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.