The troubles of Sudan’s fallen leader Omar al-Bashir are not yet over. The ex-leader ousted last year because of dissatisfactory governance has suffered a stretch of nightmares. The recent decision by the International Crimes Division of the High Court of Uganda to issue a warrant of arrest against him for crimes under the Rome Statute of 1998 is another spanner thrown in the works.
As Fatou Bensouda, endlessly cries to the United Nations Security Council, international bodies and states parties to take part in the capture and surrender of Bashir to the International Criminal Court (ICC), an astute justice in Uganda handed out an arrest warrant against him.
Bashir and four others are wanted for crimes against humanity, war crimes and genocide contrary to Article 5 of the Rome Statute of 1998 (ICC Statute).
The alleged crimes arise from the situation in western Sudanese Province of Darfur in the early 2000s that saw atrocious criminal behaviour meted out against their own nationals.
Though Sudan is not signatory to the ICC Statute, the situation in Darfur was referred to the court by the UN Security Council under its mandate in Article 13(b) of the same Statute. This triggered the ICC to commence investigations and proceedings into the actions leading to issuance of an arrest warrant against the then president of Sudan and his four counter- parts.
While the arrest warrant was subsisting, Bashir visited Uganda on three occasions; in 2016, 2017 and 2018. During the 2017 visit, the Uganda Victims Foundation filed a case in the High Court International Crimes Division against Bashir’s visit praying that Court issue an arrest warrant against the despot.
Court heard the application but deferred determination of the merits to a future date leaving Bashir to gracefully return to his Sudan palace thereafter. However, Justice Dr Henry Peter Adonyo on December 19, 2019 made a ruling and issued a warrant of arrest against Bashir in the above case.
In his decision, the justice stated that Uganda should have arrested Bashir when he visited Uganda in 2017. To this effect, should Bashir step here, Uganda must arrest him and surrender him to the ICC as a matter of international obligation.
It should be known that the International Crimes Division of the High Court in Uganda equally has the mandate to try any suspect of crimes under the ICC Statute as long it can be demonstrated that fair justice will be granted to the victims and suspects in the eyes of the ICC. This is under the renowned principle of complementarity enshrined in the 1998 Rome Statute.
However, my issue with this warrant of arrest is that it was delivered only two years and many events late. Whereas the warrant puts Uganda in the international good books and proves the nation’s disdain for the most atrocious of crimes, a question lingers as to whether or not this warrant is just a little too late. Though rightly issued, the arrest warrant risks irrelevance due to many reasons but here is three.
First, the 75-year-old former leader is serving a two-year detention sentence in a facility for the elderly in the Sudan for corruption related offences and money laundering. This is only one of the many charges against Bashir. I am confident that more convictions will be secured, not with the desire of the current leader to prove that justice against the former despot is served.
Surely, with such a “busy schedule”, when will the man take a detour to Uganda?
Second, the Hague-based Court faces a lot of rebuke from African leaders, without exception to our head of State. The court has been repetitively criticised for witch-hunting African leaders to the exclusion of suspects in the other parts of the world. Also, Uganda insinuated that there would be talks with Bashir should he want to seek asylum in Uganda. Whatever that means! So in the above circumstances, can Ugandan authorities hand over Bashir to the ICC? Unlikely.
Despite Sudan prosecuting Bashir for offences triable by the ICC, it does not necessarily bar the international court from prosecuting him for similar crimes using different evidence or information. With this in mind, however, there is little or no sentiment among African leaders to surrender a comrade who simply practiced what other leaders are doing back in their home countries.
These same leaders spoke of opting out of the Rome Statute that establishes the ICC at one point when the then prosecutor, Moreno Ocampo was stern on prosecuting President Uhuru Kenyatta and others for serious crimes arising out of the post-election violence in Kenya.
They deliberated on granting the African Court of Human and People’s Rights criminal jurisdiction and also establishing a criminal division in the East African Court of Justice to prosecute such crimes. Imagine an African Court, prosecuting African leaders for crimes committed against Africans.
Third, asylum seekers can equally be shielded under the law despite having committed crimes such as the ones Bashir is charged with. The discretion to grant asylum lies with the country of destination even if international law and conventions do not support granting asylum to perpetrators of crimes under the ICC Statute.
The arrest warrant may in that case be loosely interpreted to have no effect on the situation should Bashir seek asylum and he is granted the same in Uganda.
I laud the good justice for such a bold decision, which may be frowned upon by our authorities that seek to retain an image of solidarity in autocracy. I, however, cannot seem to wrap my head around the fact that this warrant was issued in vain.
With no perceived plan of Bashir coming to Uganda, the order of Court is infamously behind time. It should have been delivered in 2017 when the suspect was within our jurisdiction to have the much-desired sting effect. This was the case in South Africa in 2015 where Bashir had travelled to attend an African Union Summit. The fugitive had to be whisked off by the State as the High Court issued a warrant of arrest against him while still in the country.
Mr Bakulumpagi is a lawyer.