One of Uganda’s best judges, Solome Balungi Bbosa, has landed at the Hague-based International Criminal Court (ICC).
Strangely, although President Museveni is a vociferous critic of the ICC, it is understood that he assigned Attorney General William Byaruhanga and Uganda’s permanent representative at the UN, Adonia Ayebare, to lobby and ensure that she gets that posting.
The irony is that President Museveni once contemplated pulling Uganda out of ICC. Reason? The court targets African criminals and is lenient on those from Europe and America.
The president’s disapproval was particularly noticeable in 2016 when he defied ICC orders to arrest and surrender Sudan president Omar al-Bashir.
The ICC issued arrest warrants for Bashir in 2009 and 2010, accusing him of masterminding genocide and crimes against humanity during the campaigns to quell revolts in the Darfur region of Sudan.
As a signatory to the Rome Statute which established ICC, Uganda is required to act on its arrest warrants. But in 2016, Bashir attended President Museveni’s swearing-in ceremony and he flew out untouched.
The ICC is complementary to national jurisdictions, meaning that in cases where national courts could not try crimes under the statutes, the accused could be referred to it.
And this is captured in the preamble of the Rome Statute: “affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at national level and by enhancing international cooperation.”
Since this international court does not have a police force, it relies on the cooperation of the state parties to enforce its orders.
After the 2016 inauguration ceremony, Museveni explained that he could not invite Bashir and then later arrest and surrender him to ICC.
“That is very un-African. It is uhuni (buyaye). We don’t treat visitors like that,” he said.
And again this year, President Bashir came back to Uganda and his host drove him around his farm in Kisozi as the two heads of state smiled and chatted away.
It is only Botswana and Malawi that threatened Bashir with arrests. In June 2015, South Africa, another state party to the Rome Statute, was served with a request to help ICC arrest Bashir.
But the writing was on the wall that they were not willing to help the moment they allowed him on South African soil and accorded him all the immunities enjoyed by foreign dignitaries.
In international law, the doctrine of sovereign or diplomatic immunity entitles certain holders of high-ranking offices such as that of a president to enjoy immunities from jurisdiction in other states, both civil and criminal.
That means that national courts are unable to try a high official of another state who is suspected of committing crimes, as this would constitute a violation of state sovereignty.
This is derived from the United Nations Charter which enunciates the principle of the sovereign equality of all member states, whereby a state is not permitted to interfere in affairs that are within the domestic jurisdiction of another state.
Sovereign immunity covers both heads of state and the state itself. Personal immunity only extends to incumbent heads of state. And indeed, Bashir is a sitting president.
According to article 27 (irrelevance of official capacity) of the Rome Statute, Bashir’s official capacity as a sitting head of state does not exclude his criminal responsibility, neither does it grant him immunity against prosecution before the ICC.
The article states: “This statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute...”
Article 27 (2) adds: “Imunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”
The good intentions of the ICC to fight impunity of dictators have been defeated by the very signatories to the Rome Statute.
There is apprehended bias. African leaders who were very enthusiastic when signing this law have lost vigour partly because many of them thought the law would only catch their opponents. Now it turns out that sitting presidents are subjects to ICC’s jurisdiction.
So, this is the milieu in which Justice Bbosa will operate. She is representing a country opposed to the conduct of ICC!
While her role is to dispense justice, she could as well be deployed to change the negative attitudes prevailing back home. Good luck, my lord!
The author is the business development director at Observer Media Limited.