Rwanda – Uganda’s Bilateral Relations: Do Refugees Contribute?

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN:
2628-6998, https://worldmediation.org/journal/

Disclaimer: The author works for the United Nations High Commissioner for Refugees (UNHCR). However, the content herewith presented does not represent the position of the UNHCR or the United Nations. It is the sole responsibility of the author.

Background: Rwanda and Uganda are neighboring countries that have a long history of friendship, and recently a history of enmity. While the open conflict started three years ago, analysts surmise it started in the 1990s when interests diverged. After failed mediation attempts under the auspices of the International Conference on the Great Lakes Region (ICGLR), the paper notes that the recent visit of President Museveni’s son to President Kagame of Rwanda on the 22 of January 2022 seems to be a game-changer or a sign of game change, of the sick bilateral relationships. This paper sets out to analyze conflict and conflict management strategies.

Methodology: This paper triangulates documents analysis and historiography in the view of ascertaining the applicability of political realism to the understanding of bilateral relations between Rwanda and Uganda since the 1990s, with a particular emphasis on the refugee factor.

Conclusion: The paper concludes that the realist view applies to the competing nature of the analyzed bilateral relations. It observes that the refugee factor is not the core root cause of the conflict. It, however, observes that refugees become a factor in the conflict those neighboring countries may fall back on to threaten or destabilize the security of their neighbors.

Recommendation: The paper recommends that host states observe asylum’s humanitarian and civil character. The paper recommends that the democratic states’ bilateral relations should not hinge upon the whims of Presidents’ family members but institutions. However, parties must snatch this opportunity when changes of attitude facilitate conflict resolution. They should also engage in constructive conflict management practices instead of threatening the human rights of each other’s populations. If this fails, the paper reminds regional bodies to take bold steps to recall their members’ obligations under international law.

1. Introduction

This paper sets out to analyse the bilateral relations between Rwanda and Uganda, focusing on the “refugee factor” in the conflict. It is divided into three major parts: the conflict context, methodological and theoretical considerations, factors and actors of the conflict, conflict resolution efforts, analysis of stakeholders, Museveni son’s visit to Rwanda, and final reflections.

2. The Conflict Context

In this section, the paper outlines primary economic and demographic data. It also reviews the history of the two states and outlines elements of friendship between the neighbouring countries.

Rwanda is a small country with a territory of 26,338 square kilometres. She is also known for un pays de mille collines, a thousand hills, after her mountains and rivers that meander through them before filling lakes spread across the country. With a subtropical climate, she has one of the highest population densities in Africa, 525 per square kilometre, and is home to approximately 12,950,000 [1]. Rwanda borders: Uganda in the North, Tanzania in the East, the Democratic Republic of Congo in the West, and Burundi in the South. Rwanda’s economy is overwhelmingly rural and heavily dependent on agriculture[2]: agriculture (24.07 percent), the industry contributed (18 percent), and the services sector (49.27 percent)[3]. Rwanda depends on much of its imports on a trade route through the Northern Corridor (Uganda to Kenya’s Indian Ocean port of Mombasa). Uganda lies between Kenya in the west, South Sudan in the north, the west of the DRC (the Democratic Republic of the Congo), and the north of Rwanda and Tanzania. Uganda is home to around 45,741,007 people[4], with a population density of 229 square kilometres. Uganda’s economy depends on agriculture (24.2 percent), industry (25.5 percent), and services (50.3 percent)[5]. The two neighbours have historically depended on each other economically through imports/exports.

The two countries do not have the same colonization history; Germany colonized Rwanda in 1884 and was put under the Belgian protectorate in 1916 (after Germany had lost World War I). The colonial rule-governed in a manner that made the two main social classes (Tutsi and Hutu) enemies. It led to the so-called 1959 Revolution and the independence in 1962, favouring the Hutu and against the Tutsi, the majority of whom were forced to seek asylum in neighbouring countries, Uganda inclusive. Inside the country, ethnic competition culminated in the 1994 genocide committed against the Tutsi, which left Rwanda’s economy and social fabric in ashes[6]. In 1894. Uganda became a protectorate of the British Empire; became independent from the United Kingdom in 1962. After its independence, Idi Amin overthrew Milton Obote in 1971, and Obote was overthrown in 1979. Museveni was a chief of the rebellion that toppled Ugandan leaders Idi Amin (1971–79) and Milton Obote (1980–85) before becoming President in 1986[7].

Despite the difference in colonial heritage, Rwanda and Uganda had had relations since centuries ago when Banyarwanda immigrated in Uganda, as laborers pushed by the poor living conditions in the Belgian colonies and pulled by compounded effects of religion-inflected civil wars in Buganda, the wars of conquest in the East and North, and the collapse of pre-colonial medicine, along with the interruption of agriculture, which claimed lots of active lives. It contributed because the British needed more labour to help grow the cash crops. The Banyarwanda adopted new identities and names to integrate better [8]. Also, the Belgian colonizers engineered ethnic-based conflicts between the Hutu and Tutsi, leading to massive outfluxes to neighbouring countries, including Uganda, after the so-called 1959 Revolution [9].

One factor that goes silent is the effect of new borders imposed after the Berlin Conference (the 15 of November 1884 – the 26 of February 1885). Driven by their desire to regulate colonization and trade in Africa, the European imperial powers drew geometrical borders without considering social affinities on either side. As a result, the people of Rwandan descent found themselves at the other side of the border of all countries neighbouring Rwanda. Therefore, some Banyarwanda found themselves on the other side of the border. It is not surprising that the Constitution of Uganda mentions Banyarwanda as their 24^th indigenous community as of the 1 of February 1926 (see article 10 (a)).

Above, the book hinted that some Rwandans sought asylum in Uganda due to the so-called 1959 Revolution and subsequent years. Faced with the hardships of refugeehood, they negotiated a peaceful return. In response, the then Rwandan government denied most of them a right to citizenship, while she imposed extreme conditions to those whose citizenship was accepted; returnees were not allowed to claim their properties. They would return after proving that they could sustain themselves. These sufferings played in favour of a young Yoweri Museveni; he recruited most of them in the rebellion, including Paul Kagame, and launched a war (1981 – 1986) to seize Uganda’s presidency [10]. After seizing power in 1986, Museveni worked with Rwandan refugees, including Kagame, who worked as his military intelligence chief. In 1994, Museveni supported the liberation war against Kigali, with Kagame as the Commander, to end the 1994 Rwandan genocide. Kagame and Museveni then battled on the same side during the First Congo War in 1996, helping to oust the dictator Mobutu Sese Seko and backing his rival, Laurent Kabila[11]. The two countries are members of the East African Community (EAC) and members of the Commonwealth.

3. Philosophical Considerations

The analysis in this paper draws from political realism. Its “ways of knowing” draws on documents analysis and reflective methods as outlined below:

3.1. Political Realism in International Relations

The realist view, another way of calling political realism, has its first roots arguably in the works of Thucydides (c. 460–c. 400 B.C.E.), where he asked whether states’ relations mind the norms of justice [12]. Machiavelli (1469–1527) also contributed to political realism in his De Principatibus (the prince). In his investigation of power, the balance of power, formation of alliances and counter alliances, and the causes of conflict between different city-states, he submitted that morality is irrelevant in politics and claimed that all means (moral and immoral) are justified to achieve certain political ends[13]. In other words, political realism stresses the competitive and conflictual side of international politics. Realists consider the principal actors in the international arena to be states concerned with their security, pursuing their national interests, and struggle for power[14]. This paper does not aim at discussing the evolution of political realism. It instead seeks to use this lens to examine the bilateral relations between Rwanda and Uganda.

3.2. Ways of Knowing

Studies aim to contribute to existing knowledge – knowledge being a true belief that can be justified by those who claim it [15]. To justify the knowledge shared in this paper, the researcher is a duty bearer who transparently outlines the process, including a theoretical underpinning above, data collection and analysis, and conclusions[16]. As such, this paper draws from documents analysis and historiography. It uses journal articles, relevant websites, international or municipal laws, public policies, strategic plans, official reports, newspaper articles, handbooks, and training materials[17]. The researcher intends to review them to get the background information, get normative evidence, seek corroboration, and breed credibility of findings and conclusions ( Bowen, 2009). This technique is helpful for its unobtrusiveness; availability does not necessarily require prior permissions, primarily when published in public domains [18]. It also uses historiography to recapture the complex nuances, the people, meanings, events, and ideas of the past that have influenced and shaped the present [19]. This method interprets past events or facts to understand current events better and foresee future perspectives.

4. The Conflict: Factors and Actors

Under this section, the paper reviews the old alliance, possible factors for breaking the alliance, and interests pursued by each of these countries.

4.1. NRA and RPA fighting a common enemy

Back in history, Rwandan refugees in Uganda fought alongside the current President Museveni as members of the National Resistance Army (NRA), with Rwandan soldiers estimated at more than a third of the forces. However, their comrades from various ethnic backgrounds did not like the Banyarwanda. Similarly, Museveni, who seemed to appreciate their services, was labelled a Munyarwanda[20]. Simultaneously, Museveni had an uphill task of convincing President Habyarimana of Rwanda that no enemy would launch an attack from the Uganda territory. In his three-day state visit, he was recorded explaining that while he would not mind if he were Rwandan, it was a point of the fact that there was no blood in his lineage[21]. However, it is also a point that the Rwandan Patriotic Army (RPA), a military wing of the Rwanda Patriotic Front (RPF), launched an attack from the soil of Uganda, reportedly against Museveni’s knowledge[22]. In any case, the role of Banyarwanda communities in Ugandan national politics has been remarkable, yet Banyarwanda has been scapegoats for Ugandan ills whenever tensions with Rwanda arose[23].

4.2. RPA and NRA pursuing their security agenda beyond their borders

After the liberation war, Rwanda and Uganda were allies in fighting armed groups in the Democratic Republic of Congo (DRC); Rwanda pursuing its ex-Forces Armées Rwandaises (ex-FAR) and Interahamwe, Uganda hunting its rebels, including the Allied Democratic Forces (ADF), and the Lord’s Resistance Army (LRA). The countries also joined arms to overthrow Mobutu Sese Seko Kuku Ngbendu Wa Za Banga (Mobutu) of the then Zaire. In the Second Congo War, Rwanda and Uganda became enemies. In Kisangani, two forces fought when the Rwandan army refused to obey orders from their fellow Ugandan military officers[24]. Reportedly, many Ugandan officials refer sardonically to their RPA former comrades as “juniors” and “boys” to underscore the fact that Museveni was once their Commander in Chief. It was an extension of Museveni’s attitude towards deciding what the post-genocide Rwanda should have been, a position that Rwandans vehemently rejected[25]. Since then, while the conflict did not escalate into armed violence, the relations experienced in recent years were not at their best, and mediation efforts did not attend to root causes[26].

4.3. Uganda allegedly supports Rwandan enemies

Despite the shared history, the United Nations Group of Experts report suggests that Uganda and other countries trained and armed the Rwandan armed rebellion under the umbrella of the “Platform Five – P5- including AMAHORO-PC, FDU-Inkingi, PDP-Imanzi, PS-Imberakuri and Rwanda National Congress[27]. Faustin Kayumba Nyamwasa is at the head of this platform that seeks to capture power from the hands of RPF[28]. Like his many compatriots, Kayumba was a refugee in Uganda and served in NRA and the Uganda People’s Defence Force (UPDF). He also joined hands with his compatriots in the war that stopped the genocide against the Tutsi in 1994. After their return from exile, he served as the Rwandan Army Chief of Staff (1998 to 2002) and Ambassador of Rwanda to India. The Military High Court (MHC) sentenced him in absentia to 24 years in prison for various accounts, including forming a terrorist group[29], undermining public order[30], promoting ethnic divisions[31], and deserting the army[32]. He was also dismissed with disgrace by the Rwanda Defence Forces.

In July, December 2018, and April 2019, these armed elements carried out incursions into Rwanda’s territory and claimed the lives of civilians. Some rebel commanders were captured and faced trial in Rwanda, while escapes found a quiet haven on Uganda’s territory[33]. Besides, Rwanda repeatedly accused Uganda of abducting, illegally detaining, and torturing some Rwandans on Uganda’s territory, which prompted Rwanda’s travel advisory against going to Uganda[34]. On the other side, Kampala was distrustful about Rwanda’s connections with its security organs; in 2019, Kampala claimed that Rwandan elements entered the territory and killed civilians, a claim refuted by Rwanda, saying that it was pursuing a group of smugglers[35], and reshuffled its security apparatus to ensure that Kigali allies are checked[36].

Amidst these accusations and counteraccusations, the conflict escalated.

The security-related claims triggered economic wars; Rwanda accused Uganda of stopping its trucks from proceeding to Mombasa Port, resulting in heavy financial losses, without a sufficient explanation, which prompted Kigali to seek an alternative export destination[37]. In the same competition, Kampala accused Kigali of blocking cargos from Uganda and stopping its nationals from crossing into Uganda[38], allegations refuted by replicating that there were renovation works at the Gatuna / Katuna border, which resulted in redirecting the trucks to Gatuna / Katuna border, located in 100 km from the Gatuna / Katuna border[39]. These unhealthy relationships have had economic consequences; Uganda has lost more than $300m in exports to Rwanda[40], Rwanda has lost about USD 19m per annum in exports to Uganda[41]. Also, small-scale traders and laborers on both sides were negatively affected. Despite efforts to mediate these differences, the relationships have not improved; efforts did not address the root causes of the conflict, which called for constructive conflict management to harness its energy for creativity and development.

4.4. The Uganda – Rwandan refugee diplomacy

On the 31 of December 2017, Rwanda and UNHCR activated the Cessation Clause for Rwandan refugees who fled the country between 1959- 1998. Under Article 1C (5) and (6) of the 1951 Convention relating to the Status of Refugees, ceased circumstances are:

(5) He [she] can no longer because the circumstances in connexion with which she/he has been recognized as a refugee have ceased to exist, continue to refuse to avail [herself] himself of the protection of the country of [her] his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail [her] himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connexion with which [she] he has been recognized as a refugee have ceased to exist, able to return to the country of [her] his former habitual residence; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of [her] his former habitual residence.

These two provisions may look alike, but they do not. Under Article 1C (5), cessation of reasons that had caused a person to free apply to those persons who had a known nationality, while under 1C (6), the cessation applies to the stateless persons. The phrase “circumstances in connection with which he has been recognized as a refugee” denotes the objective situation in the refugee’s country of origin. The application of the cessation clause presupposes fundamental, substantial, and substantial changes in the country of origin, which can be assumed to remove the basis of the fear of persecution, which may happen suddenly or gradually[42]. In a few words, the cessation clause recognizes that the circumstances that motivated the refugee status determination or those that may have happened after the RSD decision are of such a nature that refugees do no longer have a founded fear of persecution; they can voluntarily repatriate in dignity and safety.

After stopping the genocide against the Tutsi in 1994, repatriation of refugees was one of the new government’s priorities. In July 2003, Uganda, Rwanda, and UNHCR signed a tripartite agreement (UNHCR, 2003a) that put a legal and operational framework for the voluntary repatriation of Rwandan refugees in Uganda[43]. In the same vein, the cessation clause activated on the 31 of December 2017 encouraged voluntary repatriation for Rwandan refugees, including those in Uganda. However, a report suggests that the cessation clause was meant to meet the actors’ interests, including the international community, regional geopolitics, Uganda, and Rwanda[44]. Nevertheless, there were concerns about the refusal of Uganda to enforce the clause, arguing that it would not deport the Rwandan refugees living in the country as some of them were asylum seekers[45]. As of the 31 of December 2021, Uganda hosted 25,772 Rwandan refugees[46]. In addition, reports were suggesting active recruitments from refugee settlements – such as Kiboga, Kibale, Nyakivara in Uganda, under the host state’s security apparatus’s supervision to destabilize Rwanda[47]. The same drive continued after Museveni’s swearing-in for another six years term[48], including issuing an official diplomatic passport to Mukankusi, a Rwandan member of the RNC, which is a stumbling block to the voluntary return. It was also reported that Museveni removed General Kale Kayihura from the headship of the police due to his alleged illegal deportation of Rwandan refugees to Rwanda (refoulement)[49], including Kagame’s former bodyguard, Lieutenant Joel Mutabazi who disappeared from a UN refugee camp in 2013 and is now serving a life prison sentence in Rwanda[50]. From this evidence, a refugee issue has been a stumbling block in bilateral relations. In other words, when countries – especially neighbours – have disagreements over their interests, they tend to use refugees as a security threat. Below, the paper carries on a discussion on interests at stake for both countries.

4.5. Interests at Stake 

The ongoing diatribe puts Rwanda’s economic and security interests at stake. First, it jeopardizes Rwanda’s economy: Rwanda’s size and location have a bearing on the economy. A small country with a territory of 26,338 square kilometres, with one of the highest population densities in Africa, 525 per square kilometre[51],  is home to more than 12,000,000[52]. Rwanda’s neighbours are Uganda in the North, Tanzania in the East, DRC in the West, and Burundi in the South. Rwanda’s economy hinges upon agriculture (24.07 percent), industry (18 percent), and services sector 49.27 percent[53]. Rwanda’s balance of trade has been chronically negative; while improving over the years, the trade deficit was 1.54 billion USD in 2019, it was 1.32 billion USD in 2018, 1.2 billion USD in 2017, and 1.52 billion USD in 2016[54]. Most imports and exports go through the Northern Corridor – Uganda to Kenya’s Indian Ocean port of Mombasa[55], located in 1,800km. This Corridor also serves Burundi, DRC, and South Sudan. Alternatively, Rwanda uses the Central Corridor via Tanzania (1,400 km long from Rwanda and about 1,500 km from Burundi). Its leading trade partners are DRC:32.1 percent, the UAE:29.6 percent, Uganda: 5.3 percent, and Switzerland: 4.6 percent; with imports coming primarily from China (19.9 percent) followed by India (8.8 percent), Kenya (8.7 percent), and Tanzania: 8.4 percent [56]. The current deadlock hinders the trade from in and from Rwanda through the Northern Corridor. For a landlocked country like Rwanda, this is an existential matter with the potential to put it on its knees, if there are no alternatives. Rwanda has expressed her concerns over sabotaging trade by frustrating goods transiting through Uganda and destined for Rwanda, which eventually occasioned losses. For some time, Uganda denied RwandAir to use the Entebbe route to London, which is another threat to Rwanda’s economic performance.

Secondly, the conflict has Rwanda’s security at stake in three ways. Uganda has illegally detained and tortured Rwandans on Uganda’s territory. Kigali provided a list of Rwandans detained in Uganda and Kampala committed to verifying the information to ensure due process[57]. Besides, Uganda has allegedly supported anti-Rwanda groups aimed at destabilizing the government in Kigali[58], such as including the Rwanda National Congress[59] and FDLR allied and other movements under the P5 (Amahoro People’s Congress (Amahoro-PC), the People’s Defence Pact-Imanzi (PDP-Imanzi), the Forces Démocratiques Unifiées-Inkingi (FDU Inkingi), and the Social Party-Imberakuri (PS Imberakuri)[60]. P5 elements carried out incursions in 2018 (July and December), April 2019 into Rwanda’s territory and claimed the lives of civilians. Some rebel commanders were captured and faced trial in Rwanda[61]. Finally, it seems Kigali is not amused with the belittling attitude of Uganda’s leadership towards Rwanda[62]. From reports, this unhealthy relationship has a history. One of the historical events occurred in the Kisangani tug of war: two forces fought when the Rwandan army refused to obey orders from their fellow Ugandan military officers[63]. Reportedly, many Ugandan officials refer sarcastically to their RPA former comrades as “juniors” and “boys” to underscore that Museveni was once their Commander in Chief. It was an extension of Museveni’s attitude towards the post-genocide Rwanda should have been, which was rejected by Rwandans[64]. Since then, while the conflict did not escalate into further violence, the current relations show that efforts did not attend to root causes[65]; these belittling and patronizing attitudes are likely to escalate conflicts since they tend to be ideology-driven[66]. Given security and economic interests at stake, Rwanda is facing an existential threat that warrants action in defense of the interests and safety of Rwandans.

Uganda, too, has economic and security interests. Uganda is between Kenya in the west, South Sudan in the north, the west of the DRC, and the north of Rwanda and Tanzania. Home to around 45,741,007 people[67], its population density is 229 square kilometres. Its economy depends on services: 50.3 percent, industry: 25.5 percent, and agriculture: 24.2 percent[68]. The two neighbours have historically depended on each other economically through imports and exports. Rwanda is the third export partner for Uganda, with 6.9 percent of all exports in 2018 after Kenya: 18.8 percent and UAE:18.2 percent[69]. While Uganda is landlocked, it enjoys a geographical location that can influence the flow of commodities in and from Rwanda. Reports suggest that Uganda has lost more than USD 300m in exports to Rwanda (The Chronicles, 2020), Rwanda has lost about 19m USD per annum in exports to Uganda[70]. Besides, small-scale traders and laborers on both sides were negatively affected and pushed to explore multiple coping mechanisms. These deplorable developments have also impeded the EAC’s dream to expand economic, political, social, and cultural integration to advance the standard of living for the people of East Africa through increased competitiveness, value-added production, trade, and investments[71]. Despite efforts to conciliate these differences, the relationships have not improved; efforts did not address the root causes of the conflict. There is a need for constructive conflict management to harness its energy for creativity and development. Uganda has security interests to chase; like Rwanda, she has security interests and imminent threats from rebel movements in DRC, including ADF, and the Lord’s Resistance Army (LRA), which operates in northern Uganda, South Sudan, the Central African Republic (CAR) and the DRC. The state does therefore have an interest in ensuring its security is tight. However, one may germanely ask whether Rwanda is threatening Uganda’s legitimate interests.

5. Conflict Resolution Efforts

Under auspices of International Conference on the Great Lakes Region (ICGLR), Presidents João Manuel Gonçalves Lourenço (Lourenço) and Félix Antoine Tshisekedi Tshilombo (Tshisekedi) of DRC offered to facilitate the negotiation process. Two rounds happened under their leadership: Round one took place in Luanda, and two heads of states signed a Memorandum of Understanding; Round Two happened in Kigali as a meeting for the joint Adhoc committee; Round Three happened in Uganda as a meeting for the Joint Adhoc committee, and Round Four happened in Gatuna as a Summit.

On the 21 of August 2019, Kagame and Museveni met in Luanda and signed a Memorandum of Understanding (MoU) to restore relationships. In addition to Lourenço and Tshisekedi, Denis Sassou Nguesso (Congo – Brazza), under the auspices of the International Conference on the Great Lakes Region witnessed the ceremony[72]. The UN Secretary-General saluted the efforts in a press release, urging neighbours to restore friendly ties and cooperation for regional stability[73]. Kagame and Museveni committed to respecting each other’s sovereignty and that of the neighbouring countries. They also undertook to desist from financing and training, each other’s hostile forces. They finally agreed to uphold the rights and freedoms of their citizens residing or transiting, continue cross-border arrangements, including the movement of persons and goods, as soon as possible to avoid unnecessary hardships for their citizens.

On the 17 of September 2019, building on the MoU signed in Angola one month earlier, the Adhoc commission met in Kigali, Rwanda, to defuse tensions. The Rwandan Minister of State of Foreign Affairs, Honourable Olivier Nduhungirehe, underscored the long history between the two countries as a factor that would make the process smooth towards restored relations. Kigali voiced her concerns about cases involving Rwandans who have been illegally detained or tortured on Ugandan soil. Kigali also voiced its concern for Uganda as it hosts and supports terror groups aimed at destabilizing the government in Kigali[74]. Kigali provided a list of Rwandans detained in Uganda and Kampala committed to verifying the information to ensure due process[75]. Regarding the allegations of supporting the anti- Rwanda forces, Minister Sam Kahamba Kutesa commented that Uganda did not stand to benefit anything in destabilizing Rwanda, just like Rwanda benefited nothing in destabilizing Uganda. In attendance, Manuel Domingos Augusto, the Angolan Minister of External Relations, voiced his optimism, saying the negotiation process testified how African countries could work together to resolve their issues[76].

On the 13 of December 2019, the Adhoc committee met after three postponements. The delegations included Foreign Ministers, Internal Affairs Ministers, Intelligence Chiefs, and High Commissioners. However, commentators suggested that Rwanda and Uganda failed to outline all issues at stake, such as Uganda’s sabotage of the railway project that would eventually have reached Rwanda’s border, which would have made a difference in the economy of Rwanda. However, the talks reached another deadlock[77].

On the 21 of February 2020, Kagame and Museveni, with mediation from Lourenço and Tshisekedi, held their summit at the Gatuna border. The only summit’s output was a bilateral signature for the Extradition Treaty by Ministers of Foreign Affairs. Any suspected criminal in either country would not be deported but extradited from that on. After the summit, the ball was put solely back on the Ugandan side. Uganda had to first deal with the dissidents and rebel forces on its territory fighting Rwanda and ensuring respect for international human rights and international humanitarian laws. Facilitators asked Uganda to finish the homework within a one-month deadline, report to the Adhoc commission, after which the state leaders would meet [78]. Below, the paper outlines the failure of mediation, shy stakeholders, and mediators who missed the opportunity.

5.1. The Solution: Could Mediation Contribute?

The previous sections have outlined the history of Rwanda – Uganda relationships, conflict dynamics, mediation efforts, and an evaluation of these efforts. The question remains: Were these differences irremediable? Below, the study analyses: (i) issues and players, (ii) negotiation tactics in practice (based on four rounds so far conducted).

1. a) Issues and Players

Rwanda and Uganda are neighbouring states, both members of the East African Community (EAC) – This organization brings together Burundi, Kenya, Rwanda, Uganda, the United Republic of Tanzania, South Sudan, and recently, DRC. It seeks to expand economic, political, social, and cultural integration to advance the standard of living for the people through increased competitiveness, value-added production, trade, and investments. Despite a shared heritage, the recent developments suggest a fratricide conflict.

Table 1. List of Allegations

c)Negotiation in Practice

Under auspices of ICGLR, Presidents Lourenço of Angola and Tshisekedi of DRC offered to facilitate the negotiation four rounds: Round one took place in Luanda, and two heads of states signed a Memorandum of Understanding; Round Two happened in Kigali as a meeting for the joint Adhoc committee; Round Three happened in Uganda as a meeting for the Joint Adhoc committee, and Round Four happened in Gatuna as a Summit. Below, the study analyses four negotiations rounds. It utilizes the videos available in the public domain on these negotiation rounds.

Round I: Luanda Mini-Summit

On the 21 of August 2019, Kagame and Museveni met in Luanda over this challenge under the auspices of the ICGLR. Presidents João Manuel Gonçalves Lourenço (Angola), Félix Antoine Tshisekedi Tshilombo (DRC), and Denis Sassou Nguesso (Congo – Brazza[79]. Rwanda and Uganda presented a list of complaints against each other, and each party responded. They included the interference in each other’s sovereignty; destabilization activities in each other’s territory; protection of each other’s citizens’ rights and freedoms in transit or living on the territory; border closure; promote comprehensive cooperation in security, defence, trade, and cultural exchange, investment, based on complementary and synergies. At the end of the summit, two heads of state signed an MoU to solve these hiccups. Uganda and Rwanda committed to activating an Ad Hoc Commission for the MoU operation, ensuring solutions to these issues, and keeping facilitators informed of developments[80]. The UN Secretary-General saluted the efforts in a press release, urging neighbours to restore friendly ties and cooperation for regional stability[81]. In analysis, this round was successful in many respects; Parties did not stick to their positions; they highlighted their interests, clearly articulated issues, and duly agreed on solutions. They also packaged their agreement in a Memorandum of Understanding and bilaterally signed it. It was evidence of commitment. There was an understanding that there were many technical issues that were involved. The practice is exemplary as it delineates solutions and delegates technical work to the Adhoc committee and details the committee’s membership: Ministers for Foreign Affairs as co-chairs, Ministers responsible for internal administration, and head of Intelligence as members.

Round II: Kigali Meeting

On the 16 of September 2019, building on the MoU signed in Angola one month previously, the Adhoc commission met in Kigali, Rwanda, to defuse tensions. The meeting reportedly proceeded in a cordial and frank manner. The Rwandan Minister of State of Foreign Affairs underscored the long history between the two countries as a factor that would make the process smooth towards restored relations. Kigali voiced her concerns about cases involving Rwandans who have been illegally detained or tortured on Ugandan soil. The Minister also voiced Uganda’s hosting and supporting terror groups aimed at destabilizing the government in Kigali[82]. Hearing both Ministers’ ponderous speeches, one senses a shared commitment to negotiate[83]. Regarding the allegations of Uganda supporting the anti- Rwanda forces, Minister Kutesa (Uganda’s MFA) commented that his country benefits nothing in destabilizing Rwanda, just like Rwanda benefits nothing in destabilizing Uganda[84]. It was promising to hear parties define the problem[85]. The following table summarises the allegations, evidence, and explanation from the “defending” party:

Table 2. List of Allegations, Evidence, and Response

The two delegations agreed on some issues by the end of the day: First, Rwanda provided a list of Rwandans detained in Uganda, while Uganda committed to verifying each name through due process and releasing those with no evidence of criminal conduct. Second, parties’ delegations agreed they would follow due process in dealing with each other’s citizens suspected of any criminal offense. Third, parties reiterated a commitment to refraining from any act of destabilization against each other. Fourth, parties agreed to finalize the extradition treaty to provide a legal framework for the future exchange of criminal fugitives. Fifth, parties agreed to cease all forms of hostilities in mainstream and social media. Sixth, parties agreed that the movement of goods and services across the shared border and other outstanding issues should be in the next meeting. Finally, the parties agreed that the subsequent meeting would be held in Kampala after 30 days to review the implementation of the Luanda MoU[88]. Manuel Domingos Augusto, the Angolan MFA in attendance, voiced his optimism, saying it testifies how African countries can work together to resolve their issues[89]. In analysis, this round recorded some success; parties were able to delineate issues of common interest, focussed on leading issues, allowed sub-issues to emerge and articulate solution[90], and were pragmatic to mention that there were issues not covered in the meeting, and the following meeting would discuss them[91]. It was also commendable to suggest alternating meeting venues between Kampala and Uganda, a concession and division of labor between negotiating states.

 Round II: Kampala Meeting

On the 13 of December 2019, the Adhoc committee met after three postponements.

Table 3. Summary of issues and outcomes from Kampala Meeting

Uganda and Rwanda MFAs, briefing the media after the meeting, were glad that the talks were cordial. On a positive note, parties noted progress regarding the drafting of the extradition treaty. On the other hand, there is a standoff. Rwanda reiterated its threefold interests: anti-Rwanda armed groups operating in Uganda, illegal arrest and arbitrary detention of Rwandans, and hostile propaganda. Rwanda complained that Uganda had arrested more than 1000 Rwandans since January 2019. Minister Olivier highlighted a need for good faith and goodwill from Uganda to implement the Luanda MoU and the Kigali Communiqué. On Uganda’s side, Minister Kutesa highlighted two issues: attempts for infiltration of security of organs by Rwanda and border closure. He also highlighted that Uganda had no interest in destabilizing neighbouring countries’ security[92]. Minister Kuteesa suggested a joint verification mechanism, to which Rwanda replied that no number of commissions would supplant the need for goodwill and good faith. After failing to achieve a substantive agreement on raised issues, both parties agreed they would brief their principals and seek guidance on the way forward. In analysis, these talks were prone to a standoff. Parties agree to engage in cordial conversations, but the outcome does not show cordiality and good faith. More than 1,000 Rwandans were arbitrarily arrested and illegally detained in Uganda. Minister Kuteesa alleges that these were suspects of attempted infiltration of Uganda’s security apparatus. Does this arbitrary warrant detention and illegal detention? Why are they dumped at the border will irrefutable signs of torture?

Moreover, there is room to suggest that parties were shy about catching the bull by its hones: Why would Rwanda seek to infiltrate Uganda’s security organs? Why does Uganda support anti-Rwanda terrorists? This issue has a history; Rwanda and Uganda fought a fratricide war in Kisangani, and subsequent investigations revealed that Uganda was to blame. Uganda has been sabotaging some trade-related efforts, including the railway project[93]. It would have reached Rwanda’s border, making a difference in Rwanda’s economy[94]. After the project was redirected to South Sudan, Uganda clarified that economics guided them in this decision. While economics may have contributed, states do not always calculate their interests through economic formulae. In any case, the second Ad hoc meeting reached another stalemate [95], warranting the intervention of principals.

Round IV: Gatuna Summit

On the 21 of February 2020, Presidents Paul Kagame and Yoweri Museveni, with lubrication from Lourenço and Tshisekedi, held a summit at Gatuna / Katuna border. As usual, facilitators ingratiate parties and urge them to negotiate in good faith. On the Uganda side, the people in the NRM yellow colours stood by the road, waving to the delegation near the Katuna border. Museveni took time to speak to them and hinted at why he was in the area. There is no doubt the people of Rwanda and Uganda alike were respectively awaiting changes in cross-border movements and concrete outcomes. After talks in-camera, officials briefed the media thereafter. Below, the table summarises the Summit’s outcomes:

Table 4. Summary of issues and evaluation from Gatuna Summit

At the end of the Summit, MFAs bilaterally signed an Extradition Treaty. It is a positive development; the countries would henceforth extradite any suspected criminal. However, the four negotiations did not assuage Rwanda’s concerns over three issues: Uganda’s support to rebel organizations, safety and security of its progeny, and hostile campaigns against Rwanda in the mainstream and social media. Facilitators’ recommendations tasked Uganda to suppress hostile activities against Rwanda and observe the international human rights and international humanitarian laws. Facilitators asked Uganda to finish the homework within a one-month deadline report to the Adhoc commission, after which the state leaders would meet [97]. President Kagame commented that there could be as many lectures about integration as possible, but the integration of regions and communities would result from action and good faith. Since the Gatuna/Katuna Summit, fourteen months have elapsed, yet nothing happened until Muhoozi visited Kagame. Let us elaborate a bit on the treaty.

5.2. The Treaty: Is it a treaty by the meaning of article 2 of the 1969 Vienna Convention on the Law of Treaties (VCLT)?

Rwanda and Uganda concluded a bilateral agreement, each represented by the MFAs (article 102 of UN Charter). Minister Kutesa and Biruta had full powers to discharge their task[98]. Therefore, the two parties signed a bilateral agreement[99]. One question remains: is the agreement signed in Gatuna is a treaty in the meaning of art 2 of the VCLT? A priori, the agreement is not a treaty. Here are the arguments: First, by article 2 of the VCLT, by signing a treaty, parties intend to submit to international law; that is why they register the agreement with the UNSG to avoid secret alliances. In this context, there is doubt about whether the agreement signed was indeed a treaty; to the best of available knowledge, Rwanda and Uganda did not register the document with the United Nations Treaty Series[100] probably because the obligations and rights of each party would cease as soon as the other party performs its side. Second, a treaty creates a pacta sunt servanda expectation. In other words, such a treaty would be binding between the two States, and they would perform it in good faith (VCLT, Article 26). In other words, once Rwanda and Uganda’s MFAs signed the agreement, they were expected to perform in good faith their obligations. However, the paper argues that there is no good faith between the parties. Their parties possibly signed the treaty to dodge horny issues.

Assuming good faith, they would have considered other critical issues of the negotiations outlined since the Luanda Mini-Summit. Third, any such agreement would abide by the principle of reciprocity. This principle requires that states return favors, benefits, penalties, and other forms of treatment that the state grants to legal subjects of a foreign state in kind [101]. Currently, Ugandans doing business in Rwanda or transiting through Rwanda enjoy their rights as nationals of the East African Community. There is a need for Uganda to do the same for Rwandan nationals transiting through Uganda or doing business in Uganda. Fourth, if the agreement were a treaty duly registered with the United Nations Secretary General (UNSG), Rwanda would have invoked it before the UN organs. Unfortunately, about three years had elapsed since the facilitators asked Uganda to clean its obligations; not enough resulted from the agreement without any repercussions. Finally, considering the four arguments, the agreement Rwanda signed in Gatuna on the 21 of February 2020, does not qualify to be called a treaty by the definition of article 2 of the VCLT because it does not have a legal force. The prevention of further conflicts does not depend on the agreement’s provisions. It did not implement the extradition with any mechanism to hold it accountable. Finally, and considering the four arguments, the agreement Rwanda signed in Gatuna on the 21 of February, 2020, does not qualify to be called a treaty by the definition of article 2 of the VCLT because it does not have a legal force. The “treaty” failed to prevent further conflicts between Rwanda and Uganda; it only covers extradition, and it failed to carry this out. Other issues outlined in the Luanda agreement were left to the whims of Uganda to implement, and nothing followed Uganda’s inaction since February 2020.

It is also paramount to ask whether some changes did or did not happen. When Kagame and Museveni met in Gatuna, there was more on the table than witnessing the signature of the extradition treaty. In the previous meeting, parties had noted the progress in drafting the extradition letter. There was also a host of other issues that Uganda had to report on: anti-Rwanda propaganda, supporting anti-Rwanda forces, and illegal arrest and arbitrary detention of Rwandans. The treaty, therefore, addresses only the last element in the list. The media captured the pictures of MFAs, Kutesa, and Biruta, signing the treaty with the presence of their principals. The treaty, however, is not available in public domains. The Rwanda MFA website reports that the treaty requires both countries to extradite criminals from each other to face justice instead of deporting them. In practice, two States would communicate regarding criminals arrested on each other’s territory and arrange for an exchange, which is good progress. Since the treaty’s signature, not much has taken place. The media reported sporadic events, including (1) Uganda released 12 Rwandans after a teleconference meeting between MFAs in May 2020 whereby Minister Kutesa said that Uganda would release 130 Rwandans while another 310 would remain in Uganda to face charges in courts of law. Meanwhile, Rwanda lamented that hundreds of more Rwandans are still detained in Uganda without due process of law while being tortured by security organs[102]. (2) Rwanda released 20 Ugandans who were in its prisons after Rwandan courts convicted them of common law crimes. Three of them had finished their sentence. (3) Four men, one woman, and a one-year-old child were deported and dumped at the Ugandan border after undergoing torture in the Chieftaincy of Military Intelligence (CMI) prison. They report they have been eating once a day. They had nails extracted[103]. (4) Uganda released 79 Rwandans in Uganda’s detention facilities on allegations of infiltration and espionage. These are part of the 130 Rwandans that Uganda committed to releasing. Some of these reports lose their property in an illegal process, such as houses and other personal belongings[104]. (5) Ugandan military subjected Rwandans to beatings on allegations of spreading COVID-19. Their property was snatched away from them. They call upon the government to help Rwandans in Ugandan detention centers[105]. (6) Uganda officials dropped a university student who was among 17 Rwandans at the Nyagatare border after being abducted by the CMI when visiting her parents in Uganda. She was jailed in a loo for one and a half weeks and tortured on allegations of espionage [106], and some other sporadic events, small enough to warrant the effectiveness of the “treaty.”

From these releases and deportations, the paper argues that there are still challenges of implementing the bilateral treaty on extradition and other issues highlighted. The conflict has been stubborn partly because Rwanda and Uganda have a shared history; Rwandans were fighting alongside Museveni, and both countries were fighting in DR Congo, where analysts trace back the root causes of the conflict. Furthermore, both states did not change Presidents since then. The realist view best explains the Rwanda-Uganda relationship. All sovereign States need and seek power; it is what matters. Rwanda and Uganda are struggling for each one to influence regional matters in the region and protect its sovereignty and interests[107]. In other words, the realist view emphasizes the role of the nation-state and assumes that all nation-states are motivated by national interests and therefore need the power to influence other actors.

6. Which Stakeholders shied Away?

Each of these countries had interests and stakes in the conflict. Both seemed to have security and economic interests. Nevertheless, it did not mean that pursuing interests were mutually exclusive. Besides these actors, other stakeholder organizations could have been interested in the situation.

First, the ICGLR: The organization comprises twelve member states: Rwanda, Burundi, Angola, Burundi, Central African Republic, Republic of Congo, Uganda, Democratic Republic of Congo, Kenya, Republic of South Sudan, Sudan, Tanzania, and Zambia. The ICGLR coordinates, monitors, and ensures the implementation of the pact to reach political stability, security, peace, and development in the Great Lakes region[108]. The creation of the International Conference on the Great Lakes Region (ICGLR) goes back to the year 2000 when the United Nations Security Council (UNSC) passed resolutions 1291 and 1304, calling for an international conference on security peace, democracy, and development in the Great Lakes region [109]. The recognition of ICGLR as a mechanism for combating impunity and promoting justice and human rights requires a critical reflection and understanding of the mechanism’s past, present, and future. In the quest to transform the region into a cosmos of peace, security, and sustainable human development, in 2000, the UN Security Council called for an International Conference on peace, security, democracy, and development in the Great Lakes Region (see resolutions 1291 and 1304). In November 2004, the eleven Heads of State and Government of the member states unanimously adopted the Dar-es-Salaam Declaration on Peace, Security, and Development in the Great Lakes region in Dar es Salaam, Tanzania. They convened once again in Nairobi in 2006 to sign the Pact on Security, Stability, and Development in the Great Lakes Region. Later the Secretariat of the ICGLR was established in Bujumbura, Burundi.

Among the relevant protocols, one can cite the Protocol of non-aggression and mutual defense in the region, on democracy and good governance, Protocol on judicial cooperation, and the Protocol for the Prevention preventing and punishment of punishing the crime of genocide, war crimes, and Crimes against Humanity and all forms of discrimination, as well as the Protocol on the Prevention and Punishment of Sexual Violence Against Women and Children (SGBV). For example, the implementation of the Protocol on Non-aggression and Mutual Defence results from the commitment of Member states to eradicate the hostile forces in the region minimize interstate conflict by forging a common destiny around security issues. The main achievements here have been the neutralization of FDLR and M23, the main actors in eastern DRC and the neighbouring countries. In the same vein, the Protocol on Judicial Cooperation is worth comment. A meeting of the Ministers of Justice of the ICGLR Member States convened in Livingstone, Zambia, in August 2015 and made firm commitments to accelerate the domestication of the Protocols, including the one on Judicial Cooperation. On the one hand, the meeting pledged to ensure the domestication of four priority Protocols in 2015 and 2016, namely the Protocol for Non-Aggression and Mutual Defence, the Protocol on Judicial Cooperation, and the Protocol on the Prevention and Eradication of Sexual Violence against Women and Children.

On the other hand, they committed to complete the domestication of the other six remaining Protocols by 2018. The Network for Judicial Cooperation of the Central Judicial Authorities and Prosecutors of the Great Lakes Region of Africa, usually referred to as “the Great Lakes Judicial Cooperation Network” or “GLJC Network,” was set up during a meeting organized by ICGLR and the Office of the Special Envoy of the Secretary-General of the UN in the Great Lakes Region on 10th and 11th August 2016 in Nairobi, Kenya. It seeks to strengthen central judicial authorities, prosecutors, and other actors in the region to combat all forms of cross-border crime and impunity. It is supposed to facilitate investigations within member countries, the extradition of suspects and arrested persons, and letters rogatory when investigations are held in a country (see Article 2 of the Statute). However, the ICGLR failed to make negotiators committed to the agreed-upon duties and responsibilities. From experience, the first and second Congo Wars had originated from unsolved issues in individual states. In addition, the efforts of Lourenço and Tshisekedi were futile. It might suggest that the organization has challenges ensuring that member states abode by their dream for sustainable peace, security, and development in the region.

Secondly, the East African Community should be concerned about and act on the ongoing conflict. Article 52 of the UN Charter recommends regional arrangements for international peace and security in line with the UN’s purposes and principles[110]. As such, the UN members entering regional arrangements shall settle their disputes in a pacific manner through such arrangements before referring them to the Security Council. The East African Community (EAC) could have played a role in the context at hand. On the 30 of November 1999, member states signed the Treaty for the Establishment of the East African Community, and it entered into force on the 7 of July 2000, amended on the 14 of December 2006, and on the 20 of August 2007[111]. Article 5, para 1 of the EAC treaty articulates that the community seeks to expand economic, political, social, and cultural integration to advance the standard of living for the people through increased competitiveness, value-added production, trade, and investments. It also commits to ensuring peace, security, stability within, and good neighbourliness among the Partner States (Article 5, para 1 (f)). The community’s governing principles include peaceful co-existence and good neighbourliness and peaceful settlement of disputes (Article 6, para 1 (b)). From these provisions, Uganda and Rwanda have a platform that they could have used to settle the ongoing conflict. Besides, the Treaty provides for the East African Court of Justice (Article 6, para 1 (c)). The Legal and Institutional framework governing the East African Court of Justice operations is primarily drawn from the Treaty for the Establishment of the East African Community. It is the Treaty that establishes the court as one of its organs (Article 9); provides for its structures/ composition (article 24); mandate (article 23 and 27). And other incidental issues thereto. Under Article 23(2) and (3) of the Treaty, the EACJ shall consist of the first instance division and an Appellate division. The first instance division is competent to hear and determine, at first instance, any matter before the court under the Treaty, subject to appeal. The EAC Treaty imposes some obligations upon the member states ranging from trade liberalization, financial cooperation, cooperation in transport and communication, energy, industrial development, science, and technology through health and environmental matters (Chapter 2), which are bound to bring to the fore much litigation before the court. Like other courts, the EACJ requires parties to meet the locus standi, the capacity to bring actions or appear in court. The Treaty provides that cases can only be instituted at the EACJ in the following manner: 16 Article 28 17 Article 29 18 Article 30 19 Article 34 20 Article 37 21 Article 37 and Rule 17 (1) 22 Rule 17 (2) 23 Rule 17 (3) 24 Rule 17 (4)[112]. A Partner State may seize the court if it considers that another Partner State/organ/institution of the Community has not fulfilled an obligation or has infringed a provision of the Treaty. A State may also seek the court to determine the legality of an Act/ regulation/ directive decision/ action on the ground that it is ultra vires or unlawful or infringes the provisions of the Treaty. It is moreover worth a reflection to discuss the exhaustion of remedies. Under International law, the doctrine of exhaustion of local remedies states that “a State must have the opportunity to redress a supposed wrong within the framework of its domestic legal system before the international responsibility can be called into question at [the] international level. Unlike the African Court of Human and People’s Rights, there is no requirement that applications exhaust domestic remedies as a condition before bringing an application to the court (Article 28), in line with the principle of a “people-centered and market-driven cooperation” as enshrined in Article 7(1) of the EAC – Treaty [113]. In line with a mission to widen and deepen economic, political, social, and cultural integration to advance the standard of living for the people of East Africa through increased competitiveness, value-added production, trade, and investments[114], the organization was in the best position to act if the countries were not able to act. Peace and security are prerequisites to the common market, common currency, and political integration. EAC does not seem to have a muscle to mediate the conflict. First, there are issues between some member states; for example, Rwanda accuses Burundi of harbouring the militia that attacked the southern province and vanished into Burundi, leaving behind enough evidence to track their base (including uniforms, weapons, and prisoners). Moreover, the experience of Burundi in 2015 does not inspire my confidence in the body. After the election-related violence claimed the lives of some citizens and drove thousands out to exile, these bodies could have done better.

Third, the Civil Society in the East African Community: This includes patterns of civic engagement and representation: political parties, professional organizations, labour unions, and religious institutions). These represent the populace, or they ought to represent them in governance, legal, economic, and social structures; maintain communal structures, and avail humanitarian aid[115]. They are interested in ensuring security, bilateral and multilateral relationships as a prerequisite to human development. Fourth, the African Union should be interested: The organization chases an integrated, prosperous, and peaceful Africa, driven by its citizens and on behalf of a dynamic force in the global arena. It is interested in peace and security between neighboring countries and in different continent regions.

Fourth, the African Union has the potential to attend to African problems.  Besides political mediation, the African Charter on Human and People’s Rights (hereinafter called the African Charter) can help. It assumed its place in history in 1981. Before adopting its constitutive act of the African Union[116], human rights were not recognized officially as a preoccupation objective of the African Union (AU)[117]. The African Charter on Human and People’s Rights (African Charter) has reflected efforts by the African continent to grabble with concerns over human rights. The African Charter envisages scrutiny by treaty organs over state conduct that violates human rights. The primary organs for monitoring and protecting human rights under this Charter were the African Commission on Human and People’s Rights (Commission), a quasi-judicial body that monitors the Charter and African Court of Human Rights implementation in 2004. With its Protocol establishing the African court on human and people’s rights (African Court), the African Charter is a meaningful contribution to the human rights domain, and no doubt that there is a demand for respect for the promotion and protection of human rights the continent. However, with the realization of the fact that there is a need for a robust apparatus for protecting and promoting human rights, unlike African Commission for human and people’s rights (African Commission), whose recommendations were never binding, the African heads of state signed the Protocol to establish the African Court[118].

During their functions, the Commission and the Court scrutinize incidents and situations within the domestic legal order of state members to the Charter. The commission has even admitted and affirmed the principle that human rights are not the preserve of the domestic jurisdiction of States[119]. However, the African Charter recognizes that the commission may not receive communications related to claims that have not been brought first before organs of the defending state. It is found in article 56 (5) of the African Charter. In today’s human rights domain, individual complaints procedures are the most successful ways of human rights[120]. Like other international and regional human rights mechanisms, the African continental human rights bodies generally require complainants to exhaust domestic remedies before submitting a claim[121]. It means that a person must attempt to use the available national legal protections to seek accountability or reparation for the violation, appealing as necessary until the claim can be pursued no further at the national level. If a person does not receive an adequate remedy from a national body, then he or she may submit a complaint against the state for consideration by a supranational human rights body. The rationale of the local remedies rule embodied in article 56 (5) of the African Charter is to permit a State to deal with a claim brought against it using the judicial and administrative venue within its domestic legal order before it is summoned by an international body to answer for the claim[122]. In the World Organization against Torture and Others v Zaire case, the African Commission stated the raison d’être of the rule: “the requirement of exhaustion of local remedies is based on the principle that a government should be made aware of human rights violation to have the opportunity to address such violations before being called before an international body[123].” Although complaints submitted to the African Commission on Human and Peoples’ Rights or the African Court on Human Peoples’ Rights must meet all of the admissibility requirements set out in Article 56 of the African Charter, the African Commission has stated that exhaustion of domestic remedies is one of the most critical conditions for admissibility[124]. More significantly, the commission has had to reflect upon the wording “if any” in article 56 (5) of the Charter, that remedies must be in existence or available within the domestic legal order.

Furthermore, the commission emphasized that the remedies must be available and practical[125]. From what is stated above, the rule of exhaustion of local remedies is not considered if those remedies are not available or insufficient. Nevertheless, are these the only exceptions to the rule? Some authors argue that there must be a particular link between the injured person and the defending state in all international legal systems where the exhaustion of local remedies is required. That link may be the voluntary physical presence or residence of the person in the country concerned, property of a particular object located in that country, or contractual relationship with that particular state[126]. Logically, the rule of exhaustion of local remedies should not apply to such situations. It will not be justice to oblige a victim in Rwanda to go and exercise local remedies in Uganda, for example, while he has no other link with that country unless the victim has voluntarily submitted himself under the jurisdiction of Ugandan courts. In this case, the paper argues that there are challenges for Rwandans aggrieved in Uganda to seize the African Court of Human and People’s Rights.

Finally, other stakeholders, including the United Nations, should be interested because of its global mandate. However, other possibly interested organizations such as the Commonwealth, representatives of donor organizations/embassies, the United Nations, and other individuals of upright values in peace and security. These last stakeholders may include external development donors. Both countries have been registering human development improvements and looking for external development aid. I am convinced that these state organizations (such as DFID or USAID or even envoys of the President / Prime Minister) can serve, if interested and willing, as guarantors of a peace settlement. These have effective carrots and sticks to ethically motivate Rwanda and Uganda to refrain from actions conducive to destabilization of the other party through training, financing, and infiltration of hostile forces. These incentives, in my opinion, are strong enough to encourage them to respect and respect the rights and freedoms of Ugandans and Rwandans living or transiting in each other’s territory and to recommence their cross-border movements, including the movement of persons and goods as soon as possible [127].

7. Museveni’s Only First Son: The Dawn of Change?

On the 22 of January 2022, newspapers reported that Lieutenant General Muhoozi Kainerugaba, the Commander of Land Forces of the UPDF, and first son of Museveni, visited Kigali. Before his visit, he posted a tweet: “This is my uncle, Afande Paul Kagame. Those who fight him are fighting my family. They should all be careful.” It left commentators and analysts wondering whether the dawn of change was in sight. Before his visit, Kagame had received in Kigali Ambassador Adonia Ayebare, who transmitted a special message from Museveni. The detailed content of the message was not made public, and Muhoozi’s tête-à-tête with his uncle was not made accessible to the public. However, interested analysts speculate on two messages, which may not be mutually exclusive:

First, it had been three years since the Gatuna / Katuna border was closed. The four rounds of negotiations facilitated by the ICGLR did not assuage the situation; the contents of the visit may be a sign of a shift from the deadlock to cooperation. Indeed, both countries lost, but the populace lost more; Kampala may finally be willing to play its part in respect of complaints raised by Kigali. After Muhoozi’s visit, it was hinted that there had been “cordial, productive and forward-looking discussions about Rwanda’s concerns and practical steps needed to restore the relationship between Rwanda and Uganda”[128]. Muhoozi tweeted that Uganda and Rwanda were one country. He recalled that in the 1980’s his family was called Rwandans and called for a need to fight “small problems and move forward together as always!” [129]. As a matter of fact, the 31 of January saw the border open. However, it is not yet fully operational due to anti – COVI9-19 measures that both countries must abide by. These include testing passengers to and from each country. Secondly, there is a feeling that Muhoozi, a Presidential advisor on special military operations, discussed with his uncle matters beyond the border opening. Rwanda and Uganda have no choice but to cooperate with their neighbours on regional security. UPDF is engaged in DRC, following the invitation of Tshisekedi. It is engaging ADF combatants, a terrorist organisation that operates beyond DRC. Recently, Rwanda security forces apprehended 13 fighters, plotting a revenge against Rwanda for its active involvement in fighting terrorism in Mozambique. Since UFDF’s engagement in DRC, the landscape of terrorist organisations has changed, allowing the Democratic Forces for the Liberation of Rwanda (FDLR), Rwanda National Congress (RNC), and Urunana, to take advantage of the situation to increase recruiting from refugee camps, with the goal of destabilizing Rwanda. Therefore, both sides should be pragmatic in forgetting about “minor” border issues and focusing on a joint enemy.

Either way, after the visit, Uganda’s President reshuffled the Chieftaincy of Military Intelligence (CMI) leadership where Maj Gen Abel Kandiho, renowned for persecuting Rwandans on the territory of Uganda and supporting the activities of RNC, was redeployed[130]. Muhoozi went on to tweet that “activities of terror outfit Rwanda National Congress (RNC) in his country nearly led Rwanda and Uganda to a ‘stupid war,’ warning the subversive group to stop their adventure in the East African nation [131]. The paragraph is worth comment. The change of staff in CMI may speak to Uganda’s political will to halt the enmity that has characterized Uganda and Rwanda. Whether RNC criminal activities put sister countries on the brink of “stupid war” may not be substantive. Uganda has the means to verify what was happening; CMI and RNC activities did not happen incognito to the senior country leadership. It is commendable that positive changes are happening, Uganda and Rwanda can now pursue their interest constructively.  Developments are still positive. The East Africa reported that Muhoozi plans to be in Kigali to hone out some pending issues. One of horny issues that political analysists have suggested in the support that Uganda needs to withdraw from Kayumba and his collaborators[132]. In March 2022, Muhoozi came to Kigali again. While the tête à tête happened on camera, commentators suggest that the two leaders ironed out the safety of Rwandans who travel to Uganda and the issue of hostile groups allegedly supported by Uganda, such as the Rwanda National Congress (RNC)[133]. These developments are likely to facilitate the resolution of the conflict that has existed between the two sister countries. While the diplomatic ties between countries should be driven by institutions, the case at hand proves the opposite. However, parties should not miss the change in attitudes from individuals participating in the conflict.

8. Final Reflection

This paper interrogates the conflict between Uganda and Rwanda, which has lasted for three years. It also reminisces and scrutinizes the conflict management strategies. Documents analysis and historiography worked together to examine the applicability of political realism to the friendship and enmity between the two neighbouring states. States are more stable than individuals in offices. In the context at hand, people in the highest offices of both states did not change, which has partly complicated the matter. The paper also notes that the Uganda’s first son’s visit to his “uncle” might be a game changer in the bilateral relations. While institutions should drive bilateral exchanges, the situation at hand proves this stance wrong. Based on the reality, Rwanda and Uganda should not miss this opportunity to improve their exchanges. The paper argues that the realist view applies to this situation. Rwanda and Uganda, like other states, are motivated by national interests; they need and seek power to protect their interests, often in a competing manner.

However, the refugee factor is not the core root cause of the conflict. On the contrary, refugees become a resource that fuels the conflict when one state hosts them, or states host each other’s refugees. In other words, competing neighbouring states use refugees to threaten the security of their neighbours. Based on the discussion, the paper encourages democratic states to use their institutions instead of presidents’ family members to attend to conflicts in a competing manner. If the two states fail to settle their conflicts, the paper recommends that regional bodies take bold steps to recall their members’ obligations under international law. In case they host refugees from their neighbours, the paper recommends the observance of the humanitarian and civil character of asylum.

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———. “Disappointment: Rwanda-Uganda Border Not Opening Today, May Be Opened In 45 Days or Even Never,” February 21, 2020. https://www.chronicles.rw/2020/02/21/disappointment-rwanda-uganda-border-not-opening-today-may-be-opened-in-45-days-or-even-never/.

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Footnotes:

[1] Worldometer, “Rwanda Population (2021),” 2021, https://www.worldometers.info/world-population/rwanda-population/.

[2] The International Trade Administration, “Rwanda – Market Overview,” 2021, https://www.export.gov/article?series=a0pt0000000PB09AAG&type=Country_Commercial__kav.

[3] Statistica, “Rwanda: Share of Economic Sectors in the Gross Domestic Product 2009-2019,” November 18, 2020, https://www.statista.com/statistics/452199/share-of-economic-sectors-in-the-gdp-in-rwanda/.

[4] Worldometer, “Uganda Population,” 2021, https://www.worldometers.info/world-population/uganda-population/.

[5] The Government of Uganda, “The Economy,” 2021, https://www.gou.go.ug/about-uganda/sector/economy.

[6] Rene Lemarchand, “Rwanda: Culture, History, & People,” Encyclopaedia Britanica, 2021, https://www.britannica.com/place/Rwanda.

[7] Omari H. Kokole, “Uganda: Culture, History, & People,” Encyclopaedia Britanica, 2021, https://www.britannica.com/place/Uganda.

[8] A K Kaiza, “The Rwanda-Uganda Border Closure: When Love Turns to Hate…and Rebels Become Tyrants,” April 5, 2019, https://www.theelephant.info/features/2019/04/05/the-rwanda-uganda-border-closure-when-love-turns-to-hateand-rebels-become-tyrants/.

[9] Kaiza.

[10] Déogratias Byanafashe and Paul Rutayisire, History of Rwanda: From the Beginning to the End of the Twentieth Century (Kigali: National Unity and Reconciliation Commission (NUCRC), 2016).

[11] Sophie Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda,” World Politics Review, October 17, 2019, https://www.worldpoliticsreview.com/articles/28272/the-dangers-of-deteriorating-relations-between-rwanda-and-uganda.

[12] W. Julian Korab-Karpowicz, “Political Realism in International Relations,” in The Stanford Encyclopedia of Philosophy, ed. N. Zalta Edward (USA: Stanford University, May 24, 2017), https://plato.stanford.edu/entries/realism-intl-relations/.

[13] Mark V Kauppi and Paul R Viotti, International Relations Theory: Realism, Pluralism, Globalism and beyond | Mark V. Kauppi; Paul R. Viotti | Download, 3rd ed. (Boston, London,: Allyn and Bacon, 2007), 59.

[14] Korab-Karpowicz, “Political Realism in International Relations.”

[15] Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962).

[16] Dan Remenyi, Brian Williams, and Arthur Money, Doing Research in Business and Management: An Introduction to Process and Method (London: SAGE Publications, Inc, 2003).

[17] Zina O’Leary, The Essential Guide to Doing Your Research Project, 2nd ed. (Thousand Oaks, California: Sage Publications, 2014).

[18] John W Creswell, Research Design : Qualitative, Quantitative, and Mixed Methods Approaches, 2nd ed. (London, New York: Sage Publications, Inc, 2003).

[19] Bruce L Berg and Howard Lune, Qualitative Research Methods for the Social Sciences, 8th ed. (Boston: Pearson, 2012), 315.

[20] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels,” March 5, 2019, https://www.voanews.com/africa/rwanda-accuses-uganda-supporting-rebels.

[21] Tony Geoffrey Owana, Could Exiles Have Returned to Rwanda without War? Part 3: I Am Not Rwandan, M7 Assures Habyarimana, 2020, https://www.youtube.com/watch?v=pTXXuwFgsN0.

[22] Byanafashe and Rutayisire, History of Rwanda.

[23] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[24] Byanafashe and Rutayisire, History of Rwanda, 625.

[25] Paul Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War,” July 3, 2019, https://africacenter.org/spotlight/escalating-tensions-between-uganda-and-rwanda-raise-fear-of-war/.

[26] Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda.”

[27] United Nations, “Midterm Report of the Group of Experts on the Democratic Republic of the Congo (S/2018/1133)” (Washington, D.C: United Nations, 2018), https://www.undocs.org/S/2018/1133.

[28] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[29] Organic Law N° 01/2012/OL of 02/05/2012 instituting the penal code, Article 498

[30] Ibid, Article 704

[31] Ibid, Article 136

[32] Ibid, Article 709 (5)

[33] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[34] Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda.”

[35] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[36] Nantulya.

[37] Collin Mwai, “Government Allays Fears on Imports, Exports from Uganda,” March 5, 2019, https://www.newtimes.co.rw/news/fears-imports-exports-uganda.

[38] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[39] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[40] The Chronicles, “Confirmed: Kampala-Kigali Railway Line Put Off Until Further Notice,” April 29, 2019, https://www.chronicles.rw/2019/04/29/confirmed-kampala-kigali-railway-line-put-off-until-further-notice/.

[41] Mwai, “Government Allays Fears on Imports, Exports from Uganda.”

[42] UNHCR, “The Cessation Clauses: Guidelines on Their Application UNHCR, Geneva” (RefWorld, April 1999), 6, https://www.refworld.org/pdfid/3c06138c4.pdf.

[43] Frank Ahimbisibwe, Bert Ingelaere, and Sarah Vancluysen, “Rwandan Refugees and the Cessation Clause: The Possibilities for Local Integration in Uganda” (Conjonctures de l’Afrique centrale, 2019), 412, https://www.eca-creac.eu/sites/default/files/pdf/2019_-_16_-_f._ahimbisibwe_b._ingelaere_s._vancluysen_-_rwandan_refugees_and_the_cessation_clause_the_possibilities_for_local_integration_in_uganda.pdf.

[44] Frank Ahimbisibwe, “The Politics of Repatriation: Rwandan Refugees in Uganda | Institute of Development Policy | University of Antwerp,” Working Paper (Antwerpen: University of Antwerp, 2017), https://medialibrary.uantwerpen.be/oldcontent/container2673/files/Publications/WP/2017/wp-201709.pdf?_ga=2.164221564.2119845896.1645600935-535467521.1645600935.

[45] Johnson Kanamugire, “African Countries in a Fix as Rwanda Refugee Status Ends,” The East African, July 6, 2020, https://www.theeastafrican.co.ke/news/Rwanda-refugee-statusends-/2558-4271610-w74qg5z/index.html.

[46] The Republic of Uganda and UNHCR, “Country – Uganda,” December 31, 2021, https://data2.unhcr.org/en/country/uga.

[47] The Standard, “Sources Reveal a Rebel Recruitment Drive in Uganda to Destabilise Rwanda,” The Standard, December 2, 2017, https://www.standardmedia.co.ke/commentary/article/2001261901/opinion-rnc-cmi-intensify-recruitment-against-rwanda-in-ugandan-refugee-camps.

[48] Annet Nabakooza, “Uganda Intensifies RNC Recruitment to Destabilize Rwanda,” 2021, https://thegreatlakeseye.com/post?s=Uganda-intensifies-RNC-recruitment-to-destabilize-Rwanda_227.

[49] Associated Press, “Uganda Charges Ex-Police Chief Who Fell out with President,” AP NEWS, August 24, 2018, https://apnews.com/article/d57ed623e32d49dbabb7cf5493a1a2f8.

[50] AfricaNews, “Uganda’s Ex-Police Boss Kayihura Charged with Arming Criminal Gangs,” Africanews, August 24, 2018, https://www.africanews.com/2018/08/24/uganda-s-ex-police-boss-kayihura-charged-with-arming-criminal-gangs/.

[51] Worldometer, “Rwanda Population (2021).”

[52] Worldometer.

[53] Statistica, “Rwanda: Share of Economic Sectors in the Gross Domestic Product 2009-2019.”

[54] Statistica, “Rwanda – Trade Balance 2009-2019,” Statista, 2021, https://www.statista.com/statistics/452223/trade-balance-of-rwanda/.

[55] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[56] Nordea Trade, “Foreign Trade Figures of Rwanda – Economic and Political Overview,” 2021, https://www.nordeatrade.com/en/explore-new-market/rwanda/trade-profile?#classification_by_country.

[57] Ministry of Foreign Affairs – Rwanda, “The First Meeting of the Ad-Hoc Commission on the Implementation of the Luanda MoU between Rwanda and Uganda Convenes in Kigali,” August 21, 2019, https://www.minaffet.gov.rw/updates/news-details/communique-the-first-meeting-of-the-ad-hoc-commission-on-the-implementation-of-the-luanda-mou-between-rwanda-and-uganda.

[58] Eugene Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions,” Voice of America, September 17, 2019, https://www.voanews.com/africa/rwanda-uganda-hold-peace-talks-defuse-tensions.

[59] This was formed by Faustin Kayumba Nyamwasa. He was in Ugandan army as many of his compatriots. He was later the Rwandan Army Chief of Staff and Ambassador of Rwanda to India. The Military High Court (MHC) sentenced him to 24 years in prison for forming a terrorist group, threatening state security, undermining public order, promoting ethnic divisions, and insulting the person of the President of the Republic. His sentence includes four years for deserting the Army. He was also dismissed with disgrace from the Rwanda Defence Forces.

[60] United Nations, “Letter S/2018/1133 – E – S/2018/1133 Dated 18 December 2018 from the Group of Experts on the Democratic Republic of the Congo Addressed to the President of the Security Council,” December 18, 2018, https://www.undocs.org/S/2018/1133.

[61] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[62] Mathew Ndirima, “Museveni’s Frustrated Efforts to Turn Rwanda into Avassal State Don’taugur Well for Regional Stability,” The New Times | Rwanda, May 30, 2019, https://www.newtimes.co.rw/opinions/museveni-frustrates-regional-stability.

[63] Byanafashe and Rutayisire, History of Rwanda, 625.

[64] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[65] Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda.”

[66] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade, and the Environment (Baltimore and London: The Johns Hopkins University Press, 1995), 30.

[67] Worldometer, “Uganda Population.”

[68] The Government of Uganda, “The Economy.”

[69] Nordea Trade, “Foreign Trade Figures of Uganda – Economic and Political Overview,” 2021, https://www.nordeatrade.com/en/explore-new-market/uganda/trade-profile?

[70] Mwai, “Government Allays Fears on Imports, Exports from Uganda.”

[71] East African Community, “Overview of EAC,” 2021, https://www.eac.int/overview-of-eac.

[72] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[73] United Nations, “Secretary-General Welcomes Rwanda-Uganda Memorandum of Understanding, Urging Neighbours to Restore Friendly Ties Cooperation for Regional Stability,” August 23, 2019, https://www.un.org/press/en/2019/sgsm19708.doc.htm.

[74] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[75] Ministry of Foreign Affairs – Rwanda, “The First Meeting of the Ad-Hoc Commission on the Implementation of the Luanda MoU between Rwanda and Uganda Convenes in Kigali.”

[76] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[77] Mariam Abele, “Talks between Uganda, Rwanda Reach Stalemate,” December 14, 2019, https://www.aa.com.tr/en/africa/talks-between-uganda-rwanda-reach-stalemate/1673702#.

[78] The Chronicles, “Disappointment: Rwanda-Uganda Border Not Opening Today, May Be Opened In 45 Days or Even Never,” February 21, 2020, https://www.chronicles.rw/2020/02/21/disappointment-rwanda-uganda-border-not-opening-today-may-be-opened-in-45-days-or-even-never/.

[79] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[80] Voice of America, “Uganda, Rwanda Leaders Sign Pact Aimed at Ending Standoff,” August 21, 2019, https://www.voanews.com/africa/uganda-rwanda-leaders-sign-pact-aimed-ending-standoff.

[81] United Nations, “Secretary-General Welcomes Rwanda-Uganda Memorandum of Understanding, Urging Neighbours to Restore Friendly Ties Cooperation for Regional Stability.”

[82] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[83] Alexander Nikolaev G., International Negotiations: Theory, Practice, and the Connections with Domestic Policies (Toronto: Lexington Books, 2008), 4.

[84] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[85] Nikolaev, International Negotiations: Theory, Practice, and the Connections with Domestic Policies, 4.

[86] United Nations, “Midterm Report of the Group of Experts on the Democratic Republic of the Congo (S/2018/1133).”

[87] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[88] Kigali Today, “Resolutions of Rwanda & Uganda First Meeting on Luanda MoU,” September 16, 2019, https://www.youtube.com/.

[89] Ministry of Foreign Affairs – Rwanda, “The First Meeting of the Ad-Hoc Commission on the Implementation of the Luanda MoU between Rwanda and Uganda Convenes in Kigali.”

[90] Roy J. Lewicki, David M. Saunders, and John W. Minton, Essentials of Negotiation, 2nd ed. (Boston: McGraw-Hill Irvin, 2001), 30.

[91] Hampson and Hart, Multilateral Negotiations: Lessons from Arms Control, Trade, and the Environment, 248.

[92] Kigali Today, Why Did Kampala Talks Fail? Kuteesa and Nduhungirehe Explain, 2019, https://www.youtube.com/watch?v=Ny4ZhXtUoSU.

[93] Abele, “Talks between Uganda, Rwanda Reach Stalemate.”

[94] The Chronicles, “Confirmed.”

[95] Abele, “Talks between Uganda, Rwanda Reach Stalemate.”

[96] Mukankusi is the Commissioner for Diplomacy in Rwanda National Congress (RNC), a terror group that works to destabilise security in Rwanda. RNC is the organisation behind the spate of grenade attacks in Kigali between 2010 and 2013 that killed several Rwandans and injured many more. For long, Mukankusi has held a Ugandan passport, with which she is said to have been conducting RNC’s different activities.

[97] The Chronicles, “Disappointment: Rwanda-Uganda Border Not Opening Today, May Be Opened In 45 Days or Even Never.”

[98] Anthony Aust, Modern Treaty Law and Practice, 2nd ed. (Cambridge: Cambridge University Press, 2007), 75.

[99] Aust, 17.

[100] United Nations, “The 1969 Vienna Convention on the Law of Treaties” (United Nations Treaty Series, 2005), https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

[101] Antonio Cassese, International Law, 2nd ed. (Oxford, United Kingdom: Oxford University Press, 2005), 13.

[102] APANEWS, “Uganda Releases 12 More Rwandans,” accessed June 22, 2021, http://apanews.net/en/news/uganda-releases-12-more-rwandans.

[103] TV Rwanda, “Kagitumba: Six Rwandans Released by Uganda Received by Rwanda,” February 3, 2021, https://www.youtube.com/.

[104] Igihe, “Kagitumba Border: Uganda Has Released 79 Rwandans That Were Jailed in Various Detention Facilities,” June 9, 2020, https://www.youtube.com/.

[105] RBA, “Rwandans Beaten up in Uganda on Allegations of Spreading COVID-19,” March 30, 2020, https://www.youtube.com/.

[106] RBA, “BYUKUSENGE:  A Student at Mount Kenya University Reaches Rwanda after a Time of Illegal Detention in Uganda,” May 5, 2021, https://www.youtube.com/.

[107] Greg G. Dixon, International Law in International Relations: Historical and Contextual Background of Contemporary International Law – Part 1, 2014, https://www.youtube.com/watch?v=G6PMzBFtCww.

[108] ICGLR, “Background,” accessed March 14, 2021, http://www.icglr.org/index.php/en/background.

[109] ICGLR, “ICGLR Overview,” 2018, http://www.icglr.org/index.php/en/background.

[110] United Nations, “Charter of the United Nations and Statute of the International Court of Justice” (United Nations, 1945), https://treaties.un.org/doc/publication/ctc/uncharter.pdf.

[111] East African Community, “The Treaty of the Establishment of the East African Community,” 1999, https://www.eala.org/uploads/The_Treaty_for_the_Establishment_of_the_East_Africa_Community_2006_1999.pdf.

[112] AG of Rwanda v Plaxeda Rugumba, para. 39

[113] East African Community, “The Treaty of the Establishment of the East African Community.”

[114] East African Community, “Overview of EAC.”

[115] Amy L Smith and David R Smock, eds., Managing a Mediation Process (Washington, D.C: U.S. Institute of Peace Press, 2008), 13.

[116] The Constitutive Act of the African Union, Article 5(h)

[117] Constitutive Act of the African Union, Article 3

[118] George Makundi Wachira, “African Court on Human and People’s Right. Ten Years on and Still No Justice” (RefWorld), accessed February 26, 2022, http://www.unchr.org/refworld.pdfd/48e4763c2.pdf.

[119] See for example, See for example, Communication 137/94, International Pen and Others (on behalf of Saro Wiwa) v Nigeria, Twelfth Annual Report, para. 116.

[120] Walter Kalin and Jorg Kunzli, The Law of International Human Rights Protection (Oxford: Oxford University Press, 2009), 233.

[121] See for example, AfCHPR, Peter Joseph Chacha v. Tanzania, App. No. 003/2012, Judgment of 28 March 2014, para. 142, available at http://www.african-court.org/en/images/Cases/Judgment/Ruling_Appl_003_2012.pdf (stating that exhaustion of domestic remedies “is not a matter of choice. It is a legal requirement in international law”).

[122] See in this regard Ambatielos Arbitration (Greece/ Great Britain), 1956, 12 R/AA 83, (ICJ).

[123] Communications 25/89, 47/90, 56/91 & 100/93, World Organization against Torture and Others v Zaire (Zaire mass violations case), Ninth Annual Report, para. 36

[124] ACommHPR, Sir Dawda K. Jawara v. Gambia, para. 30.

[125] See for example Comm. Nos. 147/95, 149/96 of the African Commission, Jawara v. The Gambia, para. 31.

[126] Chittharanjan Felix Amerasinghe, Local Remedies in International Law, 2nd ed. (Oxford: Oxford University Press, 2004), 133.

[127] Voice of America, “Uganda, Rwanda Leaders Sign Pact Aimed at Ending Standoff.”

[128] James Karuhanga, “What next after Muhoozi’s Visit to Kigali?,” The New Times | Rwanda, January 24, 2022, https://www.newtimes.co.rw/news/what-next-after-muhoozis-visit-kigali.

[129] Muhoozi Kainerugaba, “Muhoozi Kainerugaba on Twitter,” Twitter, January 23, 2022, https://twitter.com/mkainerugaba/status/1485092752459280386.

[130] Kenneth Kazibwe, “Uganda: Maj Gen Kandiho Replaced As Cmi Boss in Latest Reshuffle,” allAfrica.com, January 25, 2022, https://allafrica.com/stories/202201250594.html.

[131] Edmund Kagire, “Gen. Muhoozi Says RNC Criminal Activities in Uganda Nearly Led Rwanda, Uganda To a ‘Stupid War,’” KT PRESS (blog), February 19, 2022, https://www.ktpress.rw/2022/02/gen-muhoozi-says-rnc-criminal-activities-in-uganda-nearly-led-rwanda-uganda-to-a-stupid-war/.

[132] Gilbert Mwijuke, “Did Uganda Just Acknowledge Presence of Rwandan Rebels Operating from Its Soil?,” The East African, February 26, 2022, https://www.theeastafrican.co.ke/tea/news/east-africa/uganda-acknowledge-presence-rwandan-rebels-operating-its-soil-3730138.

[133] Edmund Kagire, “President Kagame, Gen. Muhoozi Hold Talks on Rwanda-Uganda Ties,” KT PRESS (blog), March 14, 2022, https://www.ktpress.rw/2022/03/president-kagame-gen-muhoozi-hold-talks-on-rwanda-uganda-ties/.

Rwandan Refugees as Combatants in the Great Lakes Region of Africa

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR. The article addresses events surrounding the genocide committed against the Tutsi in 1994 and the armed movements that followed; the historical account and the assessment of the actors reflect the author’s own perspective, and the editorial position of this journal is neutral.

ABSTRACT *

This article traces the successive waves of Rwandan refugee displacement from 1959 to the present and examines the circumstances under which refugee populations became combatants. After setting out the definition of a refugee in the Convention of 1951, the Protocol of 1967 and the broader regional definitions of the Organisation of African Unity and of Cartagena, the author distinguishes three periods. The first covers the displacement of Tutsi following the events of 1959 and subsequent years, the failed incursions of the inyenzi, the obstacles placed in the way of return, and the eventual formation of the Rwandan Patriotic Front among refugees in Uganda. The second covers the displacement that followed the genocide of 1994, the militarisation of the camps in eastern Zaire, the resulting breach of the civilian and humanitarian character of asylum, and the sequence of armed formations from the former armed forces and Interahamwe through to the FDLR. The third addresses the political opposition groups reported to operate under the Platform Five. The article closes with the cessation clause declared in 2013 and the situation of those who have not returned.

KEYWORDS *

Rwanda, refugees, Great Lakes region, 1951 Refugee Convention, OAU Convention, civilian and humanitarian character of asylum, militarisation of camps, FDLR, Rwandan Patriotic Front, cessation clause, statelessness, repatriation

INTRODUCTION

Rwanda has been a country of origin for refugees since her early years as an independent state to date. Rwanda Patriotic Front (RPF), the ruling party born in exile, has been keen on repatriating refugees. In this line, the Government of Rwanda has indefatigably collaborated with other states and partner organisations to ensure the repatriation of Rwandese refugees and the elimination causes of refugeehood from the national law, policy, and practice. Nonetheless, there are Rwandans in neighbouring countries and have reportedly participated in armed struggles across the region. It not only hinders their voluntary repatriation but also threatens peace and security in Rwanda and the region.

This paper sets out to investigate the history of Rwandese refugee outfluxes and envisages a future where no Rwandese will be a refugee. The paper defines a refugee from the international refugee law perspective. It attempts to delineate push factors for Rwandese refugees, interrogate circumstances under which Rwandese refugees became combatants, explore implications for peace and security in the Great Lakes region. Finally, it poses conditions for sustainable peace in the region.

MAIN CORPUS

Who is a refugee?

Different academic disciplines define “refugee” differently. This paper uses the definition of the 1951 Convention relating to the Status of refugees (hereinafter the 1951 Refugee Convention). Accordingly, Article 1A (2)[1] clarifies that a refugee is any person who has a well-founded fear of persecution for nationality, race, membership of a particular social group or political opinion resulting from events that occurred before 1 January 1951. Due to such a founded fear, a person is not willing/able to avail him/herself to his country of nationality or unwilling to return to the former nationality.

However, this definition has limitations. It applies to “refugees” on the territory of Europe (there were approximately 1.2 million European refugees after World Wat II[2]), and therefore, the effect of the Convention was construed in a temporal (before 1 January 1951) and spatial scope (Europe). This limitation necessitated the 1967 Protocol. Article 1(2) of the Protocol[3] omits the “as a result of such events” in article 1 A (2) of the Convention to expand the scope. The protocol’s definition retains reasons for prosecution outlined in the 1951 Convention.

Nonetheless, the definition was thus far construed to the geographical content and effects of WWII. The Organisation of African Union (OAU) extended the definition in the context of colonisation and decolonisation in Africa by including elements of foreign domination and other issues that may cause forced emigration. As such, article 1 (2) of the 1969 OUA definition details other conditions for becoming a refugee: external aggression, foreign domination or grave partial or generalised public order, occupation[4], thus making the definition more comprehensive.

Similarly, due to refugee crises in Central America which caused large numbers to flee generalised violence and oppression, Latin American states adopted the Cartagena Declaration in 1984. Its third article considers the 1951 Convention and 1967 Protocol. It adds that a person becomes a refugee after running away from their country of nationality due to lack of safety or freedom threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or any situation that considerably disturbs public order[5], thus making it more comprehensive than the 1951 Convention.

The two regional definitions of the concept “refugee” clearly extend the 1951 refugee convention’s definition and corroborate the 1967 refugee protocol. This paper will use the OAU’s definition. Legitimate causes of being a refugee include external aggressions, occupation, foreign domination, and events seriously gravely disturbing public order in a part of or the whole of the country of origin/nationality.

Rwandan Refugees: Militarisation Context

For ease of analysis, the paper divides events into three: Fragile Independence 1959 -1973), Civil War, Genocide and Emergency Period (1990-1998), and the “post-genocide” situation. For each of these events, the paper outlines refugee outfluxes’ context and investigates the militarisation context.

Fragile Independence (1959-1973)

Under this, the paper explores causes that led to forced migration and circumstances under which they were militarised. Like many African territories, Rwanda was a kingdom. European visitors came to Rwanda out of research curiosity; the culture of Rwandans and the source of the River Nile had been opaque to the European world. During the Berlin Conference or partitioning of Africa, Rwanda became an annex to the Das deutch-ostafrikanische Schutzgebiet (East African German protectorate). In 1989, Dr Richard Kandt came to Rwanda to document findings in his Caput Nili. The German Reich was so impressed that they appointed him a Resident of Rwanda. His decision gave birth to Kigali, the Capital City of Rwanda, as evidenced by the Richard Candt Museum in Kigali. He is also credited for having introduced coffee to Rwanda. He would later go back to Germany in 1913 due to sickness and would not return[6] since his sunset on 29 April 1918 coincided with the World War approaching the end (November 1918), but German lost it.

As a punitive measure to German, the rest would be that the Kingdom of Belgium under Leopold II assumed the protection of Rwanda. In collaboration with the Catholic Church Missionaries, the Belgian administration would later divide and rule the Rwandans; using the Tutsi as pulpits to mistreat the Hutu, they would later find it easy to instigate the Hutu to rise against the Monarch in the so-called 1959 Social Revolution.

This so-called revolution received a divided interpretation; for the Hutu, it meant the end of oppression, while for the Tutsi, it meant oppression. Ethnic tensions, region-based political parties. King Mutara III Rudahigwa passed on in circumstances that remain opaque; it was necessary to take a yellow fever vaccine before travelling to New York. Bujumbura was the only option for him to take it. After injection, he never saw his people again. Rwandans mourned the death of a man who had wanted unity. The colonial ruler arranged for a symbolic replacement by Kigeli V Ndahindurwa, son of the de cojus[7] who would rule in theory but unable to assert his voice in the conduct of the country’s affairs.

Between September 1959 and May 1960, there were 20 political parties, of which four big ones were going to dominate. The big ones were: APROSOMA (Association pour la Promotion Sociale de la Masse), whose membership was Hutu; UNAR – Union Nationale Rwandaise, with a mission to fight divisive ideologies among Rwandans; RADER – Rassemblement Democratique Rwandaise, reportedly created with the support of the missionaries and members of the colonial rule to fight the UNAR; and the PARMEHUTU – Parti du Mouvement de l’Emancipation des Bahutu, reportedly supported by some Europeans, missionaries, and members of the colonial rule to fight the Tutsi[8] whom they hated.

Amidst the divisions, elections were organised at different levels. At Commune levels, elections took place between 28 June and 30 July 1960, where the people elected 229 bourgmestres (mayors) and 2896 Commune Advisors. PARMEHUTU took 70.4% of the seats. The Referendum was also organised where 80% were in favour of shifting from monarchy to republic. Behind the scenes, however, the process was manipulated by the Belgian administration. Finally, the legislative assembly elections whereby PARMEHUTU had 35 seats against 7 for UNAR and 2 for APROSOMA. The king’s efforts to request the annulment of referendum results were futile[9]. There would finally be the 1962 independence, and the leaders of PARMEHUTU would use their party’s manifesto to rule. Amidst these insecurities, extremist Hutus put the Tutsi’s shelters on fire, killings happened here and there, leading to refugee outfluxes to neighbouring countries. No political speech rebuffed this neither has there been any commission to investigate these anomalies.

Amidst this insecurity, some members of UNAR denied what was happening in the country, would launch incursions into the country. These armed groups called inyenzi mushroomed without the will of party leaders (who were busy with diplomatic engagements with the UN to reverse the course of events in Rwanda). Incursions were launched in Bugesera (1963-1964), Cyangugu – Bugarama (1964), Nshili and Bweyeye (1966), deepening thus the resentment that the extremist Hutus had against the Tutsi. For instance, between 8,000 and 10,000 Tutsi were assassinated in Gikongoro alone[10]. The total figure of victims across the country was estimated at 25,000-35,000 death toll, triggering new waves of refugees[11] based on their ethnicity[12]. Estimates suggest that 200,000 were refugees by 1961 in Uganda[13], 245,000 refugees in Burundi[14], 50,000 in Zaire, and 50,000 in Tanzania. While no further inyenzi incursions decreased over time, the racist government continued to hunt the Tutsi. In 1973, similar killings targeted the Catholic seminaries of the Tutsi-dominated clergy and educational establishment[15]. These, among other events, increased the volume of refugee outflows.

It is legitimate to ask why the inyenzi failed. It is a fact that refugees’ reception was not warm. In Uganda, they met the indifference of the British, who were minding the course of events related to decolonisation. It contributed to the militarisation of the Uganda based inyenzi[16]. When Obote took power, he warned the refugees against attacking Rwanda. Around 800 were even expulsed in Zaire and sought asylum in Tanzania because some supported the Mulelists (a rebel movement led by Pierre Mulele in Congo). Rwandese refugees were even attacked and looted. Tanzania extradited some of refugees that Kigali was hunting. In Burundi, while they actively recruited without hindrance, they did not have military support.

In summary, inyenzi failed because they lacked a clear political agenda and leadership. All senior leaders in UNAR were busy attempting to engage the UN to reverse the course of events in Rwanda. Secondly, inyenzi were different factions with distinct leaders such as Hamud, Sebyeza, Mudandi, Kayitare and Ngurumbe). Thirdly, inyenzi did not have military support from host countries. Finally, conflicts amongst leaders of factions played against inyenzi [17]. The cumulative effect was somewhat positive to the government of Kigali as their threat became weak.

Rwandese refugees had to languish in different camps in neighbouring countries. There were legal barriers against their return. In 1966, the first president Gregoire Kayibanda warned returnees against claiming their properties. In the same line, the succeeding president, Juvenal Habyarimana, decreed that the property left behind by refugees belonged to the government, even though government officials did not relinquish these properties. The government of Kigali considered the returnees a priori spies working for inyenzi. Rwandan embassies in countries of asylum, among other duties, had to monitor the activities of refugees[18]. Kigali even fermented animosity between host communities and refugees. For instance, refugees had haunting relationships with the Mutuelle des Agriculteurs des Virunga (MAGRIVI) in northern Zaire and the Abanyarwanda – Bahutu Association in Uganda[19]. It was, therefore, difficult for refugees to enjoy basic security.

In 1963, Rwanda and Uganda established a joint commission on the return of Rwandese refugees. The commission met once 21-28 July 1974 because many officials were clearly against the refugees’ repatriation. On the contrary, refugees sought by Kigali would be refouled. For instance, Kigali refouled about 60,000 refugees and only accepted 1,026 who reportedly fulfiled requirements. August 1976, Rwanda’s Minister to the Presidency instructed that “[t]he return of refugees must be strictly controlled and only encouraged when those applying to return are useful to the country […] since their massive return would conflict with the population explosion”.[20] In 1982, President Habyarimana reiterated that the country was already undergoing too much population pressures to host large numbers of refugees who wanted to return[21]. He expressed his wish to the European Economic Community Review that refugees permanently settle out of the country due to Rwanda’s dense population[22]. In 1986, the ruling party’s central committee proposed an alternative durable solution: the naturalisation of refugees in host states, a decision that refugees did not like. On 09 February 1989, Kigali put in place a special commission on the problems of refugees. Its report was available in 1990 and recommended two venues: repatriation and naturalisation. However, the report required that either a refugee or the international community would guarantee that the returnee would be self-reliant. The paper argues that this was a tacit negative response. Under public international law, the state enjoys a monopolistic right to protect its citizens. If some of these returnees were vulnerable, it was not a reason to deny the right to return. The government of nationality must integrate them into social protection schemes as other citizens. In other words, the government had no political will to receive its citizens.

In tandem with these efforts, refugees had suffered in the countries of asylum. They had, for instance, suffered massacres by Idi Amin’s military in 1978-1979, counter-massacres soon after, and further anti-Rwandan demonstrations in 1982, were deeply accustomed to insecurity and the need for vigilance. They had demonstrated considerable creativity and adaptability in responding to these risks; then organised as “RANU” (the Rwandan Alliance for National Unity), and responded to the massacres mentioned above by joining armies or rebel movements in their host states to learn the skills of war. For instance, Rwandese refugees joined the National Resistance Movement (NRM) rebels in Uganda and the NRM’s victory in 1986 facilitated entry into the military and intelligence in Uganda, where they had access to training, equipment, and connections. With time, RANU metamorphosed into RPF. In the RANU’s Congress held in December 1987, members rebaptised RANU into Rwanda Patriotic Front (RPF) and decided to accelerate the military option. On 1 October 1990, Alas Rwanda Patriotic Army (RPA), the RPF’s military wing, attacked Rwanda, with approximately 3000 men and women[23].

The civil war could culminate in the Arusha Peace Accords[24] , which compiled all the agreements achieved through the peace process. The agreement establishes a Transitional Government (TG) and sets out a time frame for implementation. The Accord’s preamble, among other things, reiterated that the return of refugees was their inalienable right. The first article indicated that RPF/A and the Republic of Rwanda had brought the war to an end. Unfortunately, it was a bearing on the genocide. When President Habyarimana was flying back from Arusha, unknown elements shot down his aircraft. During that very night, the genocide started. The rest would be another failure of humanity to stop the preventable genocide. The armed forces and Interahamwe militia, and ordinary citizens were armed to finish the Tutsi progeny and moderate Hutu in a genocide that lasted for 100 days. Today, the global community reflects on the genocide committed against the Tutsi upon the resolution of the UN general assembly[25]. It would be appropriate to have a section on genocide, but it would be too short of delineating dynamics before, during and after the genocide. RPF/A had found a durable solution to the refugees of 1959 – 1973. However, another outflux was on its way to neighbouring countries.

1994: From ex-FAR and Interahamwe to Forces Démocratiques de Libération du Rwanda, FDLR/Forces Combattantes Abacunguzi (FOCA)

There had been a civil war since 1990. There were approximately 1.5 million Internally Displaced (IDPs) in Rwanda[26]. The genocide against Tutsi and civil war led to another massive outflow of refugees into neighbouring countries: Estimates suggest that by the end of August 1994, there were 1.2 million in Zaire, 10,000 in Uganda, 580,000 in Tanzania, and 270,000 in Burundi[27], making it one of the most significant humanitarian situation globally.

Rwandese refugees from the 1994 caseload was a threat to the peace and security of Rwanda. The government in exile rebranded itself in 1995 as a political body advocating for the return of Rwandan refugees – Rassemblement pour le Retour des Réfugiés et de la Démocratie au Rwanda (RDR)[28]. Refugee camps were militarised and located in the vicinity of the Rwandan border. The large camps in North Kivu in Zaire were a few kilometres away from the Rwandan border. The camps rapidly became the main base for the defeated Rwandan armed forces (Forces Armées Rwandaises, or FAR) and members of the Hutu militia group, the Interahamwe. Exiled Hutu soldiers and militiamen keep the refugees virtually hostage for the next 2-1/2 years[29].

Meanwhile, the ex-FAR in Zaire continued their hard-line insurgency tactics, launching attacks on places like schools, where they would order students to separate based on ethnicity, then kill the Tutsis[30]. They would also conduct targeted killings of local government officials and other opinion leaders, lay ambushes and burn public transport buses, place landmines in rural roads, and sabotage infrastructures such as roads, water resources, electricity lines and bridges. They forcefully recruited young men and women, forced peasants to contribute to the war effort by delivering food to their designated venues, lest one risked their lives. In case of heavy fire from RPA, they would then retreat to the refugee camps. In June 1996, the USA signalled that these combatants were a formidable challenge to the peace and security in Rwanda and called for a concerted action but in vain[31], which gave them some freedom of manoeuvre.

Such conducts contravene the OAU Refugee Convention. While international or regional instruments do not specify the required distance, the OAU Refugee Convention (Article II.6) stipulates that countries of asylum shall settle refugees at a reasonable distance from the frontier of the country of origin. The practise also violates the doctrine of “civilian and humanitarian character of asylum.” According to this principle, only civilians running away from war, conflicts, generalised violence, or persecution can enjoy the refuge. In the same spirit, refugee camps should be arms free, out of reach of fighters and combatants. However, it is possible to grant asylum to combatants or fighters if they surrender their weapons and permanently desist from violence.

Finally, combatants cannot benefit from humanitarian assistance[32]. In contrary to this, humanitarian organisations extended humanitarian support to civilians and combatants alike. Combatants, to some extent, controlled the distribution of aid. Genocidaires enjoyed asylum and humanitarian aid to reinvigorate their dominance and carry out genocide in Rwanda[33]. After learning from experience, the “do-no-harm” principle was developed with a profound understanding that, while humanitarian aid aims at saving lives and relieving misery, it has the potential to intensify rifts between belligerents[34].

Failure to demilitarise refugee camps in Zaire also affected the host country. It exacerbated the protracted land conflicts and volatile ethnic relations involving the rwandophone Congolese. Congolese dictator Mobutu Sese Seko, a good friend and “elder brother” of late president Habyarimana and the former Rwandan regime, tacitly accepted the presence of the ex-FAR as an effective means of containing his domestic opposition, which had traditionally been most loquacious in the east[35]. The presence of ex-FAR and Interahamwe influx alongside the Rwandan Hutu into the North and South Kivu provinces complicated the ethnic balance. The situation worsened in September 1996 when the ex-FAR/Interahamwe (with encouragement from Mobutu, instigated an ethnic cleansing against the Congolese Tutsi, which resulted in refugee outfluxes in neighbouring countries Rwanda inclusive. In early October, the genocidaires allied with the government Forces Armées Zairoises (FAZ) were contemplating replicating the ethnic cleansing campaign in South Kivu when the Congolese Tutsi native to the province (called Banyamulenge) launched a “pre-emptive” attack against ex-FAR/Interahamwe and FAZ positions. Rwanda immediately intervened on the side of the Banyamulenge rebels, which put fire on fuel for the first Congolese War. As such, Rwanda put its weight behind the Alliance des Forces Démocratiques pour la Libération du Congo (ADFL)[36].

One of the first actions of the Rwandans in this rebellion was to send Rwandan civilians and ex-FAR back to Rwanda. On 15 November 1996, they dismantled the camps in eastern Zaire, causing the militia and former troops to flee the camps. It freed more than 500,000 refugees to return home to Rwanda. By the end of the year, more than 1.2 million refugees had returned from Zaire and Tanzania[37]. However, around 30,000 retreated deeper into Zaire’s forests. Other African states, notably Zimbabwe, Angola, and Namibia, had intervened on Mobutu’s behalf during the conflict. Despite this solidarity between some African leaders and the Congolese president, the ADFL, heavily backed by Rwanda, took Kinshasa in May 1997 and declared Laurent-Désiré Kabila president[38].

This exclusion of Rwandans from the governance structures of the DRC undermined the security guarantee for which Rwanda had gone to war, and the Rwandan leadership rapidly engineered a new assault to engage the ex-FAR. It marked the second Congo War. Throughout the War, the pro-Rwandan rebel group, the Rassemblement Congolais pour la Démocratie (RCD), also gained control of much of the DRC’s border with Rwanda and its hinterland, depriving the ex-FAR insurgents of their base and access to the broader set of sympathetic armed groups in the region[39].

Meanwhile, an estimated 5,000 ex-FAR and Interahamwe rebels who had dispersed in North Kivu regrouped to create the Armée de Libération du Rwanda (Rwanda Liberation Army, ALIR) and its political branch, the Peuple en Action pour la Libération du Rwanda (People in Action for the Liberation of Rwanda, PALIR)[40]. Meanwhile, Rwandan Hutus who had fled to the western DRC, Angola, the Republic of the Congo, the Central African Republic (CAR), and Sudan formed ALIR-2. In 1999, ALIR/PALIR and ALIR-2 came into contact with the support of President Joseph Kabila[41]. However, after the massacre by ALIR/PALIR of Western tourists in Bwindi national park, the USA put ALIR / PALIR on the list of terrorist organisations. To efface this bad name, ALIR/PALIR became the Democratic Forces for the Liberation of Rwanda (FDLR) / Forces Combattantes Abacunguzi (FOCA)[42].

FDLR/FOCA took hostage Rwandese refugees and the Congolese who lived in the area under their control. This civilian population generated incomes for the organisation, was a pool for forced and voluntary recruitment. In addition to weapons that ex-FAR brought from Rwanda in 1994, the FDLR–FOCA acquired weapons from Mobutu and his allies in 1996, President Laurent-Désiré Kabila DRC and his allies between 1998 and 2001. They also received weapons from FARDC through purchases and transfers. Since 2002, they procured from other Congolese armed groups. Also, they captured from enemy forces such as Rwandan Patriotic Army, the CNDP, and the FARDC.

Finally, they received provisions from allied foreign armed groups operating in the Kivu provinces, such as the Burundian Forces Nationales de Libération (National Liberation Forces) and Forces de Défense de la Démocratie (Forces for the Defence of Democracy)[43]. In recent years, the FDLR/FOCA appears to have procured weapons and ammunition primarily from sympathetic segments within the FARDC. In its 2009 report, the UN Group of Experts cites ‘evidence and testimony demonstrating that certain FARDC officers, particularly senior officials in control of the tenth military region (South Kivu), [were] implicated in the deliberate diversion of arms and ammunition to FDLR–FOCA and other armed groups[44]. Ammunition supplies from the FARDC to the FDLR–FOCA gained further momentum in 2012, as the former were eager to count on the latter’s support to contain the new rebellion initiated by the Mouvement du 23 Mars (23 March Movement, M23)[45]. While this collaboration petered out in late 2013, after the defeat of M23, reports suggest individual FARDC soldiers continued to barter or sell their weapons, ammunition, and uniforms to the FDLR–FOCA as late as April–May 2014[46].

Improvements in Rwandan–Congolese relations in late 2008 resulted in the joint 2009 FARDC–RDF ‘Umoja Wetu’ and the Congolese led ‘Kimia II’ operations against the FDLR– FOCA, both of which severely weakened the group militarily[47]. FARDC operations continued from 2010 to 2012 under the name ‘Amani Leo’, sustaining the pressure on the group[48]. In 2012, FDLR–FOCA also came under attack by a few Congolese militias— some of which, such as the Raia Mutomboki, formed self-defence groups to protect communities[49]. One analyst observed that ‘before 2009, no Congolese militia group would have contemplated an assault on the FDLR in its heartland’, highlighting the FDLR–FOCA’s new state of military weakness in 2012[50]. Since then, many FDRL fighters were captured and repatriated. The paper, however, jumps to the new forms of alliances in the following subsection.

Post-Genocide Rebellion: Actors and Factors

It is a fact that Rwanda still considers FDLR a security threat. However, Rwanda National Congress[51] and FDLR allied; the UN Experts Report suggest that all anti-Rwanda rebel movements (Amahoro People’s Congress (Amahoro-PC), the People’s Defence Pact-Imanzi (PDP-Imanzi), the Forces démocratiques unifées-Inkingi (FDU Inkingi), the Social Party-Imberakuri (PS Imberakuri) and the Rwanda National Congress) are under the umbrella of the Platform Five (P5)[52].

The P5 is active in the Southern Kivu in Fizi and Uvira territories. The P5 recruits from several African countries. It also utilises facilitator in East, Central and Southern Africa, and Western Europe. They target Rwandans and use malice to persuade recruits to join the ranks; they promise well-paying job opportunities, recruits converge in Bujumbura from where they are smuggled to DRC through motorised pirogues through Lake Tanganyika or employing rafts via the Ruzizi River. Upon reaching DRC, the recruits are taken to the heights of the Hauts Plateaux to the movement’s base in Bijabo, inside the Bijombo forest.[53]

P5 elements carried out incursions in 2018 (July and December), April 2019 into Rwanda’s territory and claimed lives of civilians. Some rebel commanders were pursued and captured and are facing trial in Rwanda[55]. The Supreme Court of Appeal of South Africa decided to withdraw the refugee status of Nyamwasa upon an application lodged by the CORMSA, the South African Consortium of Refugees and Migrants, a status that he had been enjoying since 2010. The reason for the revocation of the refugee status was accusations against Nyamwasa for war crimes and crimes against humanity reportedly committed between 1994 and 1998[56]. In the same developments, on 01 January 2020, South Africa passed the law that renders illegal refugees’ engagement in political activities related to the countries of origin or participation in South African politics, lest South Africa will deport the “refugees.” [57]

The most recent development has recorded court hearings from Rwandan “refugees” such as Rusesabagina and men who worked for him. Rusesabagina was a refugee under Belgian law. He is also a co-founder of the opposition Rwandan Movement for Democratic Change (Mouvement Rwandais pour le Changement Démocratique, MRCD), a coalition of opposition groups, which has an armed wing known as the Forces de Libération Nationale, (FLN)[58]. As this paper is taking shape, the High Court Chamber for International and Cross Border Crimes in Rwanda is hearing the case for twenty-one suspects over terrorism and other charges. During public hearings, evidence suggests that some neighbouring countries had been supporting rebel movements against Rwanda. For instance, Rwanda accused Uganda of extending a haven and providing support to RNC and FDLR[59]. Besides, there have been tensions between Burundi and Rwanda over allegations of supporting rebels. Both developments have a bearing on the East African Community, which has struggled to strengthen security and political integration[60].

Ending Refugeehood: A Final Reflection on the Cessation Clause

On 30 June 2013, the United Nations High Commissioner for Refugees declared the Cessation Clause for Rwandese refugees (1959 and 1998). According to the 1951 Convention[61], a refugee ceases to enjoy that Status when she/he avails her/himself to the protection of the country of origin through spontaneous or voluntary repatriation or acquires nationality of a new country. In other words, the ceased circumstances make international protection irrelevant since the state protection supplants it. Besides, the ceased circumstances imply that the well-founded fear of prosecution is no longer warranted. In other words, the Cessation Clause for Rwandese refugees implies that circumstances that contributed to refugee outfluxes between 1959 and 1998, including genocidal violence and severe insecurity, are no longer. The Cessation Clause does not require the voluntary consent of the refugee. However, refugees can decide between voluntary repatriation, naturalisation or alternative stay in the country of asylum or elsewhere. By January 2018, approximately 20,000 Rwandan refugees in different African countries were affected by the cessation clause but reluctant to repatriate[62]. Refugees who do not return risk the consequences of de facto statelessness (the inability to enjoy the benefits associated with legal nationality) outside their country of origin, while political dissidents abroad face de jure statelessness (lack of legal nationality in any country)[63].

SUMMARY *

The article’s organising insight is that each wave of displacement produced the conditions for the next. Exclusion from return militarised the first generation of refugees, whose eventual armed campaign contributed to the circumstances in which the genocide occurred, and the flight that followed the genocide produced militarised camps from which two regional wars grew. The mechanism the author identifies at each stage is the same: a population denied any prospect of lawful return, living in insecurity and without status, becomes available for recruitment. His account of the camps in eastern Zaire adds a second element, namely that humanitarian assistance delivered without separating combatants from civilians sustained the armed structures it was intended to relieve, a failure from which the do no harm principle was subsequently drawn.

CONCLUSION

Towards Peace and Security in the Region?

This paper interrogated Rwandese refugees as actors in regional conflicts as it relates to peace and security. It outlined contexts in which major refugee outfluxes occurred and how these refugees became combatants. There have been different causes for forced displacement. In 1959 and subsequent years, the Tutsi fled to neighbouring countries in the context of the legacy of Belgian colonisation and ethnic tensions that ensued and regional politics that claimed the lives of civilians. The inyenzi took arms and attempted to reverse the course of events in vain. Severe conditions in the region coupled with divisionist politics in the host states received refugees. It culminated in creating the Rwanda Patriotic Army that organised an armed struggle and eventually captured power. The termination of the genocide against the Tutsi marked two events: The RPF/A had reached a durable solution for the 1959 and subsequent years caseload of refugees. At the same time, the ex-FAR and Interahamwe drove with them thousands of civilian refugees to the neighbouring countries. Exploiting the prevailing contexts in host states, such as in Zaire, and the lack of adherence to the principle of humanitarian and civilian character of asylum, ex-FAR and the militia pursued their genocide agenda with the support of politicians, which prompted Rwanda’s involvement in many regional wars. After positioning themselves to recapture power in Kigali, the ALIR/PALIR were further changed names until the current FDLR. The paper also examined the post-genocide refugees. They were essentially political, unlike the previous ones who had involved masses. The P5, an umbrella of the opposition to Rwanda, sought an alliance with FDLR under Kayumba Nyamwasa. There is evidence that some countries in the region provide support to P5, which further makes regional peace and security a puzzle. There is a need for a solution to this problem. The individual states or the East African Community can chat the way out of this situation.

POTENTIAL SOLUTION *

The pattern this article documents across sixty years is the most transferable thing in it, and it deserves to be stated as a general finding: protracted displacement without a lawful route home is a security condition, not merely a humanitarian one. The article’s own evidence makes the point twice over. The refusal of return between 1966 and 1990, justified by population density and by the requirement that returnees prove self reliance, produced a generation that acquired military capability in exile. The camps of 1994, placed within kilometres of the border and never separated from the armed structures within them, produced two regional wars. Neither outcome was inevitable, and in both cases the decisive failures were of policy rather than of circumstance.

The camp question has since been answered in doctrine and remains unanswered in practice. Separating combatants from civilians requires screening on arrival, internment of armed elements away from refugee populations, siting at a genuine distance from the border, and a host state willing and able to police what it has agreed. Where the host state has an interest in the armed presence, as Zaire evidently did, none of this occurs, and humanitarian agencies are left with the choice the article describes: assist a population that includes those who control it, or withdraw and abandon the civilians. That dilemma has not been resolved by the do no harm principle; what the principle provides is the obligation to recognise it and to say so publicly, which is what did not happen in 1994.

On return, the cessation clause deserves more scrutiny than the article gives it. Cessation is lawful where the circumstances that caused flight have ceased, and it is an appropriate recognition that a situation has ended. Its application carries two requirements that matter here. Exemption must remain available for those with continuing individual reasons to fear return, which is not a criticism of the country of origin but a standard feature of the mechanism. And those who neither return nor naturalise are left, as the author correctly notes, in statelessness, which is why cessation should be accompanied by a realistic naturalisation route in host states. The fact that some twenty thousand people declined return after 2013 is information about their assessment of their own safety, and the appropriate response is to examine why rather than to treat their reluctance as a problem of compliance.

The armed groups remain, and the instruments available to address them are known: disarmament, demobilisation and reintegration programmes with credible guarantees for those who accept them, prosecution reserved for those responsible for the gravest crimes, and cooperation among states that presently accuse one another of hosting each other’s enemies. What has been missing is not the framework but the mutual confidence to operate it, and this returns to the point made throughout this author’s series: an independent verification mechanism, accepted by all the states of the region, is the instrument that would allow each of them to test the others’ allegations and their own.

Finally, a note on the account itself. This is a contested history, and the terminology and attributions used here reflect one national perspective within it. The genocide committed against the Tutsi in 1994 is an established historical and legal fact and is not among the contested matters. What remains disputed, including in the scholarly literature, is the characterisation of events in 1959 and after, the conduct of forces during and after 1994, and the status of individuals currently before the courts. A journal of this kind serves its readers by presenting such an account as one perspective, thoroughly documented and worth engaging, alongside the recognition that others exist.

* Added by the WMO Editorial Team

REFERENCES

Bibliography

[Bibliography and endnotes 1 to 63 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Convention relating to the Status of Refugees, 1951, Articles 1A(2) and 1C(5), and the Protocol of 1967.

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969, Articles I(2), II(6) and III.

UNHCR, Guidelines on International Protection No. 3: Cessation of Refugee Status, HCR/GIP/03/03, Geneva, 2003.

Arusha Peace Agreement between the Government of the Republic of Rwanda and the Rwandese Patriotic Front, 4 August 1993, including the Protocol on the Repatriation of Refugees.

Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003, OHCHR, Geneva, 2010.

Terry, F. (2002). Condemned to Repeat? The Paradox of Humanitarian Action. Cornell University Press, Ithaca.

Lischer, S. K. (2005). Dangerous Sanctuaries: Refugee Camps, Civil War, and the Dilemmas of Humanitarian Aid. Cornell University Press, Ithaca.

Prunier, G. (2009). Africa’s World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe. Oxford University Press, New York.

Solving Conflicts Between Rwanda and Uganda: What Legal and Institutional Remedies?

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR. This article is the third in a series by the same author on the dispute between Rwanda and Uganda; the account of events and the assessment of the parties’ conduct reflect his own perspective, and the editorial position of this journal is neutral as between the states concerned.

ABSTRACT *

This article asks whether African legal and institutional frameworks can contribute to resolving the dispute between Rwanda and Uganda after four rounds of facilitated negotiation failed to produce lasting results. The author identifies three matters at issue: cooperation by a foreign state with armed groups seeking to destabilise a neighbour, arbitrary arrest and inhuman treatment of foreign nationals, and obstruction of trade within a regional community. He then examines four possible routes: bilateral settlement under the Charter of the United Nations, the East African Community and its Court of Justice, the International Conference on the Great Lakes Region with its protocols on non aggression and judicial cooperation, and the African Union with the Commission and Court on Human and Peoples’ Rights. Particular attention is given to the requirement to exhaust domestic remedies, which the author notes does not apply before the East African Court of Justice but does before the African human rights bodies, and which he considers a substantial obstacle for individuals harmed in a neighbouring state. The article closes with three scenarios: a best case resting on renewed regional facilitation, a most likely case resting on pressure within the East African Community, and a worst case of continued deadlock without military escalation.

KEYWORDS *

Rwanda, Uganda, East African Court of Justice, East African Community, ICGLR, African Union, African Charter on Human and Peoples’ Rights, exhaustion of local remedies, regional dispute settlement, locus standi, Great Lakes region, scenarios

INTRODUCTION

Why This Paper?

There has been a conflict between the Republic of Rwanda (hereinafter Rwanda) and The Republic of Uganda (hereinafter Uganda) for more than two years over security allegations. Mediation efforts have not yielded lasting outcomes. This paper describes the conflict, outlines mediation efforts, reflects on African legal and institutional remedies. Finally, the paper outlines the best-case scenario, the most likely scenario, and the worst-case scenario.

MAIN CORPUS

Conflict: Actors and Factors

Rwanda is one of the smallest countries: 26,338 square kilometres, with the highest population density, 525 per square kilometre, and home to 12,000,000[1]. Rwanda exports and imports through the Northern Corridor (Uganda to Kenya’s Indian Ocean port of Mombasa)[2], located in 1,800km. Alternatively, Rwanda uses the Central Corridor via Tanzania (1,400 km long from Rwanda). Uganda is a neighbour to Kenya in the west, South Sudan in the north, the west of the DRC, and Rwanda and Tanzania in the South. Home to around 45,741,007 people[3], its population density is 229 per square kilometre. While Uganda is landlocked, it enjoys a geographical location that can influence the flow of commodities in and from Rwanda. Rwanda and Uganda are members of the East African Community (EAC).

Recently, the UN’s group of experts[4] reported that Uganda supports the Platform Five (P5), an umbrella organisation that seeks to overthrow the ruling Rwanda Patriotic Front (RPF)[5] headed by Kayumba Nyamwasa[6]. P5 brings together anti-Rwanda groups aimed at destabilising the government in Kigali[7], such as including the Rwanda National Congress[8] and FDLR allied and other movements under the P5 (Amahoro People’s Congress (Amahoro-PC), the People’s Defence Pact-Imanzi (PDP-Imanzi), the Forces Démocratiques Unifiées-Inkingi (FDU Inkingi), and the Social Party-Imberakuri (PS Imberakuri)[9]. The P5 carried out incursions in July and December 2018) and April 2019 and inflicted human and economic losses to Rwanda. Finally, Uganda has been reportedly abducting, illegally detaining, subjecting Rwandans on its territory to torture and other forms of inhuman and degrading treatment[10]. Rwanda also accused Uganda of sabotaging the flow of trade[11]. Uganda has, in its turn, accused Rwanda of attempts to infiltrate its security apparatus and killing its citizens[12], as well as closing the Katuna/Gatuna border. The conflict has caused financial losses on both sides and counterproductive to EAC, on a regional body that seeks to widen and deepen economic, political, social, and cultural integration to advance the standard of living for the people of East Africa through increased competitiveness, value-added production, trade, and investments[13]. Below, the paper outlines mediation efforts and outcomes.

The Attempts: What Have Mediators Achieved?

Under the auspices of the ICGLR – International Conference on the Great Lakes Region, the presidents of Angola, João Manuel Gonçalves Lourenço (hereinafter Lourenço) and the Democratic Republic of Congo – DRC, Félix Antoine Tshisekedi Tshilombo (hereinafter Tshisekedi) have facilitated the process in four rounds:

The first round took place in Luanda. Kagame and Museveni met in Luanda, with the facilitation of Lourenço, Tshisekedi, and Denis Sassou Nguesso (Congo – Brazza)[14]. At the end of the summit, Kagame and Museveni signed an MoU to solve these challenges. To ensure the implementation, Uganda and Rwanda committed to activating an Ad Hoc Commission for the MoU operation and keeping facilitators informed of developments[15]. In a press release, the UN Secretary-General saluted the efforts, urging neighbours to restore friendly ties and co-operation for regional stability[16].

The second round took place in Kigali. Building on the Luanda MoU, Kigali voiced her concerns about cases involving Rwandans, whom it says have been illegally detained or tortured on Ugandan soil. The Minister also voiced Uganda of hosting and supporting terror groups aimed at destabilising the government in Kigali[17]. Regarding the allegations related to supporting the anti- Rwanda forces, Minister Kutesa (Uganda’s MFA) commented that his country benefits nothing in destabilising Rwanda, just like Rwanda benefits nothing in destabilising Uganda[18]. At the end of the day, Manuel Domingos Augusto, the Angolan MFA in attendance, voiced his optimism, saying it testifies how African countries can work together to resolve their issues.

The third round took place in Kampala, after three postponements. Uganda and Rwanda MFAs briefing the media after the meeting, they were glad that the talks were cordial. On a positive note, both parties noted progress in respect of the drafting of the extradition treaty. On the other hand, there is a standoff. Rwanda reiterated its threefold interests: anti-Rwanda armed groups operating in Uganda, illegal arrest and arbitrary detention of Rwandans, and hostile propaganda. Rwanda highlighted that more than 1000 the military intelligence arrested Rwandans in Uganda since January 2019. Minister Olivier highlighted a need for good faith and goodwill from Uganda to implement the Luanda MoU and the Kigali Communiqué. On Uganda’s side, Minister Kuteesa highlighted two issues: attempts for infiltration of security of organs by Rwanda and border closure. He also highlighted that Uganda has no interest in destabilising neighbouring countries’ security[19]. Minister Kuteesa suggested a joint verification mechanism, to which Rwanda replied that no amount of commissions would replace the need for goodwill and good faith. After failing to achieve a substantive agreement on raised issues, both parties agreed they would brief their principals and seek guidance on the way forward.

Finally, the Gatuna / Katuna Summit convened, with the facilitation of Lourenço and Tshisekedi. The people of Rwanda and Uganda were respectively awaiting changes in cross border movements. At the end of the Summit, MFAs bilaterally signed an Extradition Treaty. It is a positive development; any suspected criminal in either country would not be deported but extradited from then on. However, parties hit a stalemate; they did not address other substantive matters. After the summit, the ball was put solely back on the Ugandan side. Uganda had to first deal with the dissidents and rebel forces on its territory fighting Rwanda and ensuring respect for international human rights and international humanitarian laws. Facilitators asked Uganda to finish the homework within a one-month deadline, report to the Adhoc commission, after which the state leaders would meet[20].

Fourteen months have elapsed since the Gatuna Summit, yet nothing has happened. There may be the COVID-19 contributed. Neither effort nor follow up action has been publicly recorded, and their relationships have not improved. One conflict analyst has observed that these efforts have failed due to a lack of goodwill and good faith from Uganda. The mediation did not bear fruits because they lack appropriate carrots and sticks to persuade parties to negotiate in good faith and implement their commitments[21]. The paper, cognisant of the conflict resolution efforts, asks whether African legal and institutional frameworks can contribute to the peaceful co-existence between Rwanda and Uganda? It is the preoccupation of the following section.

The Proposal: African Solutions to African Problems?

From the stories outlined, there are three issues: the co-operation of foreign states with combatants to destabilise the security of a sovereign state, arbitrary arrest, illegal detention and inhuman treatment, and impediment of trade to regional bodies. Below, the paper attempts to review institutional and legal frameworks in Africa that may be relevant in the situation at hand: the Bilateral Arrangements, East African Community, the ICGLR – International Conference on the Great Lakes Region and the African Union (AU).

Bilateral Talks: Uganda and Rwanda

Rwanda and Uganda are independent and sovereign states. The United Nations Charter (article 2, para 1)[22] underscores a principle of the sovereign equality of all the United Nations members. As such, Rwanda and Uganda are legitimate state actors capable of entering into mutually binding agreements. Rwanda and Uganda could have used a pacific settlement of disputes through their embassies or heads of states. The UN Charter[23] urges members to seek a solution utilising negotiation, mediation, enquiry, conciliation, judicial settlement, arbitration, resort to regional agencies/arrangements/other peaceful means of their own choice. The belligerents had an option to activate one of the listed approaches. They, however, missed this opportunity. Luckily, there is a remaining option of resorting to regional agencies, which the paper outlines below.

The East African Community and its Organs: An Institutional and Legal Analysis

The UN Charter does not preclude regional arrangements for international peace and security if they align with the United Nations purposes and principles[24]. As such, UN members entering such arrangements shall settle their local disputes in a pacific manner through such regional arrangements before referring them to the Security Council[25]. In the context at hand, the East African Community (EAC) could have played a role. On 30 November 1999, member states signed the Treaty for the Establishment of the East African Community, and it entered into force on 7 July 2000, amended on 14 December 2006 and on 20 August 2007[26]. Its member states are Burundi, Kenya, Rwanda, Uganda, the United Republic of Tanzania, and South Sudan.

EAC officially seeks to expand economic, political, social, and cultural integration to advance the standard of living for the people through increased competitiveness, value-added production, trade, and investments[27]. The Treaty commits to ensuring peace, security, stability within, and good neighbourliness among the Partner States[28]. The Treaty also articulates principles on which the EAC member states must uphold. The principles include peaceful co-existence and good neighbourliness[29] , and peaceful settlement of disputes[30]. From these provisions, Uganda and Rwanda have a platform that they could have used to settle the ongoing conflict.

Besides, the Treaty provides for the East African Court of Justice[31]. The Legal and Institutional framework governing the East African Court of Justice operations is primarily drawn from the Treaty for the Establishment of the East African Community. It is the Treaty that establishes the court as one of its organs (Article 9); provides for its structures/ composition (article 24); mandate (article 23 and 27). And other incidental issues thereto. Under Article 23(2) and (3) of the Treaty, the EACJ shall consist of the first instance division and an Appellate division. The first instance division is competent to hear and determine, at first instance, any matter before the court under the Treaty, subject to appeal. The EAC Treaty imposes some obligations upon the member states ranging from trade liberalisation, financial co-operation, cooperation in transport and communication, energy, industrial development, science and technology through health and environmental matters[32] , which are bound to bring to the fore much litigation before the court.

Like other courts, the EACJ requires parties to meet the locus standi, the capacity to bring actions or appear in court. A Partner State may seize the court if it considers that another Partner State/organ/institution of the Community has not fulfilled an obligation or has infringed a provision of the Treaty. A State may also seek the court to determine the legality of an Act/ regulation/ directive decision/ action on the ground that it is ultra vires or unlawful or infringes the provisions of the Treaty[34].

It is moreover worth a reflection to discuss the exhaustion of remedies. Under International law, the doctrine of exhaustion of local remedies states that “a State must have the opportunity to redress a supposed wrong within the framework of its domestic legal system before the international responsibility can be called into question at [the] international level. Unlike the African Court of Human and People’s Rights, there is no requirement that applications exhaust domestic remedies as a condition before bringing an application to the court[35], in line with the principle of a “people-centred and market-driven co-operation” as enshrined in Article 7(1) of the EAC – Treaty[36].

The ICGLR: An Institutional and Legal Analysis

The creation of the International Conference on the Great Lakes Region (ICGLR) goes back to the year 2000 when the United Nations Security Council (UNSC) passed resolutions 1291 and 1304, calling for an international conference on security peace, democracy and development in the Great Lakes region[37]. The recognition of ICGLR as a mechanism for combating impunity and promoting justice and human rights requires a critical reflection and understanding of the mechanism’s past, present, and future. In the quest to transform the region into a cosmos of peace, security and sustainable human development, in 2000, the UN Security Council called for an International Conference on peace, security, democracy and development in the Great Lakes Region (see resolutions 1291 and 1304). In November 2004, the eleven Heads of State and Government of the member states unanimously adopted the Dar-es-Salaam Declaration on Peace, Security and Development in the Great Lakes region in Dar es Salaam, Tanzania. They convened once again in Nairobi in 2006 to sign the Pact on Security, Stability and Development in the Great Lakes Region. Later the Secretariat of the ICGLR was established in Bujumbura, Burundi.

Among the relevant protocols, one can cite the protocol of non-aggression and mutual defence in the region, on democracy and good governance, protocol on judicial co-operation, and the Protocol for preventing and punishing the crime of genocide, war crimes and crimes against humanity and all forms of discrimination, as well as the protocol on the Prevention and Punishment of Sexual Violence Against Women and Children (SGBV). For example, the implementation of the Protocol on Non-aggression and Mutual Defence results from the commitment of Member states to eradicate the hostile forces in the region, minimise interstate conflict by forging a common destiny around security issues. The main achievements here have been the neutralisation of FDLR and M23 that were the main actors in eastern DRC and the neighbouring countries.

In the same vein, the Protocol on Judicial Cooperation is worth comment. A meeting of the Ministers of Justice of the ICGLR Member States convened in Livingstone, Zambia, in August 2015 and made firm commitments to accelerate the domestication of the Protocols, including the one on Judicial Cooperation. On the one hand, the meeting pledged to ensure the domestication of four priority Protocols in 2015 and 2016, namely the Protocol for Non-Aggression and Mutual Defence, the Protocol on Judicial Cooperation, and the Protocol on the Prevention and Eradication of Sexual Violence against Women and Children. On the other hand, they committed to complete the domestication of the other six remaining Protocols by 2018. The Network for Judicial Cooperation of the Central Judicial Authorities and Prosecutors of the Great Lakes Region of Africa, usually referred to as “the Great Lakes Judicial Cooperation Network” or “GLJC Network”, was set up during a meeting organised by ICGLR and the Office of the Special Envoy of the Secretary-General of the UN in the Great Lakes Region on 10th and 11th August 2016 in Nairobi, Kenya. It seeks to strengthen central judicial authorities, prosecutors and other actors in the region to combat all forms of cross-border crime and impunity. It is supposed to facilitate investigations within member countries, the extradition of suspects and arrested persons and letters rogatory when investigations are held in a country (see Article 2 of the Statute). However, the ICGLR failed in making negotiators committed to the mutually agreed upon duties and responsibilities.

The African Union: An Institutional and Legal Analysis

The African Union has the potential to attend to African problems. Besides political mediation, the African Charter on Human and People’s Rights (hereinafter called the African Charter) can help. It assumed its place in history in 1981. Before adopting its constitutive act of the African Union[38], human rights were not recognised officially as a preoccupation objective of the African Union (AU).[39] The African Charter on Human and People’s Rights (African Charter) has reflected efforts by the African continent to grabble with concerns over human rights. The African Charter envisages scrutiny by treaty organs over state conduct that violates human rights. The primary organs for monitoring and protecting human rights under this Charter were the African Commission on Human and People’s Rights (Commission), a quasi-judicial body that monitors the Charter and African Court of Human and Human Rights implementation in 2004.[40] With its protocol establishing the African court on human and people’s rights (African Court), the African Charter is a meaningful contribution to the human rights domain and no doubt that there is a demand for respect for the promotion and protection of human rights the continent. However, with the realisation of the fact that there is a need for a robust apparatus for protecting and promoting human rights, unlike African Commission for human and people’s rights (African Commission), whose recommendations were never binding, the African heads of state signed the protocol to establish the African Court[41].

During their functions, the Commission and the Court scrutinise incidents and situations taking place within the domestic legal order of state members to the Charter. The commission has even admitted and affirmed the principle that human rights are not the preserve of the domestic jurisdiction of States.[42] However, the African Charter recognises that the commission may not receive communications related to claims that have not been brought first before organs of the defending state. It is found in article 56 (5) of the African Charter. In the human rights domain today, individual complaints procedures are the most successful ways of human rights[43].

Similarly to other international and regional human rights mechanisms, the African continental human rights bodies generally require complainants[44] to exhaust domestic remedies before submitting a claim.[45] It means that a person must attempt to use the available national legal protections to seek accountability or reparation for the violation, appealing as necessary until the claim can be pursued no further at the national level. If a person does not receive an adequate remedy from a national body, then he or she may submit a complaint against the state for consideration by a supranational human rights body. The rationale of the local remedies rule embodied in article 56 (5) of the African Charter is to permit a State to deal with a claim brought against it using the judicial and administrative venue within its domestic legal order before it is summoned by an international body to answer for the claim.[46] In the World Organization against Torture and Others v Zaire case, the African Commission stated the raison d’être of the rule: “the requirement of exhaustion of local remedies is based on the principle that a government should be made aware of human rights violation to have the opportunity to address such violations before being called before an international body.”[47]

Although complaints submitted to the African Commission on Human and Peoples’ Rights or the African Court on Human Peoples’ Rights must meet all of the admissibility requirements set out in Article 56 of the African Charter, the African Commission has stated that exhaustion of domestic remedies is one of the most critical conditions for admissibility.[48] More significantly, the commission has had to reflect upon the wording “if any” in article 56 (5) of the Charter, that remedies must be in existence or available within the domestic legal order.

Furthermore, the commission emphasised that the remedies must be not only available but also practical.[49] From what is stated above, the rule of exhaustion of local remedies is not considered if those remedies are not available or insufficient. Nevertheless, are these the only exceptions to the rule? Some authors argue that there must be a particular link between the injured person and the defending state in all international legal systems where the exhaustion of local remedies is required. That link may be the voluntary physical presence or residence of the person in the country concerned, property of a particular object located in that country or contractual relationship with that particular state.[50] Logically, the rule of exhaustion of local remedies should not apply to such situations. It will not be justice to oblige a victim in Rwanda to go and exercise local remedies in Uganda, for example, while he has no other link with that country unless the victim has voluntarily submitted himself under the jurisdiction of Ugandan courts. In this case, the paper argues that there are challenges for Rwandans aggrieved in Uganda to seize the African Court of Human and People’s right.

SUMMARY *

The article’s contribution is to shift the question from whether the parties will negotiate to what either could do without the other’s consent. Four rounds of facilitation produced one narrow agreement and then stalled, on the author’s account, because neither the facilitators nor the regional bodies possessed any means of attaching consequences to non performance. Against that, the article surveys instruments that do not depend on both parties agreeing to act: a member state may bring another before the East African Court of Justice unilaterally, and individuals may in principle approach the African human rights bodies. The obstacles the author identifies are practical rather than formal, namely the requirement to exhaust remedies in a state where the applicant may have no standing and no safety, and the absence of any political appetite for litigation between neighbours.

CONCLUSION

What Possible Remedies?

The article has delineated the causes of conflict between Rwanda and Uganda. It has also explored dynamics in the four rounds of negotiation held so far. In a final analysis, the success of the negotiation depends on Uganda’s good faith and goodwill. In this context, the paper proposes three possible actions:

Best Case Scenario: ICGLR. Rwanda and Uganda will respectively realise the imperatives of peaceful co-existence. Uganda will work on the tasks that facilitators assigned and convince the Joint Commission and facilitators. It would lead to the normalisation of the relationships. However, this largely depends on Uganda’s good faith.

Most Likely Case Scenario: East African Community. I do not foresee Rwanda seeking a legal redress venue. The East African Community will realise that the unhealthy relationships between member states are counterproductive to the mission of the regional body. The fellow presidents will urge Kagame and Museveni to cooperate and end the diatribe and malicious activities.

Worst Case Scenario: No Action, Further Hostilities. In the worst-case scenario, each party will stick to guns. The situation will remain as it is. In the context of the state’s raison d’être, each country may continue to mind its businesses, multiply intelligence and counterintelligence, bilateral relations in the region and abroad to resulting in further deterioration of relationships between Uganda and Rwanda. However, I do not foresee an open recourse to military action.

POTENTIAL SOLUTION *

The most useful thing in this article is easily overlooked because the author mentions it and then sets it aside. The East African Court of Justice has jurisdiction over inter state claims without any requirement that domestic remedies be exhausted, and either party could bring the other before it tomorrow. That is an unusually open door in international dispute settlement, and the author’s own prediction that Rwanda will not walk through it deserves examination rather than acceptance.

The reasons states avoid litigating against neighbours are well understood. Adjudication is adversarial and public, it converts a dispute into a contest with a loser, and it forecloses the ambiguity that diplomacy depends on. Against that, the case for using such a court in this particular dispute is stronger than usual. The obstacle at every round of negotiation was that neither party could establish what the other had done, and a court proceeding is precisely a mechanism for establishing facts through evidence rather than assertion. A claim confined to a narrow and documentable question, the treatment of nationals or the obstruction of movement contrary to the Common Market Protocol, would produce a finding neither government could simply dismiss. Even the credible prospect of such a claim alters a negotiation, since a party that may face a ruling has an incentive to settle before one is issued. That is how litigation and mediation ordinarily work together, and treating them as alternatives forgoes the leverage each gives the other.

The verification question runs through all three of this author’s articles and deserves to be named as the pivot. Uganda proposed a joint mechanism; Rwanda answered that what was needed was good faith. Both positions are intelligible and the second is, in negotiation terms, the weaker one, because good faith is exactly what cannot be demonstrated by assertion in a dispute where each side believes the other is lying. A monitoring body with independent membership, genuine access and published findings is what converts an unresolvable exchange of claims into a set of established facts, and its absence is why four rounds produced four communiqués and no change.

Two of the frameworks the article surveys carry more potential than its assessment suggests. The Great Lakes protocols on non aggression and judicial cooperation address precisely the two principal complaints, hosting hostile forces and the handling of each other’s nationals, and their weakness is domestication and implementation rather than content; pressing for that within the existing machinery is more promising than seeking new instruments. And the East African Community has an institutional interest of its own here, since a border closed between two members contradicts the Common Market Protocol directly, which means the Community is not merely a well wisher but a party whose own framework is being breached.

Finally, a word on the article’s own framing. The scenarios rest throughout on Uganda’s good faith, and this reflects the sources on which the series is built, which are almost entirely Rwandan. A dispute in which one party is presented as bearing the entire burden of resolution is one in which that party has little reason to engage, and the strongest version of the author’s argument does not require the attribution. The institutions he describes are available to both states, the verification he calls for would test both sets of allegations, and a settlement in which each side accepts obligations is the only kind that either will implement.

* Added by the WMO Editorial Team

REFERENCES

Bibliography

[Bibliography and endnotes 1 to 50 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Treaty for the Establishment of the East African Community, 1999, Articles 5, 6, 7, 9, 23, 27, 28 and 29, and the Protocol on the Establishment of the East African Community Common Market, 2009.

East African Court of Justice, Attorney General of Rwanda v Plaxeda Rugumba, Appeal No. 1 of 2012.

Pact on Security, Stability and Development in the Great Lakes Region, ICGLR, Nairobi, 2006, with the Protocol on Non Aggression and Mutual Defence and the Protocol on Judicial Cooperation.

African Charter on Human and Peoples’ Rights, 1981, Articles 47 to 49 on inter state communications and Article 56 on admissibility.

Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights, 1998, Article 34(6) on the declaration permitting individual access.

Constitutive Act of the African Union, 2000, and the Protocol Relating to the Establishment of the Peace and Security Council, 2002.

Charter of the United Nations, 1945, Articles 2(1), 33 and 52.

The 2020 Rwanda-Uganda Extradition Treaty: History, Achievements and Challenges

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR. The account of the negotiations and the assessment of the parties’ conduct reflect the author’s own perspective; the editorial position of this journal is neutral as between the states concerned.

ABSTRACT *

This article examines the extradition instrument signed by Rwanda and Uganda at Gatuna on 21 February 2020 and asks whether it constitutes a treaty within the meaning of the Vienna Convention on the Law of Treaties, and whether it has altered the relationship between the two states. After outlining the mutual accusations concerning support for hostile forces, detentions and border restrictions, the author reconstructs the four rounds of negotiation facilitated under the auspices of the International Conference on the Great Lakes Region, from the Luanda Memorandum of Understanding through technical meetings in Kigali and Kampala to the summit at Gatuna. He then reviews the events reported since the signature and argues that the instrument fails four tests: it does not appear to have been registered with the United Nations, it has not generated performance in good faith, it does not operate reciprocally, and it has not been invoked before any international body. The author concludes that the agreement lacks legal force and that it addressed only one of the several matters in dispute.

KEYWORDS *

Rwanda, Uganda, extradition treaty, Vienna Convention on the Law of Treaties, Luanda Memorandum, ICGLR, pacta sunt servanda, reciprocity, treaty registration, detention, East African Community, Great Lakes region

INTRODUCTION

On 21 February 2020, the Ministers of Foreign Affairs (MFA) of Uganda and Rwanda, Sam Kutesa and Vincent Biruta signed an extradition “treaty” in the presence of their Heads of State to ease tensions between the two East African States for over three years. After about two years of tensions, Rwanda and Uganda engaged in peace talks thanks to the facilitation of Presidents Lourenco of Angola, Tshisekedi of DR Congo, and Sassou Nguesso of Congo – Brazza, under the patronage of the International Conference on the Great Lakes Region. The paper outlines the precursors to the treaty. It clarifies that the instrument is not available for a deeper analysis but attempts to examine achievements and the poses conditions for the treaty to deliver to the expectations.

MAIN CORPUS

History of the Conflict

Rwanda is a small country (26,338 square kilometres), with a population of around 12,952,218 in 2020, with a population density of 525 per square kilometre[1], making it one of the most densely populated in Africa. Its neighbour in the North, Uganda, is home to around 45,741,007 people[2], with a population density of 229 per square kilometre.

Rwanda and Uganda have been pointing fingers against each other for intervention in the other’s internal affairs. In the recent past, the United Nations Group of Experts reported that Uganda and other countries in the region facilitated the Rwandan opposition groups “Platform Five – P5″[3], led by General Kayumba Nyamwasa, a former Rwandan Army Chief of Staff and Ambassador of Rwanda to India. The platform seeks to overthrow the ruling Rwanda Patriotic Front (RPF)[4]; in 2018 (July and December) and April 2019, attacked Rwanda and killed civilians; some of their commandos were captured and are facing trial in Rwanda[5]. In addition, reports involved Uganda for illegally detaining, abducting, and torturing some Rwandans on Uganda’s territory. On the other hand, Uganda has been accusing Rwanda of infiltrating the Uganda security apparatus and killing Uganda civilians on Rwanda’s territory[6].

The two neighbouring States also exchanged accusations on the economic front: Rwanda accused Uganda of stopping Rwandan trucks from proceeding to Mombasa Port, resulting in heavy financial losses, without a sufficient explanation[7]. On the other hand, Uganda accused Rwanda of blocking cargos from Uganda and stopping its nationals from crossing into Uganda[8].

Rwanda has economic interests at stake. Rwanda has lost about USD19m per annum in exports to Uganda[9]. Rwanda is landlocked and largely depends on roads through Uganda and Tanzania. In the same vein, the cause of the conflict is rooted in protecting the country’s sovereignty. Uganda also has economic interests at stake; she exported significant volumes of products to Rwanda and has lost more than USD 300m in exports to Rwanda[10]. Uganda also has valid security concerns. It has been fighting rebel movements in DRC, such as the Lord’s Resistance Army (LRA) and the Allied Democratic Movement ADF – NALU, which suggests security alertness.

Rwanda and Uganda are members of the East African Community (EAC). Given its mission[11], the EAC vested interest in the tension between Rwanda and Uganda; it is not possible without political stability and regional security. In other words, Rwanda and Uganda have an interest in ending the conflict. However, the relationships have not improved. Below, the paper outlines the conflict management efforts that led to the extradition treaty.

The History Behind the Treaty

Under auspices of ICGLR, Presidents Lourenço and Tshisekedi of DRC offered to facilitate the negotiation four rounds: Round one took place in Luanda, and two heads of states signed a Memorandum of Understanding; Round Two happened in Kigali as a meeting for the joint Adhoc committee; Round Three happened in Uganda as a meeting for the Joint Adhoc committee, and Round Four happened in Gatuna as a Summit.

Round I: Luanda Mini-Summit in Luanda

On August 21 2019, Kagame and Museveni met in Luanda over this challenge under the auspices of the ICGLR. Rwanda and Uganda presented a list of complaints against each other, and each party responded. They included the interference in each other’s sovereignty; destabilisation activities in each other’s territory; protection of each other’s citizens rights and freedoms in transit or living on the territory; border closure; promote comprehensive cooperation in security, defence, trade and cultural exchange, investment, based on complementary and synergies. At the end of the summit, two heads of states signed an MoU to solve these hiccups. To ensure solutions to these issues, Uganda and Rwanda committed to activating an Ad Hoc Commission for the MoU operation and keeping facilitators informed of developments[12]. The UN Secretary-General applauded the efforts, urging neighbours to restore friendly ties and cooperation for regional stability[13].

Round II: Kigali Technical Meeting

On September 16 2019, building on the MoU signed in Angola one month previously, the Adhoc commission convened in Rwanda. The meeting reportedly proceeded in a cordial and frank manner. The Rwandan MFA highlighted long relationships between Rwanda and Uganda as an input that would facilitate the process. Kigali listed concerns about Rwandans cases, whom it says have been illegally detained or tortured on Ugandan soil. The Minister also voiced Uganda of hosting and supporting terror groups aimed at destabilising the government in Kigali[14]. Hearing both Ministers’ ponderous speeches, one senses a shared commitment to negotiate and respect international law[15]. However, Minister Kutesa commented that his country benefits nothing in destabilising Rwanda, just like Rwanda benefits nothing in destabilising Uganda[16]. It was promising to hear parties define the problem[17].

By the end of the day, the two delegations achieved agreement on some issues: First, Rwanda shared a list of Rwandans detained in Uganda, while Uganda committed to verify each name through due process and release those with no evidence of criminal conduct. Second, parties’ delegations agreed that they would follow due process in dealing with each other’s citizens suspected of any criminal offence. Third, parties reiterated a commitment to refraining from any act of destabilisation against each other. Fourth, parties agreed to finalise the extradition treaty to provide a legal framework for the future exchange of criminal fugitives. Fifth, parties agreed to cease all forms of hostilities in mainstream and social media. Sixth, parties agreed that the movement of goods and services across the shared border and other outstanding issues should be in the next meeting. Finally, the parties agreed that the subsequent meeting would be held in Kampala after 30 days to review the implementation of the Luanda MoU[18]. Manuel Domingos Augusto, the Angolan MFA, shared his optimism, saying it testifies how African countries can work together to resolve their issues[19].

Round III: Kampala Technical Meeting

On December 13 2019, the Adhoc committee met after three postponements. Uganda and Rwanda MFAs briefing the media, ministers noted that the talks were cordial. On a positive note, parties noted progress in respect of the drafting of the extradition treaty. On the other hand, there is a standoff. Rwanda reiterated its threefold interests: anti-Rwanda armed groups operating in Uganda, illegal arrest and arbitrary detention of Rwandans, and hostile propaganda. Rwanda complained that Uganda had arrested more than 1000 Rwandans since January 2019. Minister Olivier highlighted a need for good faith and goodwill from Uganda to implement the Luanda MoU and the Kigali Communiqué. On Uganda’s side, Minister Kutesa highlighted two issues: attempts for infiltration of security of organs by Rwanda and border closure. He also highlighted that Uganda had no interest in destabilising neighbouring countries’ security[20]. Minister Kutesa suggested a joint verification mechanism, to which Rwanda replied that no number of commissions would supplant the need for goodwill and good faith. After failing to achieve a substantive agreement on raised issues, both parties agreed they would brief their principals and seek guidance on the way forward.

In analysis, these talks were prone to a standoff. Parties agree to engage in cordial conversations, but the outcome does not show cordiality and good faith. More than 1,000 Rwandans were arbitrarily arrested and illegally detained in Uganda. Minister Kutesa alleges that these were suspects of attempted infiltration of Uganda’s security apparatus. Does this arbitrary warrant detention and illegal detention? Why are they dumped at the border will irrefutable signs of torture?

Round IV: Gatuna Summit

On February 21 2020, Presidents Paul Kagame and Yoweri Museveni, with lubrication from Lourenço and Tshisekedi, held a summit at Gatuna / Katuna border. As usual, facilitators ingratiate parties and urged them to negotiate in good faith. On the Uganda side, the citizens wore clothes in the National Resistance Movement (NRM) yellow colours, stood by the road, waving to the delegation near the Katuna border. Museveni took time to speak to them and hinted at why he was in the area. There is no doubt, the people of Rwanda and Uganda alike were respectively awaiting changes in cross border movements. Talks happened in camera, and officials briefed the media after that. Below the paper summarises the Summit’s outcomes:

Respect for the sovereignty of each other’s and the neighbouring State’s territory: Uganda proposes a Joint Verification Mechanism. Rwanda replies that there is only a need for goodwill and good faith from Uganda. The Extradition Treaty bilaterally signed by Ministries of Foreign Affairs provides a legal framework of handling nationals of each other suspected of disturbing the sovereignty of a neighbouring state.

Acts of destabilisation or subversion in the other party’s territory: Rwanda shares a list of rebels with a haven in Uganda. Extradition Treaty bilaterally signed by Ministries of Foreign Affairs. Uganda withdrew the passport from Charlotte Mukankusi[21][22] , who enjoyed a Ugandan Passport and free movement worldwide.

Resuming cross border activities between both countries, including a free movement of goods and persons, for the development and improvement of populations lives: Rwanda maintains that the free movement of goods and persons depends on whether Rwandans would be safe and secure on Uganda’s territory.

Protecting and respecting rights of freedoms for each other’s nationals: 24 Rwandans released from Uganda, 20 Ugandans released from Rwanda, three had served their sentences. The extradition Treaty partly addresses this. Rwanda shared a long list of Rwandans still languishing in Uganda’s illegal detention facilities.

Comprehensive cooperation in security, defence, trade and cultural exchange, investment, based on complementarity and synergies, depends on other issues presented above. It is the desired outcome.

At the end of the Summit, MFAs bilaterally signed an Extradition Treaty. It is a positive development; the countries would henceforth extradite any suspected criminal. However, the four negotiations did not assuage Rwanda’s concerns over three issues: Uganda’s support to rebel organisations, safety and security of its progeny, and aggressive campaigns against Rwanda in the mainstream and social media. Facilitators recommendations tasked Uganda to suppress hostile activities against Rwanda and observe the international law. Facilitators tasked Uganda to finish the homework within one month, report to the Adhoc commission, after which the state leaders would meet[23]. President Kagame commented that there could be as many lectures about integration as possible, but the integration of regions and communities would result from action and good faith.

The “Treaty”: Has It Made a Difference?

In a disclaimer, the “treaty” instrument is not publicly available at the UNTS, neither can it be seen in the lists of treaties of which Rwanda is a party. Nevertheless, the paper uses media content to outline its promises and achievements and analyses whether the agreement is a treaty in the meaning of art 2 of the VCLT.

What does the treaty promise?

When Kagame and Museveni met in Gatuna, there was more on the table than witnessing the signature of the extradition treaty. In the previous meeting, parties had noted the progress in drafting the extradition letter. There was also a host of other issues that Uganda had to report on: anti-Rwanda propaganda, supporting anti-Rwanda forces, and illegal arrest and arbitrary detention of Rwandans. The treaty, therefore, addresses only the last element in the list. The media captured the pictures of MFAs, Kutesa and Biruta, signing the treaty with the presence of their principals. The treaty, however, is not available in public domains. The Rwanda MFA website reports that the treaty requires both countries to extradite criminals from each other to face justice instead of deporting them. In practice, two States would communicate regarding criminals from each other arrested on each other’s territory and arrange for an exchange, which is good progress.

Achievements since the signature

Since the treaty signature, not much has taken place. The media reported sporadic events, including the following:

Uganda released 12 Rwandans after a teleconference meeting between MFAs in May 2020 whereby Minister Kutesa said that Uganda would release 130 Rwandans while another 310 will remain in Uganda to face charges in courts of law. Meanwhile, Rwanda laments that hundreds of more Rwandans are still detained in Uganda without due process of law while they undergo torture by security organs[24].

Rwanda released 20 Ugandans who were in its prisons after Rwandan courts convicted them of common law crimes. Three of them had finished their sentence.

Four men, one woman, and a one-year-old child were deported and dumped at the Ugandan border after undergoing torture in the Chieftancy of Military Intelligence (CMI) prison. They report they have been eating once a day. They had nails extracted[25].

Uganda released 79 Rwandans who were in Uganda’s detention facilities on allegations of infiltration and espionage. These are part of the 130 Rwandans that Uganda committed to releasing. Some of these report losing their property in an illegal process, such as houses and other personal belongings[26].

Ugandan military subjected Rwandans to beatings on allegations of spreading COVID-19. Their property was snatched away from them. They call upon the government to help Rwandans in Ugandan detention centres[27].

Uganda officials dropped a university student who was among 17 Rwandans at the Nyagatare border after being abducted by the CMI when visiting her parents in Uganda. She was jailed in a loo for one and a half weeks and tortured on allegations of espionage[28].

From these releases and deportations, the paper argues that there are still challenges of implementing the bilateral treaty on extradition and other issues highlighted (out of the treaty’s scope). The realist view best explains the Rwanda-Uganda relationship. All sovereign State needs and seeks power; it is what matters. Rwanda and Uganda are struggling for each one to have influence over regional matters in the region and protect its sovereignty and interests[29]. In other words, the realist view emphasises the role of the nation-state and assumes that all nation-states are motivated by national interests.

The 2020 Rwanda and Uganda Treaty: Is it a treaty by the meaning of art 2 of the 1969 VCLT?

Rwanda and Uganda concluded a bilateral agreement, each represented by the MFAs (article 102 of UN Charter). Minister Kutesa and Biruta had full powers to discharge their task[30]. Therefore, the two parties signed an international agreement[31]. One question remains: is the agreement signed in Gatuna is a treaty in the meaning of art 2 of the VCLT? A priori, the agreement is not a treaty. Here are the paper’s arguments:

First, by article 2 of the VCLT, by signing a treaty, parties intend to submit to international law, that is why they register the agreement with the UNSG, to avoid secret alliances. In this context, there is doubt about whether the agreement signed was indeed a treaty; to the best of available knowledge, Rwanda and Uganda did not register the document with the United Nations Treaty Series[32] probably because the obligations and rights of each party would cease as soon as the other party performs its side.

Second, a treaty creates a pacta sunt servanda expectation. In other words, such a treaty would be binding between the two States, and they would perform it in good faith[33]. In other words, once Rwanda and Uganda’s MFAs signed the agreement, they were expected to perform in good faith their obligations. However, the paper argues that there is no good faith between the parties. Their parties possibly signed the treaty to dodge horny issues. Assuming good faith, they would have considered other critical issues of the negotiations outlined since the Luanda Mini-Summit.

Third, any such agreement would abide by the principle of reciprocity. This principle requires that states return favours, benefits, penalties, and other forms of treatment that the state grants to legal subjects of a foreign state in kind[34]. Currently, Ugandans doing business in Rwanda or transiting through Rwanda enjoy their rights as nationals of the East African Community. There is a need for Uganda to do the same for Rwandan nationals transiting through Uganda or doing business in Uganda.

Fourth, the agreement was a treaty and duly registered with the UNSG, then Rwanda would have invoked it before the UN organs. More than one and a half years have elapsed since the facilitators asked Uganda to clean its obligations; not enough resulted from the agreement, and this without any repercussions,

Finally, and considering the four arguments, the agreement that Rwanda signed in Gatuna on February 21 2020, does not qualify to be called a treaty by the definition of article 2 of the VCLT because it does not have a legal force. The “treaty” cannot prevent further conflicts between Rwanda and Uganda; it only covers extradition, and it failed to carry this out. Other issues outlined in the Luanda agreement were left to the whims of Uganda to implement, and nothing followed Uganda’s inaction since February 2020.

SUMMARY *

The article’s argument develops in two stages. Historically, it shows that the Gatuna instrument was the residue of a much wider agenda: the Luanda Memorandum covered sovereignty, destabilisation, the treatment of each other’s nationals, the border and economic cooperation, and by the fourth round only one of these had produced a signed document. Legally, it argues that even that document does not meet the requirements of a treaty, on the grounds that it was not registered, has not been performed in good faith, does not operate reciprocally and has never been invoked. The two strands converge on a single conclusion: what was signed was the item on which agreement was easiest, and its signature substituted for the matters that had brought the parties to the table.

CONCLUSION

The paper reflects on the bilateral extradition “treaty” between Rwanda and Uganda signed sixteen months ago in Gatuna, Rwanda. The paper revisited the long term precursors to the conflict and the “treaty”. To date, relationships between Rwanda and Uganda have not improved. The situation paints a picture of a realist view. Both Rwanda and Uganda have been consolidating powers to protect their sovereignty and national interests, but there is a way to do that in a way that respects international law. After signing the bilateral agreement, they created an expectation of pacta sunt servanda; such a treaty would be binding between the two States, and they would perform it in good faith. Unfortunately, good faith has been lacking. The paper also underscores the need for reciprocity. Rwanda and Uganda should return favours, benefits, penalties, and other forms of treatment that the state grants to legal subjects of a foreign state in kind. In practice, Ugandans doing business in Rwanda or transiting through Rwanda enjoy their rights as nationals of the East African Community. There is a need for Uganda to do the same for Rwandan nationals transiting through Uganda or doing business in Uganda.

In a final reflection, such an agreement has failed to carry out the extradition which it had promised to carry out. It would be unrealistic to expect to tackle other contentious issues between the two East African States.

POTENTIAL SOLUTION *

The legal argument advanced here deserves one correction, and making it strengthens rather than weakens the author’s case. Under the Vienna Convention, an instrument is a treaty if it is concluded between states in written form and governed by international law; registration under Article 102 of the United Nations Charter affects whether it may be invoked before United Nations organs, not whether it is a treaty. Nor does breach deprive an instrument of legal character, since the law of treaties exists precisely to govern what follows from non performance. The Gatuna instrument therefore probably is a treaty, and the author’s complaint is better expressed as the observation that it is a treaty without consequences, which is the more damaging finding.

That reframing points to what the negotiation actually produced. Four rounds addressed five substantive issues and yielded agreement on the narrowest of them, and this is a recognisable pattern rather than a peculiarity of these two states. Where the hardest questions cannot be settled, delegations converge on whatever can be signed, and the signature is then reported as progress. What distinguishes a genuine confidence building step from a substitute for one is whether the easy agreement is embedded in a sequence: agreed benchmarks for what follows, dates, and consequences for non delivery. The facilitators set a one month deadline for Uganda; nothing attached to it, and nothing happened.

Verification is the element the parties themselves identified and then declined. Uganda proposed a joint verification mechanism and Rwanda answered that goodwill was what was required. That response is understandable and, in negotiation terms, a mistake. Where each side accuses the other of hosting hostile forces and neither can disprove the accusation, goodwill is precisely what cannot be established by assertion; a mechanism is what makes goodwill demonstrable. Refusing verification leaves both parties in a position where every subsequent round reduces to the same exchange of claims, which is what the article records.

Two matters raised here are, in principle, the most tractable and should not have waited for the political questions. Detention is a technical file: consular access, verified lists, independent visits, and a fixed procedure for those released, all of which can be agreed without conceding anything about the wider dispute. And the border affects traders, transporters and cross border communities who had no part in the quarrel; a phased reopening for defined categories, with monitoring, would deliver visible benefit to two populations and create a constituency for continued cooperation that no summit has produced.

Finally, the article’s account of individual cases deserves emphasis, and so does a caution about it. The detentions, the deportations at the border, the reports of torture and the child returned with the deportees are the reason this dispute matters beyond the two governments, and any settlement that treats such treatment as a bargaining chip has failed those it concerns. At the same time, the sources here are drawn almost entirely from one side, and the allegations run in both directions. That is exactly why independent verification serves both the truth and the process: findings established by a body neither party appointed are the only kind that either party can be expected to accept.

* Added by the WMO Editorial Team

REFERENCES

Bibliography

[Bibliography and endnotes 1 to 34 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Vienna Convention on the Law of Treaties, 1969, Articles 2, 11, 26 and 80, and Article 102 of the Charter of the United Nations.

Memorandum of Understanding between the Republic of Rwanda and the Republic of Uganda, signed at Luanda, 21 August 2019.

Treaty for the Establishment of the East African Community, 1999, and the Protocol on the Establishment of the East African Court of Justice.

Pact on Security, Stability and Development in the Great Lakes Region, ICGLR, Nairobi, 2006.

Reports of the United Nations Group of Experts on the Democratic Republic of the Congo, Security Council, New York.

International Convention for the Protection of All Persons from Enforced Disappearance, 2006, and the Convention against Torture, 1984.

Aust, A. (2013). Modern Treaty Law and Practice (3rd edition). Cambridge University Press, Cambridge.

The 2015 Paris Agreement on Climate Change: Towards a Better World?

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT *

This article traces the development of international climate agreements leading to the Paris Agreement of 2015 and assesses its prospects. The author follows the sequence from the establishment of the Intergovernmental Panel on Climate Change in 1988 through the Framework Convention of 1992 and the Kyoto Protocol of 1997, giving particular attention to the principle of common but differentiated responsibilities and to the disagreement it has generated between developed and developing states. The key provisions of the Paris Agreement are then set out across ten areas, from the temperature goal and nationally determined contributions to adaptation, loss and damage, finance and the global stocktake. Three challenges are examined: the alternation of United States policy according to the party of the incumbent president, the relationship between emissions reduction and economic growth, and the standing of the Agreement in international law given its hybrid of binding and non binding obligations. The author concludes that the Agreement’s innovations lie in its aspirational goals, its subtler form of differentiation and its information based approach to compliance, while its success depends on whether parties come to regard emissions reduction as good business.

KEYWORDS *

Paris Agreement, UNFCCC, Kyoto Protocol, common but differentiated responsibilities, nationally determined contributions, climate finance, loss and damage, customary international law, global stocktake, compliance, United States climate policy, economic impacts

INTRODUCTION

On 12th December 2015, parties to the United Nations Framework Convention on Climate Change (UNFCCC) achieved the 2015 Paris Agreement. They committed themselves to reinvigorate the global response to global warming by keeping a temperature rise this century below 20 Celsius above pre-industrial levels and limiting the temperature increase even further to 1.50Celsius. They also pledged to strengthen the ability of countries to deal with the impacts of climate change. To realise these ambitious goals, participants identified a need for appropriate financial flows, a new technology framework and an enhanced capacity-building framework, supporting action by developing countries and the most vulnerable countries, in line with their national objectives. However, it is a contentious ambition because of the relationship between emissions and economic growth. This paper explores the history of international legal efforts towards this Agreement, examines the objectives of the 2015 Paris Agreement. Finally, the paper reflects on hopes and challenges towards realising the objectives.

MAIN CORPUS

A Short History of International Climate Agreements

The 2015 Paris Agreement did not happen overnight. In 1988, World Meteorological Organization and the UN Environment Program established the Intergovernmental Panel on Climate Change (IPCC)[1] . They mandated it to supply scientific evidence on the current state of knowledge in global warming and its potential environmental and socio-economic impacts[2]. The panel has since produced the scientific evidence to support international climate negotiations[3] to avoid biases in decision-making.

After establishing the IPCC, the first negotiations began in December 1990 when the UN General Assembly established an intergovernmental committee to negotiate the framework convention on climate change, which led to the adoption of the UNFCCC in May 1992, in New York[4], intending to stabilise the atmospheric greenhouse gas concentrations at a level that would avert hazardous anthropogenic interference with the climate system[5]. In June 1992, the Convention opened for signatures at the Earth Summit in Rio de Janeiro, and, on the 21st of May 1994, the UNFCCC entered into force, with 197 countries having ratified it[6]. These countries are Parties to the Convention, and they meet annually at the COP to “negotiate multilateral responses to climate change[7].”

The UNFCCC embeds many principles, one of which has caused significant disagreement between developed and developing countries, stipulated in Article 3 (1)[8] and emphasises that developed States will take the lead. In 1992, developing countries, mainly in the Global South, worked together during the negotiations of the UNFCCC in order to include this principle, and this cooperation continued through numerous COPs meetings on topics such as financing, capacity building, and targets and timetables[9] to ensure that developed nations discharge their obligations. Unfortunately, the United States has dodged under the Republican Administration. The US complained that international climate agreements are unfair as they overburden developed nations[10].

The first COP took place in April 1995 in Berlin, under the leadership of Angela Merkel, who, at the time, was Germany’s environment minister[11]. The Parties agreed that the “commitments in the Convention were ‘inadequate’ for meeting Convention objectives[12]. As a result, a process that would negotiate more substantial commitments for developed countries, thus, paving the way for the Kyoto Protocol[13] Adopted on the 11th of December 1997 at the COP3; the Kyoto Protocol was the first global GHG emissions reduction treaty[14]. The Protocol entered into force in 2005 after the Russian Federation ratified it[15]. Whether the Kyoto Protocol was a success or a failure does not attract a consensus. Many argued that it was a failure as some of the largest GHG emitters like the United States and China did not participate. While others have argued that it was a success because some countries, such as Germany and New Zealand[16], did meet their targets and the Kyoto Protocol set a precedent for future negotiations such as the Paris Agreement. At the COP21 in Paris, on the 12th of December 2015, the Paris Agreement was adopted. It mobilised all States for a shared cause based on their historical, current and future responsibilities[17]. The Agreement aimed to reinvigorate the global response to the threat of climate change[18]. The Agreement has 195 signatories, and 175 Parties have ratified it[26]. The following section outlines the Agreement’s significant elements.

The 2015 Paris Agreement: What Are Its Key Elements?

The Agreement addresses ten critical areas necessary to combat climate change:

Temperature levels in a long-term horizon[27]: It seeks to strengthen the global response to global warming. It seeks to stop global temperature increase to well below 2 degrees Celsius while stopping the temperature rise to 1.50

Global peaking[28]: To achieve this set temperature goal, Parties have resolved to reach global peaking of greenhouse gas emissions as soon as possible, recognising peaking will take longer for developing country.

The 2015 Paris Agreement is a hybrid of binding and non-binding one. It establishes binding commitments by all Parties to prepare, communicate and maintain a nationally determined contribution (NDC) and to pursue domestic measures to achieve them, communicating NDC since 2023 and every five years[29]. However, it contains some nonbinding provisions. The realisation of a party of NDCs is not legally binding[30]. This nature makes it debatable as to whether the Agreement is binding at all.

Sinks and reservoirs[31]: The Agreement urges Parties to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases as referred to in Article 4, paragraph 1(d) of the Convention, including forests.

Market and non-market[32]: The Paris Agreement establishes a mechanism to contribute to the mitigation of greenhouse gas emissions, support sustainable development, and define a framework for non-market approaches to sustainable development.

Adaptation issues[33]: The Agreement establishes a global goal to significantly strengthen national adaptation efforts – enhancing adaptive capacity, strengthening resilience, and reducing vulnerability to climate change through support and international cooperation. It also recognises that adaptation is a global challenge faced by all. Therefore, all Parties should submit and update an adaptation communication periodically on their priorities, implementation and support needs, plans and actions. As a result, developing country Parties will receive enhanced support for adaptation actions.

Loss and damage issues[34]: The Agreement significantly enhances the Warsaw International Mechanism on Loss and Damage, which will develop approaches to help vulnerable countries cope with the adverse effects of climate change, including extreme weather events and slow-onset events such as sea-level rise. The Agreement now provides a framework for Parties to enhance understanding, action, and support regarding loss and damage.

International cooperation[35]: The Agreement underscores the obligations of developed countries to support the efforts of developing countries to build clean, climate-resilient futures, while for the first time encouraging voluntary contributions by other Parties. The provision of resources should also aim to achieve a balance between adaptation and mitigation. Accordingly, developed countries commit to submitting suggestive information on required financial or technical support every two years. The Agreement also provides for the Financial Mechanism of the Convention, including the Green Climate Fund (GCF), to serve the Agreement.

Transparency requirements[36]: The Agreement hinges upon a transparent accounting system to clarify action and support by Parties, with flexibility for their differing capabilities. In addition to reporting information on mitigation, adaptation and support, the Agreement requires that the information submitted by each Party undergoes international review. The Agreement also includes a mechanism that will facilitate implementation, promote compliance in a non-adversarial and nonpunitive manner, and report annually to the COP.

Global stock-taking considerations[37]: the global stocktake will take place in 2023 and every five years after that, to evaluate collective progress toward meeting the Agreement’s goals comprehensively and facilitatively

The 2015 Paris Agreement: Hopes and Challenges

Under this section, the paper reflects on the USA attitude towards climate change agreements, the 2015 Paris Agreement and economic gains, and the 2015 Paris Agreement and international law.

The USA Attitude towards Climate Change Agreements: Republican versus Democrat Presidents

Since the adoption of the Kyoto Protocol, there has been consistency in USA Presidents’ attitudes depending on their political Party’s affiliations regarding the Common But Differentiated Responsibilities (CBDR)[38]. Both Republican presidents argued that the agreements mistreated the US. Moreover, President Bush and Trump speeches argued that international climate change agreements are unfair to the US because the US had greater responsibilities than developing countries like China and India[39]. During campaigns, President Trump officially declared that the USA would withdraw from the Paris Climate Agreement[40], claiming that his priority of the well-being of Americans and that it was incompatible with an international agreement to regulate climate change.

In the same vein, Trump has been a strong critic of the previous administration’s climate change policy and has been public about his scepticism of global warming. The results of an investigation by the news and opinion website Vox concluded that between 2011 and 2015, Donald Trump had tweeted climate change denial 115 times[41], yet he also said that he would re-enter the Agreement under new terms that were fairer to the United States[42]. Eventually, political leaders all around the world did not like the news of the withdrawal. The most substantial criticism in Europe came from the leaders of France, Germany and Italy[43]. Canada’s Prime Ministers, Justin Trudeau and Enrique Peña Nieto in Mexico, strongly condemned the decision, each emphasising their own country’s continued commitment to the Agreement. It is consistent with the Republic Presidents Policy on climate change. In fact, in 2001, the United States withdrew from the Kyoto Protocol[45], the world’s first GHG emissions reduction treaty[46]. Christine Todd Whitman, the US Environmental Protection Agency administrator, declared that the Kyoto Protocol was dead, which angered Japan and US allies in Europe[47]. The USA signed the Kyoto Protocol in 1997 (Vice-President Al Gore signed), but they did not ratify it[48].

Meanwhile, the change in presidential administrations altered the US position, with the United States deciding not to pursue ratification and implementation of the Protocol[49]. As with the Paris Agreement, commitment to the Kyoto Protocol was entirely dependent upon the political convictions of the US President. The fact that the US presidents who took office immediately after the Parties had signed the agreements rejected both the Kyoto Protocol and the Paris Climate Agreement, Bush and Trump, means that national leadership on climate issues is inconsistent and unreliable.

This position has been different when USA Presidents came from the Democratic Party. Bill Clinton’s administration signed the Kyoto Protocol, and the Obama administration signed the Paris Climate Agreement. In comparison to Bush and Trump, these two Democratic presidents were not critical of the international system which regulated climate change agreements and legislation. Nevertheless, from the text of their speeches, it is possible to detect a change over time towards increasingly more robust support of international climate agreements. In Bill Clinton’s statement announcing the Kyoto Protocol, although he also lamented that developing countries had lower commitments than the United States, he was unequivocal that international commitments were a good and important step in the right direction and worth a commitment. In the same vein, when Joe Biden became President, he quickly ensured that the USA resumed their partisanship to the 2015 Paris Agreement[50]. However, this remains unpredictable: it is about the political party of the incumbent, not the United States.

The 2015 Paris Agreement and Economic Gains: An Incompatible Choice?

Before the Paris Agreement, the Kyoto Protocol served as the leading international climate agreement that set binding emission targets for advanced industrialised countries and the European Union. Adopted in 1997, the Protocol advanced the norm of ‘common but differentiated responsibilities, which compelled developed countries to cut GHG emissions, while economies in transition and developing countries did not have a treaty obligation[51]. As a result, these industrialised countries collectively committed to reducing GHG emissions by a global average of five per cent between 2009 and 2012, based on 1990 levels[52]. The Protocol primarily called on countries to reduce emissions domestically and provided parties flexibility in reaching these targets by allowing them to trade carbon credits through market-based mechanisms such as emission trading systems and joint implementation projects[53].

Researchers have reached an agreement regarding the relationship between reducing GHG and economic growth. First, under a scenario in which GHG emissions are doubled based on current levels, the loss to GDP is roughly equal to a year’s growth in the global economy[54]. These estimates suggest that the economic loss from climate change over a century may not be that large. However, the damage is not inconsequential. Since climate change may cause a permanent reduction of welfare, steps to reduce these causes would undoubtedly be justified[55]. Second, many of these estimates also highlight initial benefits for a modest increase in temperature, followed by substantial losses as temperatures continue to increase[56]. These initial benefits occur partly due to the global economy’s output concentration in temperate zones. Modest global warming can reduce heating costs, improve crop yields, and diminish cold-related health problems[57]. However, past a 1.1-degree Celsius increase in global average temperatures, these economic benefits could turn negative. Finally, while GHG emissions per capita are higher in developed countries, the economic impacts of climate change would be more significant for developing countries[58]. Since low-income countries tend to be near tropical areas close to the equator, agricultural output would suffer more from higher temperatures. Developing countries are also less likely to adapt to climate change due to a lack of resources and capable institutions[59].

The 2015 Paris Agreement and International Law

Global environmental challenges such as pollution, ozone depletion, global warming, and threatened wildlife because of two main reasons: an environmental problem from within a specific state has serious repercussions upon other states; chemicals from factories from the USA have effects on the quality of rains in Guatemala, located in thousands of miles away from the polluting event. Also, no single state can singlehandedly resolve environmental challenges successfully, which requires cooperation between polluting and polluted states. However, it is difficult to determine with accuracy from which state a particular environmental challenge has emanated[60], thus making it challenging to apportion “state responsibility” over its unlawful activities and bring it to account.

This spirit has been underpinning the international environmental regime, including the 2015 Paris Agreement. Unlike the Kyoto Protocol, the Paris Agreement was optimistic because of its essential features. Its aspirational goals to halt the increase in global temperature, with clear evaluation markers since 2023 and every other five years, which is likely to give teeth to the customary international environmental law in terms of its binding nature to the Member States and its effectiveness[61]. International customary law is assessed from the general acceptance by the participants, adherence for a sufficient duration; consistent understanding of the terms and stable enforcement; and a finding of Opinio Juris––evidence that the terms have the power of law[62]. The 2015 Paris Agreement is not likely to reach the general acceptance by all parties due to the hostility of some States such as Australia, Brazil and China, and the inconsistency of the USA. As such, it will be challenging to contribute to customary law.

In addition to the aspirational goals of the Paris Agreement, the subtle form of differentiation between nations is a feature that positions the pact for success. The differentiation is both inclusive and empowering to all participants[63]. The Agreement is facilitated by each state voluntarily committing to reduce its emissions reductions. All states commit to some emissions reduction, but no states are assigned a mandatory reductions target, as they were in Kyoto[64]. The third promising feature of the Paris Agreement is the innovative approach to oversight and enforcement. Compared to the Kyoto Protocol’s mandatory and legally binding emissions reductions, the Paris Agreement takes a less coercive, information-based approach[65]. In other words, the Paris Agreement hopes to use both official and unofficial sources of pressure in its information-based enforcement[66].

SUMMARY *

The article’s assessment rests on a trade the Paris Agreement made deliberately. Kyoto imposed binding targets on a limited group of states and secured neither their compliance nor the participation of the largest emitters. Paris abandoned mandatory targets in favour of contributions each state sets for itself, and thereby obtained near universal participation. What was gained is breadth; what was given up is enforceability. The author’s three challenges each test that trade: whether an agreement resting on voluntary commitment survives a change of government in a major economy, whether the economic case for reduction is strong enough to sustain commitment without compulsion, and whether an instrument of this character can acquire the standing in law that its architects hoped for.

CONCLUSION

This paper has explored the precursor to the 2015 Paris Agreement. It is an innovative continuation to Rio de Janeiro Earth Summit (1992), the coming into force for UNFCCC (1994) and the Kyoto Protocol (1997). All these agreements reflect the Common but Differentiated Responsibilities (CBDR). This principle recognises that developed members are the most contributing to climate change, and therefore should take the lead to reduce emissions. However, this principle has consistently angered the USA under the Republican presidency for its perceived unfairness.

The Agreement nevertheless faces some challenges. The 2015 Paris Agreement is partly binding, which makes it partly enforceable, and at the same time, giving each party some latitude to perform their obligations in line with national policies and interests. Briefly, implementation is largely whimsical. The Agreement also faces the hostility of soma parties such as China and Australia, and the unpredictability of the USA policy.

The Agreement also faces challenges related to its effects on economic growth. Drawing from the Kyoto Protocol, researchers have agreed that when GHG emissions are double, the consequent loss equals a year’s growth in the global economy. They also agreed that many of these estimates highlight initial benefits for a modest increase in temperature, followed by substantial losses as temperatures continue to increase. Although, modest global warming can reduce heating costs, improve crop yields, and diminish cold-related health problems. Past a 1.10 Celsius increase in global average temperatures, these economic benefits could turn negative. Finally, while GHG emissions per capita are higher in developed countries, the economic impacts of climate change would be more significant for developing countries. Since low-income countries tend to be near tropical areas close to the equator, agricultural output would suffer more from higher temperatures. Developing countries are also less likely to adapt to climate change due to a lack of resources and capable institutions.

Notwithstanding some challenges, the Paris Agreement was an innovation because of its aspirational goals to halt the increase in global temperature, with clear evaluation markers since 2023 and every other five years, which is likely to give teeth to the customary international. It is also innovative because the subtle form of differentiation between nations is a feature that positions the pact for success. The differentiation is both inclusive and empowering to all participants. Furthermore, the Agreement is an innovative approach to oversight and enforcement. Compared to the Kyoto Protocol’s mandatory and legally binding emissions reductions, the Paris Agreement takes a less coercive, information-based approach. Finally, the Agreement fits into a broader setting decided in 2015, and the Agenda 2030 (Sustainable Development Goals – SDGs).

In a final reflection, however, the Agreement’s success will depend on a host of factors. Its success hinges upon the conviction of party members that it is good business to reduce global warming, in line with SDGs. It also depends on whether it will stimulate long-term economic and political changes for the parties to the UNFCCC by investing increasingly into renewables rather than fossil fuels or climate finance increasing the willingness to improve transparency in climate protection and national policies.

POTENTIAL SOLUTION *

Climate negotiation is the largest continuous multiparty process in existence, and it is worth reading through the lens this journal applies to smaller conflicts, because the design choices the author describes are recognisable ones.

The move from Kyoto to Paris is a textbook instance of a negotiator’s dilemma. Binding obligations imposed on parties who will not accept them produce either non ratification or withdrawal, and Kyoto suffered both. Paris resolved the impasse by allowing each party to set its own contribution, which is precisely what mediation practice recommends where imposed terms would be rejected: parties comply with what they authored. The cost is equally familiar, since self set commitments are set at a level the party finds comfortable, and the aggregate has consistently fallen short of the temperature goal. Neither approach is simply superior; what the sequence demonstrates is that an agreement no one signs achieves nothing, and an agreement everyone signs achieves only what its signatories intended.

The compliance mechanism deserves particular attention because it is unusual. A facilitative, non punitive and non adversarial body is what mediators would design, and its effectiveness depends entirely on transparency: the enhanced transparency framework, technical expert review and the global stocktake work by making performance visible and comparable, on the assumption that states dislike being seen to fall short. That assumption is plausible and untested at scale, and it is the single most interesting experiment running in international law.

The differentiation question the author identifies as the recurring source of conflict is, in negotiation terms, a dispute about fairness criteria, and the pattern is familiar to anyone who has mediated a distributive dispute. Developing states apply historical responsibility; industrialised states apply current and projected emissions; neither criterion is unreasonable and each favours its proponent. Where parties disagree about which standard should govern, agreeing the standard before applying it is generally more productive than arguing outcomes, and the Paris formulation, common but differentiated responsibilities in the light of national circumstances, is an attempt at exactly that. Its ambiguity is deliberate and it is what allowed agreement.

Two elements of the framework are worth flagging as the ones where the process will be tested. Finance is the currency in which trust is measured here: the commitment to mobilise substantial sums annually has been the subject of persistent dispute about whether it was met, and unmet financial pledges have consistently soured the negotiations that follow. And loss and damage, which the author records as strengthened at Paris, has since become the sharpest question in the process, because it touches responsibility for harm already caused rather than obligations going forward. Anyone familiar with mediation will recognise that as the point where a process moves from arranging the future to reckoning with the past, which is always where agreements are hardest.

Finally, a word on the article’s own conclusion, which places the Agreement’s prospects on whether parties come to see emissions reduction as good business. That is a durable observation, and it points to where the process may already be working. An instrument that cannot compel can still change expectations, and expectations shape investment. Where capital moves because a direction of travel has been established, the compliance question becomes less decisive than it appears. Whether that is happening fast enough is a different matter, and the stocktake the author describes exists precisely to answer it.

* Added by the WMO Editorial Team

REFERENCES

Bibliography

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UNFCCC. “Paris Agreement – Status of Ratification.” Accessed June 12, 2021. https://unfccc.int/process/the-paris-agreement/status-of-ratification.

———. “UNFCCC – 25 Years of Effort and Achievement Key Milestones in the Evolution of International Climate Policy.” Accessed June 11, 2021. https://unfccc.int/timeline/.

———. “What Is the United Nations Framework Convention on Climate Change?” United Nationals Framework Convention on Climate Change. Accessed June 11, 2021. https://unfccc.int/process/the-convention/what-is-the-unitednations- framework-convention-on-climate-change.

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———. “United Nations Framework Convention on Climate Change,” 1992.

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[Endnotes 1 to 66 as in the original manuscript]

Supplementary references added by the WMO Editorial Team

Paris Agreement, Decision 1/CP.21, and the Katowice Climate Package, Decision 18/CMA.1 on the enhanced transparency framework, 2018.

Glasgow Climate Pact, Decision 1/CMA.3, 2021, and Decision 2/CMA.4 (2022) establishing the loss and damage fund.

United Nations Environment Programme, Emissions Gap Report, annual editions, Nairobi.

Intergovernmental Panel on Climate Change, Sixth Assessment Report, Geneva, 2021 to 2023.

Bodansky, D., Brunnée, J., & Rajamani, L. (2017). International Climate Change Law. Oxford University Press, Oxford.

Falkner, R. (2016). The Paris Agreement and the New Logic of International Climate Politics. International Affairs, 92(5), 1107 to 1125.

Susskind, L. E. (1994). Environmental Diplomacy: Negotiating More Effective Global Agreements. Oxford University Press, New York.

Mending a broken friendship: Can mediation help end enmity between Rwanda and Uganda?

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

EDITORIAL NOTE *

The author of this article works at the United Nations High Commissioner for Refugees and states that the views expressed here are not a reflection of the official position, past, present or future, of the United Nations or of UNHCR.

ABSTRACT *

This article asks whether mediation can resolve the conflict between Rwanda and Uganda, and proceeds through four questions: whether a conflict exists, what its root causes are, what has been attempted, and whether mediation could make a difference. After setting out economic and demographic data and the shared history of the two states, including the long presence of Banyarwanda communities in Uganda and the alliance between the two leaderships before their estrangement, the author examines the mutual accusations of harbouring hostile forces, the detentions, the border closure and its economic consequences. The conflict resolution efforts of 2019 and 2020, conducted under the auspices of the International Conference on the Great Lakes Region, are then reviewed and found to have addressed symptoms rather than causes. The author assesses the East African Community, the regional conference, civil society organisations and the African Union as potential mediators, concludes that none possesses the required leverage, and proposes instead a mediator drawn from the donor states on which both parties depend. The assessments reflect the author’s own perspective; this journal’s editorial position is neutral as between the states concerned.

KEYWORDS *

Rwanda, Uganda, Great Lakes region, mediation, East African Community, ICGLR, African Union, border closure, leverage, mediator status, Luanda Memorandum, regional integration

INTRODUCTION

In this paper, I explore whether mediation can help end a conflict between Rwanda and Uganda. I reflect on four questions: Is there a conflict between Rwanda and Uganda? What might be the root causes of the conflict? What efforts have been deployed to resolve it? Can mediation make a difference? For a systematic reflection, the paper has four sections: the context, the conflict, the efforts, and solutions. I conclude that peaceful co-existence between Rwanda and Uganda is possible, and mediation can contribute. I, however, argue that there are some requirements for mediation to work; there is a need for the right mediator, with a different calibre and tools for facilitation. I finally submit that regional peace and security are possible but caution that the East African Community and the African Union and their institutional arrangements can make better investments in prevention rather than resolving conflicts between and among member states.

MAIN CORPUS

The Conflict Context

In this section, I outline primary economic and demographic data. I also review the history of the two states and outline elements of friendship between the neighbouring countries.

Rwanda is a small country with a territory of 26,338 square kilometres. Some literature refers to Rwanda as un pays des mille collines, a country of a thousand hills, after her mountains and rivers that meander through them before they fill lakes spread across the country. With a subtropical climate, she has one of the highest population densities in Africa, 525 per square kilometre[1], and is home to approximately 12,950,000[2]. Rwanda borders: Uganda in the North, Tanzania in the East, the Democratic Republic of Congo in the West, and Burundi in the South. Rwanda’s economy is overwhelmingly rural and heavily dependent on agriculture[3]: agriculture (24.07 percent), the industry contributed (18 percent), and the services sector (49.27 percent)[4]. Rwanda depends on much of its imports on a trade route through the Northern Corridor (Uganda to Kenya’s Indian Ocean port of Mombasa)[5]. Uganda is located between Kenya in the west, South Sudan in the north, the west of the DRC -the Democratic Republic of the Congo, and north of Rwanda and Tanzania. Uganda is home to around 45,741,007 people[6], with a population density of 229 per square kilometre. Uganda’s economy depends on agriculture (24.2 percent), industry (25.5 percent), and services (50.3 percent)[7]. The two neighbours have historically depended on each other economically through imports/exports.

The two countries do not have the same colonisation history; Rwanda was colonised by Germany in 1884 and put under the Belgian protectorate in 1916 (after German had lost World War I). The colonial rule-governed in a manner that made the two main social classes (Tutsi and Hutu) enemies. It led to the so-called 1959 Revolution and the independence in 1962, favouring the Hutu and against the Tutsi, the majority of whom were forced to seek asylum in neighbouring countries, Uganda inclusive. Inside the country, ethnic competition culminated in the 1994 genocide committed against the Tutsi, which left Rwanda’s economy and social fabric in ashes[8]. In 1894. Uganda becomes a protectorate of the British Empire; became independent from the United Kingdom in 1962. In the aftermath of its independence, Idi Amin overthrew Milton Obote in 1971, and Obote was overthrown in 1979. Museveni was a chief of the rebellion that toppled Ugandan leaders Idi Amin (1971–79) and Milton Obote (1980–85) before becoming president in 1986[9].

Despite the difference in colonial heritage, Rwanda and Uganda had had relations since centuries ago when Banyarwanda immigrated in Uganda, as labourers pushed by the poor living conditions in the Belgian colonies and pulled by compounded effects of religion-inflected civil wars in Buganda, the wars of conquest in the East and North, and the collapse of pre-colonial medicine, along with the interruption of agriculture, which claimed lots of active lives. It contributed because the British needed more labour to help grow the cash crops[10]. The Banyarwanda adopted new identities and names to integrate better[11]. Also, ethnic-based conflicts between the Hutu and Tutsi, engineered by the Belgian colonisers, led to massive outfluxes to neighbouring countries, including Uganda, after the so-called 1959 Revolution[12]. One factor that goes silent is the effect of new borders imposed after the Berlin Conference (15 November 1884 – 26 February 1885). Driven by their desire to regulate colonisation and trade in Africa, the European imperial powers drew geometrical borders without considering social affinities on either side. As a result, the people of Rwandan descent found themselves at the other side of the border of all countries neighbouring Rwanda. Therefore, some Banyarwanda found themselves on the other side of the border. It is not surprising that the Constitution of Uganda mentioning Banyarwanda as their 24th indigenous community as of 1 February 1926 (see article 10 (a)).

Above, I hinted that some Rwandans sought asylum in Uganda due to the so-called 1959 Revolution and subsequent years. Faced with the hardships of refugeehood, they negotiated a peaceful return. In response, the then Rwandan government denied most of them a right to citizenship, while she imposed extreme conditions to those whose citizenship was accepted; returnees were not allowed to claim their properties. They would return after proving that they could sustain themselves. These sufferings played in favour of a young Yoweri Museveni; he recruited most of them in the rebellion, including Paul Kagame, and launched a war (1981 – 1986) to seize Uganda’s presidency[13]. After seizing power in 1986, Museveni worked with Rwandan refugees, including Kagame, who worked as his chief of military intelligence. In 1994, Museveni supported the liberation war against Kigali, with Kagame as the Commander to end the 1994 Rwandan genocide. Kagame and Museveni then battled on the same side during the First Congo War in 1996, helping to oust the dictator Mobutu Sese Seko and backing his rival, Laurent Kabila.[14] The two countries are members of the East African Community (EAC) and members of the Commonwealth.

The Conflict: Factors and Actors

Under this section, I review the old alliance, possible factors for breaking the alliance, and interests pursued by each of these countries.

3.1. NRA and RPA fighting a common enemy

Back in history, Rwandan refugees in Uganda fought alongside the current president Museveni as members of the NRA, with Rwandan soldiers estimated at more than a third of the forces. However, their comrades from various ethnic backgrounds did not like the Banyarwanda. Similarly, Museveni, who seemed to appreciate their services, was also labeled a Munyarwanda[15]. Simultaneously, Museveni had an uphill task of convincing President Habyarimana of Rwanda that no enemy would launch an attack from the Uganda territory. In his three-day state visit, he was recorded explaining that while he would not mind if he were Rwandan, it was a point of the fact that there was no blood in his lineage[16]. However, it is also a point of the fact that the Rwandan Patriotic Army (RPA), a military wing of the Rwanda Patriotic Front (RPF), launched an attack from the soil of Uganda, reportedly against Museveni’s knowledge[17]. In any case, the role of Banyarwanda communities in Ugandan national politics has been remarkable, yet Banyarwanda has been scapegoats for Ugandan ills whenever tensions with Rwanda arose[18].

3.2. RPA and NRA pursuing their security agenda beyond their borders

After the liberation war, Rwanda and Uganda were allies in DRC when each country pursued rebels from its country, Rwanda pursuing the ex-FAR and Interahamwe, Uganda hunting its rebels. The countries also had a joint plan to overthrow Zaire’s Mobutu. Surprisingly, Rwanda and Uganda became enemies during the Second Congo War. In Kisangani, two forces fought when the Rwandan army refused to obey orders from their fellow Ugandan military officers[19]. Reportedly, many Ugandan officials refer sarcastically to their RPA former comrades as “juniors” and “boys” to underscore the fact that Museveni was once their Commander in Chief. It was an extension of Museveni’s attitude towards deciding what the post-genocide Rwanda should have been, rejected by Rwandans[20]. Since then, while the conflict did not escalate into further violence, the current relations show that mediation efforts did not attend to root causes[21].

3.3. Uganda allegedly supports Rwandan enemies

Despite this shared history, the United Nations Group of Experts report suggests that Uganda and other countries trained and armed the Rwandan opposition groups “Platform Five – P5” [22]. Kayumba Nyamwasa[23] is at the head of this platform that seeks to overthrow the ruling Rwanda Patriotic Front (RPF)[24]; their elements carried out incursions in 2018 (July and December), April 2019 into Rwanda’s territory and claimed lives of civilians. Some rebel commanders were pursued and captured and are facing trial in Rwanda[25]. Reportedly, Kampala distrustful about Rwanda’s connections with its security organs; Uganda has been reshuffling its security apparatus to ensure that Kigali allies are checked[26]. Besides, in 2019, Uganda claimed that Rwandan elements entered the territory and killed civilians, a claim refuted by Rwanda, saying that it was pursuing a group of smugglers[27]. At the same time, Rwanda accuses Uganda of abducting, illegally detaining, and torturing some Rwandans on Uganda’s territory, which prompted Rwanda’s travel advisory against going to Uganda[28].

Amidst these accusations and counteraccusations, the conflict escalated. Rwanda accuses Uganda of stopping Rwandan trucks from proceeding to Mombasa Port. Business contracted on both sides, resulting in heavy financial losses, without a sufficient explanation. It led Rwanda to seek an alternative export destination[29]. In the same competition, Uganda accused Rwanda of blocking cargos from Uganda and stopping its nationals from crossing into Uganda[30], allegations refuted by replicating that there were renovation works at Gatuna / Katuna border, which resulted in redirecting the trucks to Gatuna / Katuna border, located in 100 km from the Gatuna / Katuna border[31]. These unhealthy relationships have had economic consequences; Uganda has lost more than USD300m in exports to Rwanda[32], Rwanda has lost about USD 19m per annum in exports to Uganda[33]. Also, small-scale traders and labourers on both sides were negatively affected. Despite efforts to mediate these differences, the relationships have not improved; efforts did not address the root causes of the conflict. There is a need for constructive conflict management to harness its energy for creativity and development.

Each of the countries has interests. Rwanda has economic and national security interests involved, though it may be challenging to disentangle these; Rwanda is landlocked; she uses the Northern Transport Corridor to reach the Indian Ocean via Uganda and Kenya (which is 1,800km long). This Corridor also serves Burundi, DRC, and South Sudan. Alternatively, she uses the Central Corridor via Tanzania (1,400 km long from Rwanda and about 1,500 km from Burundi). Considering that Rwanda trades much in commodities (coffee and tea) and imports more than she exports if Rwanda cannot export through Uganda, this means much losses.

Similarly, it seems that the cause of the conflict is rooted in protecting sovereignty; Rwanda does not want to be given instructions by Uganda. She wants to engage in mutually good bilateral relations. In my understanding, President Kagame insinuated this when he commented that no one could put him on his knees. When it comes to security, however, Rwanda seems to be determined to forego economic interests. However, this may not be a viable option in the long run.

Similarly, Uganda seems to chase her dream of exerting her influence on regional affairs. Like Rwanda, she has security interests and imminent threats from rebel movements in DRC, including ADF, and the Lord’s Resistance Army (LRA), which operates in northern Uganda, South Sudan, the Central African Republic (CAR), and the DRC. The state does therefore have an interest in ensuring its security is tight. The country also has economic interests. She used to export large volumes of products to Rwanda. Besides, Uganda enjoys a geographical location that can influence the flow of commodities in and from Rwanda. Rwanda has expressed her concerns over sabotaging trade by frustrating goods transiting through Uganda and destined for Rwanda, which eventually occasioned losses.

Conflict Resolution Efforts

Amidst the reported tensions, accusations, and counteraccusations, the following conflict resolution efforts:

On 21 August 2019, Kagame and Museveni met in Luanda and signed a Memorandum of Understanding (MoU) to restore relationships. Presidents of Angola Joao Lourenco (President of Angola), President Felix Tshisekedi (Democratic Republic of Congo), and Denis Sassou Nguesso (Congo – Brazza), under the auspices of the International Conference on the Great Lakes Region)[34], witnessed the ceremony. In a press release, the UN Secretary-General saluted the efforts, urging neighbours to restore friendly ties and cooperation for regional stability[35]. The two presidents committed to respecting each other’s sovereignty and that of the neighbouring countries. They also undertook to desist from financing and training each other’s hostile forces. They finally agreed to uphold the rights and freedoms of their citizens residing or transiting, continue cross-border arrangements, including the movement of persons and goods, as soon as possible[36] to avoid unnecessary hardships for their citizens.

On 17 September 2019, building on the MoU signed in Angola one month previously, the Adhoc commission met in Kigali, Rwanda, to defuse tensions. The Rwandan Minister of State of Foreign Affairs underscored the long history between the two countries as a factor that would make the process smooth towards restored relations. Kigali voiced her concerns about cases involving Rwandans, whom it says have been illegally detained or tortured on Ugandan soil. She also voiced Uganda’s hosting and supporting terror groups aimed at destabilising the government in Kigali[37]. Kigali provided a list of Rwandans detained in Uganda and Kampala committed to verify the information to ensure due process[38]. Regarding the allegations related to supporting the anti- Rwanda forces, Minister Kutesa commented that Uganda benefits nothing in destabilising Rwanda, just like Rwanda benefits nothing in destabilising Uganda. Manuel Domingos Augusto, the Angolan Minister of External Relations), in attendance, voiced his optimism, saying it testifies how African countries can work together to resolve their issues[39].

On 13 December 2019, the Adhoc committee met after three postponements. The delegations included Foreign Ministers, Internal Affairs Ministers, Intelligence Chiefs, and High Commissioners. It seems that Rwanda and Uganda do not outline all issues, such as Uganda’s sabotage of the railway project that would eventually have reached Rwanda’s border, which would have made a difference in the economy of Rwanda. However, the talks reached another deadlock[40].

On 21 February 2020, Presidents Paul Kagame and Yoweri Museveni, with mediation from Angola’s João Lourenço and DR Congo’s Felix Tshisekedi, held their summit at the Gatuna border. The only summit’s output was a bilateral signature for the Extradition Treaty by Ministers of Foreign Affairs. From that on, any suspected criminal in either country would not be deported but extradited. The parties did not address other substantive matters. After the summit, the ball was put solely back on the Ugandan side. Uganda had to first deal with the dissidents and rebel forces on its territory fighting Rwanda and ensuring respect for international human rights and international humanitarian laws. Facilitators asked Uganda to finish the homework within a one-month deadline, report to the Adhoc commission, after which the state leaders would meet[41]. Since then, maybe the COVID-19 contributed. Neither effort nor follow-up action has been publicly recorded.

Meanwhile, many Rwandans are still languishing in unofficial detention facilities. Politicians have vilified each other, officials attending meetings have only vacillated around real issues. The situation begs the question: Can peace and cooperation supplant the current enmity?

The Solution: Can Mediation Contribute?

Above, I have elucidated the history of Rwanda – Uganda relationships, conflict dynamics, mediation efforts, and an evaluation of these efforts. Rwanda and Uganda have lost a chance to solve the deadlock amicably, and a dissonance remains in their relationship. The question remains: Are these differences irremediable? Below, I evaluate the propriety of mediation, technical modalities of conducting a successful mediation, and a proposal for the right mediator.

5.1. Why would mediation be appropriate?

The dynamics of international mediation are fascinating. Conflict is endemic to the anarchical international system that consists of many sovereign states competing to realise their respective national interests. I, therefore, suggest that it is normal that Uganda and Rwanda as sovereign states engage in conflicts. The competition may not result in military confrontation if the competition happens within conventional diplomacy, and mediation implies the restoration of some sort of power balance. It is also important to mention that major powers are the most likely candidates for a mediator role. They tend to intervene in a conflict to advance their national interests and/or to act as safeguards to the stability of the international system. In the same vein, the parties in conflict are most likely to accept mediation when it will help them reach a better solution than they can achieve on their own (do not want to risk relations with the mediator by declining his initiative, for example). Finally, mediators can assist parties in a variety of ways in settling, but, ultimately, mediation success is determined in large measure by the combination of the resources available to them and the skill with which they use these[42].

I argue that mediation has the potential for resolving the impasse between Rwanda and Uganda. It facilitates a process towards a peaceful resolution with the support of an impartial mediator. The parties, rather than the mediator, decide the terms of the settlement[43]. The situation requires an approach in which no one feels that they have ‘lost. In other words, Rwanda and Uganda need to come to an ‘agreement’ or ‘settlement’. They need to find a ‘win-win’ outcome. Mediation would help Rwanda and Uganda feel that they are being treated equally, as indeed they are under the UN Charter. In this process, the mediator is responsible for the process and no vested interest in the outcome[44].

5.2. Technical issues in mediation

First, mediators should focus on generating trust[45]. Rwanda and Uganda live in a distrustful situation. During all efforts, Uganda reportedly used devious strategies towards solving the conflict; commitments taken have never been addressed. The mediator should help the parties see the possibility of communication with each other, encouraging them to believe that a way forward can be found. The mediator must also reframe the conflict by undertaking a process of changing the way a conflict is presented so that it maintains its fundamental meaning but is more likely to support resolution efforts. To help reframe the conflict as a common problem. They equally help observe the ground rules. To assist in creating an atmosphere in which emotions can safely be expressed but also managed. Exercising, when necessary, the authority they have been given by both sides to maintain an agreed process[46]. They clarify issues and options. To assist in the clarification of issues and options, encouraging both sides to be clear about their real concerns; shift focus from past to present: To help shift attention from the past to the present and future; and encourage creative solutions: To encourage imagination and evaluation with options, what they need and what they can offer[47].

5.3. Who can mediate this conflict?

The attributes of the mediator have a huge bearing on the success of the mediation efforts. The paper outlines three of them: (a) (im)partiality, (b) leverage, and (c) status. These characteristics usually determine the acceptability of belligerents and the success of the mediator[48]. I have listed potential candidates for the mediation, including the East African Community (EAC), Non-Government Organisations (NGOs), / the Civil Society Organisations (CSOs) in the EAC, International Conference of the Great Lakes Region (ICGLR), and the African Union (AU). By their missions, these organisations should be interested in the conflict and should be impartial. The mediator should be impartial and be seen to be impartial. They should have reliable leverage – the ability to put pressure on one or both conflicting parties to accept a proposed settlement. It assumes a mediator has power and influence resources that can be brought to bear on the parties. Nevertheless, it is not clear which resources are crucial between carrots and sticks, the possibility of withholding or supplying economic aid and moral or psychological pressure, and reliable status – personal reputation, track records, and from organisational factors. Two such organisational components of mediator status are distinguished in the literature: institutional ( the identity of a mediator’s constituency as an individual, government representative, representative of an NGO, or UN Special Envoy); and positional status (standing within his own country or organisation, such as a strong internal position to commit his government or executive to back up the things he says or does[49].

First, the EAC brings together Burundi, Kenya, Rwanda, Uganda, and the United Republic of Tanzania. South Sudan is the newest member. Somalia and DRC applied for membership. This organisation chases a mission to widen and deepen economic, political, social, and cultural integration to advance the standard of living for the people of East Africa through increased competitiveness, value-added production, trade, and investments[50]. The EAC, therefore, has an interest, individually at the state level and collectively at the community level, to ensure peace and security as a prerequisite to its mission. Peace and security are prerequisites to the common market, common currency, and political integration. This organisation could mediate the situation if members had a unity of purpose and had the right leverage. EAC does not seem to have a muscle to mediate the conflict. First, there are issues between some member states; for example, Rwanda accuses Burundi of harbouring the militia that attacked the southern province and vanished into Burundi, leaving behind enough evidence to link them to Burundi (including uniforms, weapons, and prisoners). Burundi has also been accusing Rwanda of not extraditing fugitives suspected of their criminal responsibility in the attempted coup d’état against late president Nkurunziza.

Moreover, the experience of Burundi in 2015 does not inspire my confidence in the bodies. After the election-related violence claimed the lives of some citizens and drove thousands out to exile, these bodies could have done better. Beyond Rwanda and Burundi, we have Uganda involved in the current conflict, and so we would remain with Tanzania and Kenya to mediate this issue. I am a bit pessimistic about whether these states have the willingness and sufficient impartiality to mediate the situation at hand. Regrettably, I argue that if the EAC cannot solve this deadlock, it will eventually exist as a monument, making it impossible to achieve the regional integration dream.

Second, the ICGLR is composed of twelve member states: Rwanda, Burundi, Angola, Burundi, Central African Republic, Republic of Congo, Uganda, Democratic Republic of Congo, Kenya, Republic of South Sudan, Sudan, Tanzania, and Zambia. It coordinates, facilitates, monitors, and ensures the implementation of the pact to reach political stability, security, peace, and development in the region of the Great Lakes[51]. Tshisekedi and Lourenço are peerless concerning this challenge. They have indefatigably sought repaired relations, but the situation is ponderous; issues at hand are complex and can only be resolved if one party is willing. From the reading of the past, I argue that ICGLR does not have the proper leverage; the last time the summit convened in Gatuna, facilitators proposed a deadline and assignment to Uganda, nothing has been done ICGLR did not do anything.

Third, CSOs in the EAC include political parties, professional organisations, labour unions, and religious institutions). These represent the populace or represent them in governance, legal, economic, and social structures; maintain communal structures, and avail humanitarian aid[52]. They are interested in ensuring security, bilateral and multilateral relationships as a prerequisite to human development. There is an opulence of CSOs across East African countries. There is also an East African Civil Society Organisations Forum (EACSOF), an autonomous umbrella body of NGOs and CSOs in East Africa. This organisation exists to ensure citizen-centred policy processes at national and regional levels towards, among other, peace and security, democratic governance, social and economic justice. The people of Rwanda and Uganda are hungry for stability and peaceful co-existence. Lack thereof affects their livelihoods. Unfortunately, they did not see this organisation challenge heads of states to step forward and solve the issues. Even if CSOs stepped forward, I fear they would not have a conducive environment and leverage to facilitate these issues.

Fourth, the African Union should be interested: The organisation chases an integrated, prosperous, and peaceful Africa, driven by its citizens and on behalf of a dynamic force in the global arena. It has an interest in peace and security between neighbouring countries and different regions of the African continent. After Kagame and Museveni signed the MoU in Luanda, the AU Commission chairperson, Moussa Faki Mahamat, commended the effort and urged them to improve the economic and political relationships. This statement was not followed up with anything to ensure that parties heed this admonition. Respecting international laws of which a state is a party is not whimsical; the people of Rwanda and Uganda deserve a better climate.

Regrettably, it looks all organisations mandated to do this job are diffident; they do not come forward to support the process. I have almost exhausted mediation resources within the continent. I do not intend to disparage these stakeholders, but I suggest they can do much better.

Before I exhaust remedies, I am submitting another venue. Rwanda and Uganda are members of the Commonwealth. They also interact with international development organisations (IDOs) such as the United States Agency for International Development (USAID), British Department for International Development (DFID), and alike. In the past, such conflict resolution was facilitated by Clare Short, the former Secretary of State for International Development. She had done a good job because Kagame and Museveni perceived her to be impartial, she had leverage- carrots and sticks to convince both presidents to heed her counsel in terms of her influence over UK’s funding to both countries, and status – reputation and position in a donor country, the UK. I must, however, say that her efforts missed one thing: establishing the root causes, uprooting them, and facilitating parties to burn them.

Nevertheless, there is a need for such mediators. If interested in the situation, they can be guarantors of a peace settlement. These have effective carrots and sticks to ethically motivate Rwanda and Uganda to refrain from actions conducive to destabilisation of the other party through training, financing, and infiltration of hostile forces. These incentives, in my opinion, are strong enough to encourage them to respect and protect the rights and freedoms of Ugandans and Rwandans living or transiting and to recommence their cross-border movements, including the movement of persons and goods as soon as possible[53].

SUMMARY *

The article’s assessment of the mediation efforts identifies a consistent pattern. Each initiative produced a document, the Luanda Memorandum and later the extradition treaty, and each left the substantive grievances untouched: the detentions, the alleged support for hostile forces, the closure of the border. Deadlines were set without consequence for missing them, commissions met and adjourned, and the process lapsed without formal conclusion. From this the author derives the criterion by which he assesses the candidate mediators, which is not goodwill or standing but leverage, understood as the capacity to make non compliance costly, and finds it absent in every regional institution he examines.

CONCLUSION

I analysed and explored the conflict between Rwanda and Uganda. It also explored possibilities for mediation. The neighbouring states share borders and a history of hospitality, but mostly Banyarwanda is Uganda. Some Banyarwanda became “Ugandans” due to the scrambling of Africa, and others went to Uganda as immigrants or refugees. Banyarwanda participated in the change of politics in Uganda. Uganda also contributed to the change of politics in Rwanda. Under the auspices of ICGLR, the Presidents of Angola and DRC paved the way for two states Presidents and commissions to go past the deadlock in vain.

In this paper, I submitted that both states have interests, economic and security. Nevertheless, Rwanda and Uganda can best protect their interests by engaging in a mutually beneficial relationship. I observed that ICGLR, East African Community, and the African Union may not help reconcile these countries because they have no record of the unity of purpose, carrots, and sticks to encourage member states to abide by principles and provisions of international law. If interested and willing, donor states or their development aid organisations can appoint a sagacious mediator to help these states talk and deliver their homework; both states still depend on external development aid, and if used ethically, sticks and carrots can motivate them to go past the deadlock.

POTENTIAL SOLUTION *

The author’s diagnosis of the regional institutions is persuasive and his proposed remedy carries a difficulty worth examining, because the difficulty points toward a better version of the same idea.

Leverage exercised by donor states is real, and the precedent he cites demonstrates it. Its limitation is that it produces compliance rather than settlement. A party that halts a practice because aid is threatened resumes it when the threat passes, and the underlying grievance is untouched. Aid conditionality is also blunt, since the populations it reaches are not the ones making the decisions, and it carries a political cost in both capitals precisely because it comes from outside the continent. The stronger formulation is therefore not external mediation but external guarantee: a regional or African facilitator conducts the process, while donor states underwrite whatever is agreed, funding the verification, financing the corridor and border infrastructure, and attaching consequences to non implementation. That combination gives the process legitimacy and gives it teeth.

Verification is the missing component in every effort the article describes, and it is more achievable than the political questions. Both parties accuse the other of hosting hostile forces and neither can disprove the accusation, which is why each round of talks reduces to assertion. A joint verification mechanism with independent membership, genuine access to the border areas, and published findings would establish what is actually happening, and comparable mechanisms have functioned in this region before. The detentions the article raises are similarly amenable to a technical solution: consular access, verified lists, and independent visits are matters on which agreement is possible without either government conceding anything about the wider dispute.

The economic dimension offers the most immediate opening. The border closure harmed both economies and, more to the point, harmed the traders, transporters and cross border communities who had no part in the quarrel. Reopening for defined categories of goods and persons, with monitoring, would deliver visible benefit to both populations and would create the constituency for continued cooperation that no summit has produced. In this conflict, as in many, the technical track is where trust is actually built and the political track is where it is spent.

Finally, the article’s closing warning about the East African Community deserves emphasis, because it applies beyond this case. A regional organisation whose members cannot settle a dispute between two of them has demonstrated the limit of its integration project, and the remedy is institutional rather than diplomatic: standing dispute settlement machinery with automatic jurisdiction, so that a member state’s refusal to engage does not by itself end the matter. The East African Court of Justice already exists and is under used. Building the habit of referring inter state disputes to it, on the technical questions first, is how such institutions acquire the authority that the author correctly finds them to lack.

* Added by the WMO Editorial Team

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[1] Worldometer, “Rwanda Population (2021),” 2021, https://www.worldometers.info/world-population/rwanda-population/. Accessed on 22 March 2021.

[2] Worldometer.

[3]The International Trade Administration, “Rwanda – Market Overview,” 2021, https://www.export.gov/article?series=a0pt0000000PB09AAG&type=Country_Commercial__kav. Accessed on 21 March 2021.

[4] Statistica, “Rwanda: Share of Economic Sectors in the Gross Domestic Product 2009-2019,” November 18, 2020, https://www.statista.com/statistics/452199/share-of-economic-sectors-in-the-gdp-in-rwanda/.

[5] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels,” March 5, 2019, https://www.voanews.com/africa/rwanda-accuses-uganda-supporting-rebels.

[6]Worldometer, “Uganda Population,” 2021, https://www.worldometers.info/world-population/uganda-population/.

[7] The Government of Uganda, “The Economy,” 2021, https://www.gou.go.ug/about-uganda/sector/economy.

[8] Rene Lemarchand, “Rwanda: Culture, History, & People,” Encyclopaedia Britanica, 2021, https://www.britannica.com/place/Rwanda.

[9] Omari H. Kokole, “Uganda: Culture, History, & People,” Encyclopaedia Britanica, 2021, https://www.britannica.com/place/Uganda.

[10] A K Kaiza, “The Rwanda-Uganda Border Closure: When Love Turns to Hate…and Rebels Become Tyrants,” April 5, 2019, https://www.theelephant.info/features/2019/04/05/the-rwanda-uganda-border-closure-when-love-turns-to-hateand-rebels-become-tyrants/.

[11] Ibid.

[12] Kaiza, “The Rwanda-Uganda Border Closure: When Love Turns to Hate…and Rebels Become Tyrants.”

[13] Déogratias Byanafashe and Paul Rutayisire, History of Rwanda: From the Beginning to the End of the Twentieth Century (Kigali: National Unity and Reconciliation Commission (NUCRC), 2016).

[14] Sophie Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda,” World Politics Review, October 17, 2019, https://www.worldpoliticsreview.com/articles/28272/the-dangers-of-deteriorating-relations-between-rwanda-and-uganda.

[15] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[16] Tony Geoffrey Owana, Could Exiles Have Returned to Rwanda without War? Part 3: I Am Not Rwandan, M7 Assures Habyarimana, 2020, https://www.youtube.com/watch?v=pTXXuwFgsN0.

[17] Byanafashe and Rutayisire, History of Rwanda.

[18] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[19] Byanafashe and Rutayisire, History of Rwanda, 625.

[20] Paul Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War,” July 3, 2019, https://africacenter.org/spotlight/escalating-tensions-between-uganda-and-rwanda-raise-fear-of-war/.

[21] Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda.”

[22] United Nations, “Letter S/2018/1133 – E – S/2018/1133 Dated 18 December 2018 from the Group of Experts on the Democratic Republic of the Congo Addressed to the President of the Security Council,” December 18, 2018, https://www.undocs.org/S/2018/1133.

[23] Faustin Kayumba Nyamwasa was in Ugandan army as many of his compatriots. He was later the Rwandan Army Chief of Staff and Ambassador of Rwanda to India. The Military High Court (MHC) sentenced him to 24 years in prison for forming a terrorist group, threatening state security, undermining public order, promoting ethnic divisions and insulting the person of the President of the Republic. His sentence includes four years for deserting the Army. He was also dismissed with disgrace from the Rwanda Defence Forces.

[24] Nantulya, “Escalating Tensions between Uganda and Rwanda Raise Fear of War.”

[25] Nantulya.

[26] Nantulya.

[27] Nantulya.

[28] Neiman, “The Dangers of Deteriorating Relations Between Rwanda and Uganda.”

[29] Collin Mwai, “Government Allays Fears on Imports, Exports from Uganda,” March 5, 2019, https://www.newtimes.co.rw/news/fears-imports-exports-uganda.

[30] Voice of America, “Rwanda Accuses Uganda of Supporting Rebels.”

[31] Voice of America.

[32] The Chronicles, “Disappointment: Rwanda-Uganda Border Not Opening Today, May Be Opened In 45 Days or Even Never,” February 21, 2020, https://www.chronicles.rw/2020/02/21/disappointment-rwanda-uganda-border-not-opening-today-may-be-opened-in-45-days-or-even-never/.

[33] Mwai, “Government Allays Fears on Imports, Exports from Uganda.”

[34] Eugene Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions,” Voice of America, September 17, 2019, https://www.voanews.com/africa/rwanda-uganda-hold-peace-talks-defuse-tensions.

[35] United Nations, “Secretary-General Welcomes Rwanda-Uganda Memorandum of Understanding, Urging Neighbours to Restore Friendly Ties Cooperation for Regional Stability,” August 23, 2019, https://www.un.org/press/en/2019/sgsm19708.doc.htm.

[36] Voice of America, “Uganda, Rwanda Leaders Sign Pact Aimed at Ending Standoff,” August 21, 2019, https://www.voanews.com/africa/uganda-rwanda-leaders-sign-pact-aimed-ending-standoff.

[37] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[38] Ministry of Foreign Affairs – Rwanda, “The First Meeting of the Ad-Hoc Commission on the Implementation of the Luanda MoU between Rwanda and Uganda Convenes in Kigali,” August 21, 2019, https://www.minaffet.gov.rw/updates/news-details/communique-the-first-meeting-of-the-ad-hoc-commission-on-the-implementation-of-the-luanda-mou-between-rwanda-and-uganda.

[39] Uwimana, “Rwanda, Uganda Hold Peace Talks to Defuse Tensions.”

[40]Mariam Abele, “Talks between Uganda, Rwanda Reach Stalemate,” December 14, 2019, https://www.aa.com.tr/en/africa/talks-between-uganda-rwanda-reach-stalemate/1673702#.

[41] The Chronicles, “Disappointment: Rwanda-Uganda Border Not Opening Today, May Be Opened In 45 Days or Even Never.”

[42] Marieke Kleiboer, “Understanding Success and Failure of International Mediation,” The Journal of Conflict Resolution 40, no. 2 (1996): 379.

[43] World Mediation Organization, Mediation and Conflict Management (Berlin: World Mediation Organization, 2013), 446.

[44] World Mediation Organization, 448.

[45] World Mediation Organization, 335.

[46] Holistically Speaking, “Mediation for Conflict Resolution” with Guest, Jennifer Larsen, 2012, https://www.youtube.com/watch?v=kIBuXw1qAYM&feature=emb_title.

[47] Holistically Speaking.

[48] Kleiboer, “Understanding Success and Failure of International Mediation,” 368.

[49] Kleiboer, 371.

[50] East African Community, “Overview of EAC,” 2021, https://www.eac.int/overview-of-eac.

[51] ICGLR, “Background,” accessed March 14, 2021, http://www.icglr.org/index.php/en/background.

[52] Amy L Smith and David R Smock, eds., Managing a Mediation Process (Washington, D.C: U.S. Institute of Peace Press, 2008), 13.

[53] Voice of America, “Uganda, Rwanda Leaders Sign Pact Aimed at Ending Standoff.”

Supplementary references added by the WMO Editorial Team

Memorandum of Understanding between the Republic of Rwanda and the Republic of Uganda, signed at Luanda, 21 August 2019, and the Extradition Treaty signed at Gatuna, 21 February 2020.

Treaty for the Establishment of the East African Community, 1999, and the Protocol on the Establishment of the East African Court of Justice.

Pact on Security, Stability and Development in the Great Lakes Region, ICGLR, Nairobi, 2006.

Constitutive Act of the African Union, 2000, and the Protocol Relating to the Establishment of the Peace and Security Council, 2002.

Reports of the United Nations Group of Experts on the Democratic Republic of the Congo, Security Council, New York.

Prunier, G. (2009). Africa’s World War: Congo, the Rwandan Genocide, and the Making of a Continental Catastrophe. Oxford University Press, New York.

Reyntjens, F. (2009). The Great African War: Congo and Regional Geopolitics, 1996 to 2006. Cambridge University Press, Cambridge.