By SYLVIE NAMWASE

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In a recent decision by the East African Court of Justice, the East African Law Society lost a petition against the Attorney General of Uganda based on failure to adduce sufficient evidence.

The Law Society brought the petition on behalf of aggrieved Ugandans alleging that Ugandan state security agencies had used excessive force to disperse a series of lawful assemblies in 2011, in what famously came to be dubbed “walk to work protests.”

The protests were against the rising fuel prices and cost of living in Uganda.

The alleged unlawful use of force resulted in the death of about 10 people including two children, unlawful detentions, destruction of property, grave injuries among other violations of the Ugandan Constitution, the African Charter on Human and Peoples’ Rights and the Treaty establishing the East African Community.

The evidence, which the petitioners produced to support these claims, consisted of sworn affidavits, a DVD and newspaper clippings. The petitioners did not however produce certain key witnesses for oral testimony and cross-examination.

As part of their main claims, the petitioners maintained that the listed violations had been widely reported in print and electronic media all over the world, and had become so notorious that every person had to have had notice of them.

The Court did not agree. It further noted that given the gravity of the nature of allegations against the respondents, it was only prudent that it only accept evidence that could be verified. Drawing upon various standards evidentiary of the International Criminal Courts, Criminal Tribunals and the European Court on Human Rights, the Court rejected the DVD as inadmissible in evidence.

Finding the petitioners’ evidence weak overall, the court dismissed the petition.

Standard of proof

The loss of this petition on grounds of inadequate evidence demonstrates a major challenge of pursuing domestic justice for victims of large-scale violence by non-democratic states in Africa.

Initiatives taken towards public interest human rights litigation on behalf of victims would offer a suitable way to fill this impunity gap. The standard of proof hereunder is on a balance of probabilities and the victims have more agency and control over their case against the state than they would if public prosecution was their only option.

Unfortunately, the decision also highlights that even though a lower evidentiary burden exists for human rights cases, it is still relatively complex to meet for large-scale human rights violations by state agencies.

It would require litigants to prove multiple violations through identifying and producing many victims as witnesses, gathering and securing forensic and other evidence, all while ensuring witness protection and co-operation from relevant state agencies.

These challenges are arguably similar to those experienced by prosecutors in prominent international courts and tribunals, yet there are no identifiable institutional frameworks or initiatives within the legal fraternity in East Africa and the wider African Continent to offer specific training skills, human resources and funds to match the nature of these challenges.

Lawyers pursuing these cases would likely benefit from strategic approaches on common issues such as evidence gathering and storing, witness protection, among others. Strategies on how to secure state cooperation in accessing evidence in state custody, accessing witnesses and scenes of alleged violations would also be of benefit.

It is however also necessary for reforms in domestic and regional human rights courts so as to be alive to victims’ concerns for security and the challenge this might pose for mounting a successful case against powerful governments.

In the instant petition against the Government of Uganda, the East African Court appears to have glossed over the issue of witness protection yet it was a very likely reason why the petitioners failed to produce the actual victims of the alleged violations to testify.

In fact, the court suggested that the petitioners could have moved it to compel the witnesses to appear, but made no mention of what protections they would have been afforded.

The court has not developed specific rules and structures on witness protection, which in light of its human rights jurisdiction is a major weakness, considering it has to deal with cases of large-scale human rights violations by governments, bordering on international crimes. By their very nature, these crimes are political and the safety of victims and witnesses would be at stake.

Human rights lawyers and human rights courts in Africa will have to draw upon the more versatile strategies and features under international crimes prosecutions in order to be effective.

Specifically, more training and resources on how to gather and store evidence, and strategies on how to protect witnesses are critical.

Dr Sylvie Namwase is a post-doctorate researcher at the Human Rights and Peacebuilding Centre for Resolution of International Conflicts, University of Copenhagen.