African Union investigation of Al-Bashir: A delay of justice or a display of sovereignty?

3rd September 2010 By: In On Africa IOA

The continent of Africa exists amidst a plethora of political, socio-economic and environmental quandaries and is resultantly often the subject of global discussion or intervention. In a period where international organisations are designed to attend to challenges that supersede the state's mandate, what role does Africa's regional organisation play? One role of the African Union (AU) is that it is a forum for African Governments to cooperate towards solutions for crises confronting African states. Sudan's political troubles have not only been the topic of recent international debate and speculation, but have also spawned dissension within the AU arena.


The controversy surrounding Omar Al-Bashir, Sudan's President, and the part he played in Sudan's human rights catastrophe is proliferated by the ensuing reaction of the international community. This controversy stems from the ambivalent position of the International Criminal Court (ICC), which possesses a responsibility to protect the rights of humanity, while concomitantly upholding the basic rule of state sovereignty.


Alongside the ICC‘s struggle with its paradoxical position is the responsibility the AU has regarding the entire situation in Sudan. Where does the AU's responsibility lie? Does it lie solely with the people of Sudan and the respect for human rights? Does the AU's responsibility find positioning with the notion of guarding against threats to state autonomy or does it, like the ICC, straddle the divides of the two? The prioritisation afforded by the AU to either human rights or state sovereignty may have implications on attempts by the ICC to redress the injustices carried out in Sudan and may set a precedence for future African conflicts. For these reasons, this discussion paper evaluates the recent AU decision to investigate Al-Bashir and discusses whether this move was based on the intention to delay the course of justice or to demonstrate the doctrine of state sovereignty in Africa. Attempts to address this issue should consider the role of Africa's past in its present and future undertakings with the Western world. It is due to this, that the paper firstly looks into the key trends characterising the continent's dealings with the Western world since colonialism. It then assesses the rationale behind the AU's criticism of the ICC arrest warrant, and from this perspective, deciphers the AU's stand on the matter.

The haunted continent of Africa


One legacy of colonialism in Africa is that of a leaning towards imperialist thinking within discourses on global North-South relationships. The colonialist era was marked by the exploitation of African economies, which were dominated by their colonial masters. This gave rise to cavernous levels of economic inequality between the developing and developed worlds and created chronic economic dependency. The unequally shared gains and costs of unbridled global trade since colonialism has seen Africa bearing the brunt of underdevelopment.(2) The views of critics and apologetics of colonialism create contention as to the perceived effect of colonialism on Africa's economy, since the latter points to the establishment of roads, hospitals and railway lines as direct benefits of this historical development. The perspective of African leaders concerning colonialism however, is mainly if not unanimously, far from favourable.


Politically, the effects of colonialism on Africa spell a similar story. The abrupt replacement of pre-colonial political systems with foreign ones is rooted in the political woes that have faced Africa since the end of colonialism. Ethnic and intractable wars on the continent are linked to the alteration of geographic or territorial divides to reflect colonial ownership.(3) More so, corruption, which has become endemic in the continent, finds linkages to predatory practices carried out during the colonial era.


African scholars and leaders attribute colonialism to Western states' interest and indicate the continued existence of this interest in global North-South dealings. The scepticism with which many Africans view the motivation for the developed world's interest in Africa, qualifies it as a continent haunted by its past. In present political and economic dealings between Africa and the West, the legacy of the past potentially has varying degrees of influence and possesses the power to delineate the trajectory African leaders follow.


State sovereignty versus respect for human rights in the African Union


AU official documents make reference to its respect for human rights. Specifically, Article 4(h) of the 2002 ‘Constitutive Act of the African Union' alludes to "the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect to grave circumstances namely: war crimes, genocide, and crimes against humanity."(4) With regard to sovereignty, Article 3(b) of its Act states that the AU's principle is to ‘Defend the sovereignty, territorial integrity and independence of its Member States.'(5) Deducible from Article 4 (h) is that the AU seeks the security of the continent and consequently identifies the importance of intervention, when necessary. Its 2003 intervention in Burundi goes to illustrate its efforts at regional security.(6)


Despite AU interventions in its members' affairs for the purpose of peace, many African leaders have had a culture of reluctance in condemning their counterparts.(7) In the case of Al-Bashir, a few leaders such as those from Uganda, South Africa, Ghana and Botswana, have revealed their criticism of the Sudanese human rights situation and the support for Al- Bashir's arrest.(8) This reflects that despite the AU's theoretical stand against the disregard for human rights, its actions towards the perpetrators have not always matched its claims. The Constitutive Act of the AU gives the body the right to intervene in the internal affairs of its member states in defence of human rights, but at the same time, protects its members by defending their sovereignty. This reveals that in fact the AU guards its members' sovereignty against threats from within the continent, independent of the Union, as well as from threats originating outside the continent.


Some African leaders have accused the ICC of being fixated with prosecuting African leaders, claiming that the court neglects to prosecute war criminals from outside the continent.(9) AU Commission Chairperson, Jean Ping, specifically criticises the ICC of being a bully to Africa.(10) Nevertheless, the recent AU denouncement of Al-Bashir's arrest warrant flies in the face of its claims to uphold human rights' protection against genocide. Although the AU Chairman, Malawi's President Bingu wa Mutharika, argues that the AU's condemnation of the arrest warrant has more to do with the need for further investigation than to delay justice, what is the cost to civilian lives? While the AU argues that the ICC is guilty of dictating terms, there is no guarantee that the organisation would support Al-Bashir's warrant if the ICC had carried out its arrest proceedings in cooperation with the AU.(11) This is especially so, against the background of African leaders' perception of the West.


An AU delay of justice, could explain the AU's statements for two reasons. Firstly, it could be a purposeful delay stemming from a defiance of the ICC ruling, based on the fact that it is, after all, Western. Based on this, the AU believes that the Al-Bashir indictment is nothing more than a mechanism with which to further interfere with African internal affairs. Meanwhile, the 12-month delay could further jeopardise human rights on the continent. Secondly, the AU's statement to delay prosecution could be due to the inability for the AU to reach consensus on whether or not to accept the Al-Bashir warrant. The ICC ruling has allegedly split the AU into two camps - the supporters and the critics. The divisions see mostly Northern and West African states in opposition with a group of states viewed by analysts as allies of the West.(12) If this is the case, these divisions could cause a deadlock and delay the outcome of the Sudanese crisis.


This brings in the question of whether or not the AU will decide on the outcome for Al-Bashir and the south of Sudan, and how long this is likely to take. The question is pertinent because the AU has never participated in indicting a sitting president for taking part in war crimes, genocide or crimes against humanity. If the AU eventually decides to prosecute or support prosecution against Al-Bashir, it would be due to intense pressure. This pressure could be from the international community, from within the organisation, or as a result of combined pressure from the two. On the other hand, if Al-Bashir is found innocent by the AU, it would signify a blatant refusal to cooperate with the ICC. Lastly, at the end of the 12 months, the AU could further delay indictment with inconclusive findings, in the hope that the case will simply slip out of the spotlight.




When viewed independently, there is no question that the elements of human rights and sovereignty are of significant value to the AU. On the other hand, when pitted against one another, the comparative facet comes into perspective and prioritisation of one over the other is imminent. This is more so, against the background of a past riddled by Western domination of Africa. The AU is inclined to neglect the principle of human rights protection, despite its claims to be against the culture of impunity, due to factions in the organisation, which frown at the ICC's interference in African affairs. This does not completely rule out future AU cooperation with the ICC, especially if in the long run the ICC allows some ownership of the judicial proceedings to Africa.


The fact that Africa is new to presidential indictment and has been reluctant to criticise African rulers, makes it unlikely that Al-Bashir will be found guilty by an African investigation. Some however, may view the Sudanese situation as an opportunity to test the regional body's long term normative prioritisation. The AU's decision after 12 months could set precedence for African leaders, either in discouraging impunity or encouraging it, on the basis that the regional body unswervingly backs its leaders, for sovereignty's sake.

Written by: Uyo Salifu(1)


(1) Contact Uyo Salifu through Consultancy Africa Intelligence's Africa Watch Unit (
(2) Omary Mjenga, ‘A Watershed in North-South Relations', Share the World's Resources, 29 January 2006,
(3) Tunde Obadina, ‘The Myth of Neo-Colonialism', Africa Economic Analysis, 23 January 2008,
(4) Kwesi Aning and Samuel Atuobi, 2009. ‘Responsibility to Protect in Africa: An Analysis of the African Union's Peace and Security Architecture,' Global Responsibility to Protect, Volume 1 (2009), 90-113.
(5) African Union, 2002. ‘Constitutive Act of the African Union'
(6) Stephanie Hanson, ‘The African Union', Council on Foreign Relations, 1 September 2009,
(7) Kojo Bedu-Addo, ‘Seizing sovereignty in Africa', BBC News, 30 June 2004,
(8) Arab News.Com, ‘African nations divided over Bashir genocide charge', 25 July 2010,
(9) Ibid.
(10) Sudan Tribune, ‘African Union moves aggressively to shield Bashir from prosecution', 29 July 2010,
(11) Ibid.
(12) Ibid.