The High Court International Crimes Division has Wednesday adjourned the hearing of an application that sought to have Sudanese President Omar El-Bashir arrested and handed over to the International Criminal Court (ICC).
President Bashir who has been in Uganda for a state visit this week is wanted by ICC for war crimes against humanity that were perpetrated during the war in Dafur decades ago. But the Ugandan government which is a signatory to the Rome Statute that established ICC has persistently refused to arrest Bashir each time he has been in Uganda.
The application before the High Court was filed by Ugandan victims of the Darfur war under their umbrella organization Uganda Victims Foundation. The victims were represented by lawyer Nicholas Opiyo and the Executive Director of the Foundation Christ Ongom.
Opiyo had argued on Wednesday before court that the application sought an interim warrant of arrest given the urgency of the issue especially that President Bashir was likely to leave Uganda any time. He further submitted that the matter was of great importance due to the fact that it touched on international principles.
The arrest warrant request stems form the failure by government to arrest Bashir when he attended the swearing-in ceremony of President Yoweri Museveni in Uganda in March 2016 despite a formal request by ICC to have the former arrested.
But Elisha Bafirawala, the legal counsel of the respondents (Attorney General and Minsiter of Constitutional Affairs Gen Kahinda Otafiire) asked for an adjournment claiming he had only been served late Tuesday morning.
High Court Justice Moses Mukibi, however, questioned whether jurisdiction of a domestic court is an issue that has since been pursued by international bodies like the UN Security Council and ICC.
Justice Mukibi’s concern based on the fact that subsequent to Uganda’s refusal to arrest Bashir in 2016, the UN had condemned it for bleach of its obligations and referred it [Uganda] to ICC for sanctions.
“The matter was taken to a competent chamber, heard and referred the state of Uganda to the President of ICC for sanctions. Is there anything left for a domestic court other than waiting for the sanctions,” Justice Mukibi asked.
“The old ICC request expired. Unless there’s a new arrest request from ICC relating to his [Bashir] visit to Uganda this week, I don’t see this matter as urgent,” he ruled.
It is upon this basis that the Judge adjourned the mention of the case to December 12 this year to accord both sides to ascertain whether in nature, an ICC arrest request lapses.
The applicants’ lawyer, Opiyo in reacting to the adjournment said; “It is a misunderstanding to suggest that an arrest request by ICC can lapse. The arrest warrant still stands until the arrest is effected”.
He told the press that the adjournment did not consider the time factor of this application.
“It is a mistake not to have given us an arrest warrant. As day follows night, Uganda will be found to again be in bleach of its obligations and the suspect [Bashir] a chance to leave town,” Opiyo said.
However, the respondents’ counsel had earlier stated that President Bashir left the country on Tuesday and thus the application had been overtaken by events.