By Herbert Karugaba
I wish to respond to President Museveni’s missive on torture. On May 15, online the President wrote to the Uganda People’s Defence Forces (UPDF), see the Uganda Police Force (UPF) and other security agencies all of which fall under his direct command and supervision.
I will first deal with two aspects of that missive. He glibly argued that torture used to be applied under African customary practices, unhealthy but he did not distinguish or explain the fact that torture was not always indiscriminately applied to everyone suspected of a crime.
The proverb he quoted “Akabwa kaibire kariha omugoongo gwako” (a dog which has stolen pays with its back) refers to a guilty party and the punishment that person receives.
It does not refer to someone who is merely suspected of a particular offence. There were procedures which had to be taken before a verdict of guilt was arrived at.
It, therefore, does not refer to a person who was merely suspected of committing a crime.
The second aspect is Mr Museveni’s reference to the fact that the allegations of torture were or are being brought up by the media and CSOs.
The Inspector General of Police Kale Kayihura has categorically told the press in the past that he gets his orders directly from Mr Museveni, and not the line ministers.
Mr Museveni gets daily Intelligence Briefs from all the armed forces and intelligence organisations.
It is, therefore, inconceivable that he has no direct knowledge of what has been going on in places like Nalufenya Police Station.
He himself told the nation that the police are highly infiltrated by criminals when he visited the late AIGP Felix Kaweesi’s home in Kulambiro.
This then brings me to the question of Command Responsibility.
I would like to draw Mr Museveni’s attention to Command Responsibility, sometimes referred to as the Yamashita Standard or the Medina Standard, and also known as superior responsibility, is the legal doctrine of hierarchical accountability.
The term may also be used more broadly to refer to the duty to supervise subordinates and liability for the failure to do so, both in government, the military and corporations and trusts.
The doctrine of “Command Responsibility” was established by The Hague Conventions of 1899 and 1907. It was applied for the first time by the German Supreme Court at the Leipzig War Crimes Trials after World War I in the 1921 trial of Emil Müller.
The “Yamashita Standard” is based on the precedent set by the United States Supreme Court in the case of Japanese Gen Tomoyuki Yamashita. He was prosecuted in 1945 for atrocities committed by troops under his command in the Philippines during the Pacific Theatre of World War II.
Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”
The “Medina Standard” is based on the 1971 prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War.
It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action.
In The Art of War, written during the 6th Century BC, Sun Tzu argued that it is a commander’s duty to ensure that his subordinates conducted themselves in a civilised manner during an armed conflict.
Similarly, in the Bible (Kings 1: Chapter 21), within the story of Ahab and the killing of Naboth, King Ahab was blamed for the killing of Naboth on orders of Queen Jezebel, because Ahab (as king) was responsible for everyone in his kingdom.
Under the Gen Yamashita 1945 precedent, the superior is responsible for crimes of his subordinates and for failing to prevent or punish (as opposed to crimes he ordered). Before a United States military commission in 1945, Gen Yamashita became the first to be charged solely on the basis of responsibility for an omission.
He was commanding the 14th Area Army of Japan in the Philippines during the Pacific Theatre of World War II when some of the Japanese troops engaged in atrocities against thousands of civilians and prisoners of war.
As commanding officer, he was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”
After World War II, the parameters of Command Responsibility were thus increased, imposing liability on commanders for their failure to prevent the commission of crimes by their subordinates.
Mr Museveni, therefore, must do more than just write letters in order to make torture a thing of the past.
Mr Karugaba is a former CID director.