 21 March 2022. The five were on a mineral mapping mission in Karamoja in north-east Uganda.

Ugandan military officials said the geologists and their security officials were attacked out of ‘ignorance’ by suspected cattle rustlers. The geologists posed no threat to the cattle rustlers, but the armed non-state actors assumed they were government officials and a danger to them.

The Turkana, a nomadic pastoralist community inhabiting north-west Kenya, often cross into Uganda over the Lokiriama border for pasture and water during the dry season.

In response to the killings, Uganda’s President Yoweri Museveni issued Executive Order No. 3 of 2023. The order stipulated, first, that the Turkana may not enter Uganda with guns. If found with guns, they would be charged with terrorism and tried by military courts. Second, the geologists’ killers must be handed over to Ugandan authorities to be tried for murder. Third, the Turkana must return 2 245 stolen livestock to the Karimojong people of Moroto. Finally, if these steps weren’t taken, the Turkana were to be expelled permanently from Uganda.

The Turkana often cross into Uganda for pasture and water during the dry season over the Lokiriama border

Subsequently, in April 2023, the Ugandan People’s Defence Force (UPDF) arrested and court-martialled 32 Turkana herders, jailing them for up to 20 years each at the Moroto Government Prison. The herders were jailed under section 119 of the UPDF Act, which states that any person found with illegal weapons is subject to a military trial. UPDF Commander Brigadier General Joseph Balikuddembe said the suspects were found with 31 guns and 752 rounds of ammunition.

The Turkana herders’ military trial follows a trend of UPDF prosecutions of civilians for offences such as murder and robbery in Uganda. This despite the Supreme Court in 2009 and the Constitutional Court in 2022 declaring it unconstitutional and a violation of international law. Because military trials are conducted behind closed doors, they are not transparent and reportedly violate international legal standards – the trial of herders in military courts violated their right to a fair trial in a civil court of law.

The March 2022 killing and Uganda’s issuance of Executive Order No. 3 point to a lack of bilateral or multilateral legal frameworks for resolving cross-border cattle rustling incidents.

The Revised Protocol on the Prevention, Combating and Eradication of Cattle Rustling in Eastern Africa (Mifugo Protocol) envisages mechanisms for cross-border prosecutions, extraditions and joint operations by regional security apparatus in stemming cattle rustling in Eastern Africa.

Last October, the Eastern Africa Police Chiefs Cooperation Organization (EAPCCO) met in Burundi to review the regional state of security. Among the matters they discussed was the progress made in ratifying this protocol. The Chiefs of Police Committee noted South Sudan and Uganda’s efforts in fast-tracking the protocol’s ratification.

Traditional peace structures don’t work as they should – giving community warriors space to terrorise the region

EAPCCO member states attributed the delay to Article 26 (b), which stipulates that the Mifugo Protocol will come into force immediately after its signing by security ministers, pending parliamentary ratification by EAPCCO member states. This was an anomaly, they argued – since ratification was key to domesticating treaties in national laws. Its non-ratification was therefore attributed to the delay in implementing the protocol in Kenya, Sudan and Ethiopia.

Governments’ failure to expedite the ratification of peace instruments such as the Mifugo Protocol is a missed opportunity for the region. The free flow of small arms and light weapons, revenge attacks, over-reliance on the pastoralist economy, an outdated cattle rustling culture and uncoordinated disarmament exercises undermine peaceful co-existence among border communities.

On top of this, traditional peace structures do not work as they should, giving community warriors (men aged 15 – 30 who serve traditionally as warriors) space to terrorise the region.

Article 1 (c) of the Mifugo Protocol defines cattle rustling as including theft, banditry, stealing, planning, organising, attempting, aiding or abetting the theft of livestock for commercial or private use. This definition positions it as a transnational organised crime, which involves detailed planning and execution, as well as facilitating other forms of transnational organised crime, like illicit arms flow in the region. It departs from national laws that proscribe various penalties for cattle rustling through the country’s penal code, which limits cross-border enforcement.

Ratifying the protocol could help control cattle rustling syndicates. It provides for sharing information on cattle rustlers and authorisation for cross-border investigative operations between regional counterparts. The ENACT Technical Coordinator at the Institute for Security Studies, Martin Ewi, believes the revised Mifugo Protocol could also provide a uniform legal language and framework for prosecuting suspects in East Africa. He says it provides a unifying definition of cattle rustling as a form of transnational organised crime, and not a cultural practice.

Article 8 of the Mifugo Protocol establishes measures for branding and microchipping to facilitate livestock identification and tracing stolen cattle. Ewi says these measures would enable cross-border prosecutions as countries could monitor cross-border cattle movement.

Governments’ failure to expedite the ratification of peace instruments is a missed opportunity

Article 12 of the protocol addresses the handling of suspects. It provides for the handing over of suspected cattle rustlers (via extradition) to requesting member states after investigations are complete and provides a timeline of 10 working days for this. This serves to prevent communal punishments and prosecution of herders in non-civil law jurisdictions.

Ratifying and domesticating the Mifugo Protocol would contribute to sustained stability in East Africa. Kenya, Uganda, South Sudan and Ethiopia could do this through coordinating disarmament exercises and deploying security personnel along common borders to check for illegal firearm flows.

A more stable security situation may encourage much-needed social and economic investments from the national capitals and ignite more diversified opportunities. This needs to happen in conjunction with establishing a free and mandatory basic education system where children do not grow up only to be community warriors but responsible citizens who are equipped to contribute to the mainstream economic system.

EAPCCO member states, through its secretariat, should work with INTERPOL’s National Central Bureau to plan a timeline for the Mifugo Protocol’s ratification, and target anchor states such as Kenya, Uganda, South Sudan and Ethiopia.

Willis Okumu, Senior Researcher, ENACT and Guyo Turi, Research Officer, East Africa Peace Security and Governance Project

Image: FAO/UN


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