Al-Bashir can be tried in Uganda and fulfil the ICC complementarity principle.
Former Sudanese President Omar Al- Bashir’s ouster from office after over four months of peaceful protest by Sudanese people against his regime, has revived debates about his trial before the International Criminal Court (ICC) for War Crimes, Crimes Against Humanity and Genocide. Despite two outstanding ICC arrest warrants, Bashir has evaded arrest by ICC member states using the privilege of his office as head of state and even enjoyed the support of states within Africa and from the African Union (AU), who perceive the ICC as biased against Africans. Whereas the Sudan governing military council which took over after Bashir’s ouster initially asserted that he would be tried locally in a military court, it recently changed tune, saying the matter would be handled by the civilian government to which it will eventually hand over power. However, it is unclear when this might be as the handover remains an issue of contention in the transition. In any event, the uncertainty of the political situation in Sudan, the loss of Presidential immunity for Bashir and some African states’ aversion to the ICC ought to evoke deliberate discussions in Africa about domestic or regional accountability for Bashir’s alleged crimes.
Uganda’s State Minister for foreign affairs, Okello Oryem recently announced that the Ugandan government would offer Al-Bashir asylum if he requested it. His main premise being that Bashir is an instrumental co-guarantor to the South Sudan Peace agreement, for which he must be given credit. What has not been considered is that without his functional immunity as head of state, Uganda would be obliged to arrest and prosecute Bashir for his alleged atrocity crimes should he set foot in the country.
Although Uganda was the first country to refer a case to the ICC, Uganda’s President Yoweri Museveni has made no secret of his scepticism and distrust of the court. He is on record as early as 2014, during a ceremony to mark 51 years of Kenya’s independence, suggesting that he would propose a motion before the AU for a mass withdrawal of African States from the ICC Statute. Such a non-binding resolution was indeed passed in 2017. Whereas the spectacle of a mass withdrawal never materialised, and to date, within the AU only Burundi has officially left the ICC, the question of how to fill this sovereignty and impunity gap persists.
However, this need not be a challenge if African states look to their domestic jurisdictions more. Uganda domesticated the ICC Statute through the ICC Act of 2010, granting its courts extraterritorial jurisdiction over atrocity crimes. Uganda also has a specialised International Crimes Division (ICD) of the High Court as part of its domestic court structure which can specially prosecute said crimes. While the crimes for which Bashir stands accused allegedly occurred between 2003 and 2008 before Uganda passed its ICC Act, this would not present legality challenges because these crimes: genocide, war crimes and crimes against humanity, were already internationally criminalised under treaty and customary law, during the period in issue. Using the principle of universal jurisdiction, the ICD can prosecute Bashir for the alleged crimes. This would enact ‘African solutions to African problems’ which President Museveni and many within the AU base on to reject the ICC and other perceived attacks on member states’ sovereignty. It would also fulfil the ICC’s complementarity requirements as long as Uganda demonstrates that it is able and willing to prosecute and is not seeking to shield Bashir from the process.
The AU could assist Uganda as it did for Senegal in the prosecution and conviction in 2016 of former Chadian head of state- Hissène Habré - for crimes against humanity, torture and war crimes. While Bashir’s victims might be able to pursue justice against him domestically, and the AU could intervene to assist Sudan in this regard, the process would likely delay, since as noted earlier the country is still undergoing a political transition. On its part, Uganda offers the expediency and benefit of a potentially neutral ground and a fairly stable political landscape. The AU support would be more cost effective considering the basic structures for an ‘internationalised domestic trial’ within the ICD are already in place. The support would go towards securing evidence, providing international investigators, witness protection and general funding towards an effective prosecution. It’s the least the AU can do for ‘’African solutions to African problems’’ considering it has to date, not created a criminal chamber under the African Court on Human and Peoples’ Rights for a regional solution to cases like Bashir’s.