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Act cautiously on UPDF allegations in Somalia

Friday, November 21, 2014

By Rene M Ndyomugyenyi

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On the November 6, 2014, one daily newspaper carried a story of UPDF officers who have been suspended for suspected ‘sexual’ offences while on tour of duty in Somalia.

If this story is true, then it is absurd that UPDF leadership has taken such a humiliating and reckless measure against the highly acclaimed senior officers.

Reckless because a controversial ethical blindpost is now being erroneously translated into a legal breach, humiliating because of the derogatory and embarrassment implication to officers’ personal respect, command respect and to their families.

Nature of offence. Sexual exploitation and Abuse (SEA) is defined by the United Nations (ST/SGB/2003/13) as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, social or politically from the sexual exploitation of another.

Section 3 Subsection 3.2 paragraph (d) of (ST/SGB/2003/13) states that sexual relationships between United Nations staff and beneficiaries of assistance, since they are based on inherently unequal power dynamics, undermine the credibility and integrity of the work of the United Nations and are strongly discouraged.

In my view, the offence was created to ensure that physical aid is not abused by making sex a precondition of receiving the same.

The problem with the offence

There are two factual problems with the founding purpose of the offence in comparison to UPDF, particularly in regards to the implicated battle group III (2009) and V (2011)

a)    Control and proximity. This offence was initially meant for UN peace keepers (who had or have control and custody of civilians in camps or controlled a territory which had previously been in turmoil etc.) and were further in control of aid material (food, medicine etc). Both UPDF units were mobile combat forces that were engaged in the most fierce battles in Mogadishu.

b)    They had little (medical treatment) or no control over civilian population, the supplies they had were for troop consumption and not civilian purpose. Now if we agree that UPDF did not have custody and control over the ‘vulnerable civilians’, then the foundation of the parent accusations becomes shaky.

c)    Consensual sex. The second problem is that the distinction is blurred whereby consensual sex of passion and or commercialised sexual interactions (prostitution) cannot be overtly distinguished in practise from ‘exploitive’ sex.

d)    Indeed the pertinent Human Rights Watch (HRW) report mentions that some of the alleged victims had been recruited from camps by other local women who already had access to UPDF.

e)    This point supports the possibility of prostitution since from the WFP camps they came from; they already had supply of basic survival needs as opposed to trading sex for food. Vulnerable persons were primarily in IDP camps those who ventured out from camps to UPDF installations are likely to have been prostitutes. Those who were not in camps were and should be presumed ‘need stable’ not vulnerable for the purposes of my submissions.

Legal Constraints

If UPDF wants to prosecute these officers, it must make sure that the alleged offence constitutes comparable or compatible crime in Uganda’s legal system and to the best of my knowledge there seems to be none.

The danger here is that if UPDF leadership desperately wants to prove a point both locally and internationally, then it is likely to try to ‘force fit’ this misconduct into other well established sexual crimes even when the facts clearly do not match. Such charges will most likely be judiciary challenged from the outset.

Typically the offences, as alleged by the HRW report, in regards to exploitation are not even explicitly reflected in international humanitarian law treaties. As a result no international tribunal or the war crimes court is likely to try perpetrators of sexual exploitation in the near future because these offences are only contained in the Secretary-General’s Bulletins which cannot take legal precedence over any nation’s laws.

Problem with evidence: Any tribunal of fact chosen by UPDF (court or inquest) must be convinced beyond doubt. Their decision will be formed by direct victim accounts and even tests to their credibility.

The HRW report makes it so clear that for various reasons none of the victims is prepared to give evidence. Eye witness statements or accounts cannot tell us if indeed there was exploitation or consensual sex.

In testing the victims credibility we should also consider the possibility that the ‘victims’ were incentivised or hoped to benefit from their revelations since the report states that there was no voluntary reporting.

Properly addressing sexual exploitation

If indeed there is no legal framework to suite the charge of sexual exploitation then why initiate any sort of formal proceedings against these officers. The solution is not in the courts of law, instead UPDF/AU should be looking to set up specialised units that can be trained on field investigations, preventive sensitisations of soldiers and strengthening communal communication channels.

Yes I can understand the paradox the President faces, its rather difficult to technically and or legally ignore these accusations without being perceived as promoting or condoning the acts.

However, caution is paramount as UPDF is moving into an untested international legal waters, with little or no legal experience and investigative expertise. Much as I think it is an area of genuine moral/ethical concern, these officers of previously impeccable and distinguished service, some known for combat excellence beyond the call of duty should not be used as ‘guinea pigs’ its even not in the Ugandan public interest.

They should not be assumed culpable for unevidenced and unforeseeable moral or ethical side effects of spectacularly achieved objective. Regardless of the outcome of any legal steps being taken by UPDF against these officers, their reputation has been shattered primarily by publishing their names, secondly they are likely never again to be respected by men they command or worse, their wives and children.

The argument is not to negate or trivialise the gravity of the allegations, but to simply demonstrate the inherent dangers of legal reprimands.

The writer is the executive director of Corruption and Risk Advisory Bureau.

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