Reference

Author
Judgment date
Case number
Reference 3 of 2012
Court name
East African Court of Justice
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT

ARUSHA FIRST INSTANCE DIVISION

 

(Coram: Mary Stella Arach-Amoko, DPJ; John Mkwawa, J, Faustin Ntezilyayo J.)

 

REFERENCE NO. 3 OF 2012

 

 

HILAIRE NDAYIZAMBA..........................................APPLICANT

 

VERSUS

 

1. THE ATTORNEY GENERAL OF

THE REPUBLIC OF BURUND.….................1ST RESPONDENT

 

2. THE SECRETARY GENERAL OF THE

EAST AFRICAN COMMUNITY....................2ND RESPONDENT

 

28th February 2014

 

REFERENCE NO.3 OF 2012 Page 1

 

JUDGMENT OF THE COURT

INTRODUCTION

1.  This is a Reference by one HILAIRE NDAYIZAMBA, a resident of the Republic of Burundi, (hereinafter referred to as the “Applicant”). His address for the purpose of this Reference is indicated as C/O Mr Isidore RUFYIKIRI, Avenue Nicholas MAYUGI-‘KU MUGUMYA’, P.O. Box 1745 Bujumbura, Burundi.

 

2.  The Reference was filed on 23rd February 2012 under Article 30 of the Treaty Establishing the East African Community and Rules 1(2) and 24 of the East African Court of Justice Rules of Procedure (hereinafter referred to as the “Treaty” and the “Rules”, respectively). It is also premised on Articles 3(3) (b), 6(d), 7(2), 8(4), 27(1) and 30(1) and (2) of the Treaty.

 

3.  The Respondents are the Attorney General of the Republic of Burundi and the Secretary General of the East African Community who are sued on behalf of the Government of the Republic of Burundi and of the East African Community in their respective capacities as the Principal Legal Adviser of the Republic of Burundi and the Principal Executive Officer of the Community.

 

REPRESENTATION

 

4.  The Applicant was represented by Mr. Isidore Rufyikiri. Mr. Nestor Kayobera appeared for the 1st Respondent, while Mr. Wilbert Kaahwa, Learned Counsel to the Community appeared for the 2nd Respondent.

 

REFERENCE NO.3 OF 2012 Page 2

 

BACKGROUND

5.  The undisputed background to this Reference is as follows:

 

On 15th October 2009, Mr. Hilaire Ndayizamba, a businessman, was arrested by the Public Prosecutor of Burundi on suspicion of assassination of one Ernest Manirumva, then Vice President of OLUCOME (a Burundian anti-corruption Non-Governmental Organization), who was assassinated in the night of 8th-9th April 2009.  

 

On 22nd February 2012, the First Instance Tribunal of Bujumbura condemned Mr. Hilaire Ndayizamba to life imprisonment for the murder of Ernest Manirumva. An appeal against the life sentence was immediately made to the Court of Appeal of Bujumbura.

 

On 25th January 2013, the Court of Appeal of Bujumbura quashed the appeal and confirmed the life sentence. The Applicant through his Counsel applied for review of the judgment in the Review Chamber of the Supreme Court of Burundi and the matter was still pending at the time of the Reference.

 

THE APPLICANT’S CASE

 

6.  The Applicant’s case is contained in the Reference, an affidavit in support sworn on 22nd February 2012 by one Deo Nzeyimana, the Applicant’s reply to the amended 1st Respondent’s Response to the Reference filed on 26th March 2013, as well as his Counsel’s oral submissions made on 8th November 2013.

 

REFERENCE NO.3 OF 2012 Page 3

 

7.  Briefly, the Applicant avers that on 15th October 2009, he was arrested on suspicion that he had committed murder of one Ernest Manirumva. He alleges that following his arrest, he was not charged within the time prescribed by the Burundi Code of Penal Procedure and has since then been subjected to arbitrary and unlawful detention by agents of the Government of Burundi.

8.  He claims that the acts/omissions of the Government of Burundi was an infringement of Article 6(d) of the Treaty since they violate the fundamental principles of the East African Community. He further claims that the matter gained so much notoriety that the 2nd Respondent is bound to have known and ought to have taken action pursuant to Articles 29(1) and 71(1) (d) of the Treaty.

9.  The Applicant therefore seeks declarations from the Court that:

a)  Keeping him in detention is an infringement of Article 6(d) of the Treaty;

b)  The Secretary General failed to fulfil his obligations under Articles 29 and 71(1)(d) of the Treaty;

c)  He has a full right to enjoy his freedom without any prior condition;

d)  An order that he be immediately released;

e)  The costs of the reference.

 

FIRST RESPONDENT’S CASE

10. The 1st Respondent’s case is set out in his response and amended response to the Reference filed on 26th March 2012 and 22nd February 2013 respectively.

 

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11. In a nutshell, his response is as follows:-

a)  That the Court has no jurisdiction in the matter of this Reference;

b)  That no violation of the Treaty occurred by the arrest and detention of the Applicant since this was done in accordance with the law of the Republic of Burundi;

c)  He therefore prays that the Court should dismiss the Reference with costs.

SECOND RESPONDENT’S CASE

12. The 2nd Respondent filed his Response on 5th April 2012.

 

13. Affidavits in support of the response sworn by Dr. Julius Tangus Rotich and Mr. Jean Claude Nsengiyumva were filed on 13th March 2013 and 5th April 2013 respectively. The 2nd Respondent also relies on his written submissions filed on 22nd May 2013. His case is as follows:

a)  The 2nd Respondent has denied all responsibility in the matter before the Court as he was at all material times not aware of the alleged arrest and detention of the Applicant to prompt him to undertake any such investigations as he would in the discharge of his duties deem apt.

b)  That as soon as he learnt of the Applicant’s case, he took action with the Government of the Republic of Burundi;

c)  In the premises, he pleads that the granting of the Declaratory Order and other Reliefs sought by the Applicant against him does not arise.

REFERENCE NO.3 OF 2012 Page 5

 

SCHEDULING CONFERENCE

 

14. Pursuant to Rule 53 of the Rules of this Court, a Scheduling Conference was held on 25th January 2013 at which the following were framed as points of agreement and disagreement respectively:

Points of Agreement

Both parties agreed that the Reference raises triable issues based on the provisions of Articles 6, 27, 29, 30 and 71(1) (d) of the Treaty meriting adjudication and pronouncement by this Court.

Points of disagreement/Issues for determination by the Court

The parties framed the following issues for adjudication by the Court:

a)  Whether the Court is vested with the jurisdiction to entertain this Reference;

b)  Whether the Applicant’s detention is an infringement of Article 6(d) of the Treaty by the 1st Respondent;

c)  Whether the 2nd Respondent has failed to fulfil his obligations under Articles 29 and 71(1)(d) of the Treaty;

d)  Whether the Applicant is entitled to the Declaratory Orders he seeks.

 

15. In his written submissions, Counsel for the 2nd Respondent

REFERENCE NO.3 OF 2012 Page 6

raised yet another preliminary point that the Reference is time-barred.

 

16. It was agreed at the aforesaid Conference that evidence would be

by way of affidavits.

 

17. The parties also agreed to file written submissions in respect

of which they would make oral highlights at the hearing.

 

18. The parties noted that the case presented no possibility of

mediation, conciliation or settlement.

 

DETERMINATION OF THE ISSUES BY THE COURT

 

19. Applicable Rules and Principles for Interpretation:

 

The Court has constantly stated that the Treaty, being an international treaty, is subject to International Law of Treaties, specifically Article 31(1) of the Vienna Convention on the Law of Treaties which has set out the general rule in the interpretation of treaties, that a treaty shall be interpreted in good faith and in accordance with the ordinary meaning to the terms of the Treaty in their context, and in the light of the object and purpose.

We shall apply the above principles in deciding the case before the Court and in addition, we shall be guided by relevant provisions of the Treaty governing the Court’s jurisdiction.

Issue No.1: Whether the Court is vested with the jurisdiction to entertain this Reference

 

SUBMISSIONS

 

20. In his oral submissions, Counsel for the Applicant argued that,

REFERENCE NO.3 OF 2012 Page 7

 

according to Article 75 of the Burundi Code of Penal Procedure (Act No.1/015 of 20th July 1999), as long as a detainee has not been produced before a criminal court for trial, it is mandatory for the Public Prosecutor to present him before the competent judge for verification of the detention every 30 days, otherwise he has to release him automatically since he would have no more legal power to keep him in detention. He then submitted that from 17th March 2010 when the Applicant appeared before the judge of detention until 14th July 2010 when he appeared before the High Court of Bujumbura, more than thirty days had passed, and hence, his detention was illegal and unlawful because it violated the abovementioned provisions.

 

21. Further, Counsel maintained that despite the fact that the

Applicant had been subsequently condemned to life imprisonment by the Tribunal of First Instance of Bujumbura and that sentence was confirmed by the Court of Appeal of Bujumbura, his client continued to endure an arbitrary detention in light of the aforesaid provisions of Article 75 of the Burundi Code of Penal Procedure.

 

22. Given the foregoing, Counsel contended that the said detention constituted an infringement of the fundamental principles of good governance and rule of law enshrined in Article 6(d) of the Treaty by the Government of the Republic of Burundi. It is, therefore, his submission that the Court has the jurisdiction to interpret and apply the Treaty as it was decided in Attorney General of the Republic of Rwanda Vs. Plaxeda Rugumba, EACJ Appeal No.1 of 2012 and James Katabazi & 21 others Vs. Secretary General of the EAC & Attorney General of

 

REFERENCE NO.3 OF 2012 Page 8

Uganda, EACJ Ref. No.1 of 2007. In addition, Counsel argued that under Article 23(1) of the Treaty, the primary role of the Court as per the Treaty is to ensure adherence to the law in interpretation and application of compliance with the Treaty. Therefore, Counsel submitted that the Court has jurisdiction to entertain this Reference.

 

23. In his response, Counsel for the 1st Respondent argued that the murder case having been presented before competent judicial bodies of the country, the Court ought not to interfere in criminal matters undergoing national legal and judicial processes.

 

24. He asserted that the preventive detention of the Applicant was lawful on the grounds that it was done pursuant to the Burundian law, namely Articles 71, 72 and 75 of the Burundi Code of Penal Procedure and Article 205 of the Constitution.

25. Counsel further submitted that although, under Article 23(1) and Article 27(1) of the Treaty, the Court has jurisdiction over the interpretation and application of the Treaty, it does not, however, under Article 27(2) and 30(3) of the Treaty have jurisdiction to entertain prayers (a), (c) and (d) sought by the Applicant.

26. In support of his contention, he relied on Attorney General of Kenya Vs. Omar Awadh and 6 others, EACJ Appeal No. 2 of 2012 and contended that the Court does not have jurisdiction to entertain the prayer asking the Court to declare null and void the decision of keeping the Applicant in detention [part of prayer (a)], the prayer asking the Court to declare that the Applicant

 

REFERENCE NO.3 OF 2012 Page 9

 

has a full right to enjoy his freedom without any prior conditions [prayer c] and the prayer seeking an order that the Applicant be immediately released [prayer (d)].

 

27. On his part, Counsel for the 2nd Respondent joined issue with Counsel for the 1st Respondent and submitted that the Court has jurisdiction to interpret and apply the provisions of the Treaty, including Articles 6(d), 7(2) of the Treaty as was decided in Plaxeda Rugumba’s case (supra) and James Katabazi’s case (supra).

 

28. He then argued that in respect of some of the prayers

sought by the Applicant, namely part of prayer (a), and prayers (b) and (e), the Court in exercise of its interpretative jurisdiction under Article 27(1) of the Treaty may grant relief if on the evidence by the Applicant that relief arises.

 

29. Counsel hastened to add, however, that in respect of remedies under paragraphs (c) and (d) of the Reference which are matters of human rights and matters of municipal jurisdiction, and as was stated by this Court in the Plaxeda Rugumba’s case (supra), the Court will not exercise jurisdiction.

 

DECISION OF THE COURT ON ISSUE NO.1

 

30. Given the factual background of the Reference, the Court has toexamine whether it has the requisite jurisdiction to determine the Applicant’s allegations against the Respondents. In that regard, the starting point is Article 23(1) of the Treaty as read together with Article 27 from which the Court derives its mandate. Article 23 provides that:

 

REFERENCE NO.3 OF 2012 Page 10

 

“The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with the Treaty.”

Article 27 states that:

1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty;

Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States;

2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalize the extended jurisdiction.”

 

31. At the Scheduling Conference, parties agreed that the Reference

raised triable issues meriting adjudication and pronouncement by this Court. However, Counsel for the Respondents have contended that the Court is only competent to entertain the Applicant’s prayers pertaining to the interpretation and application of the Treaty. Counsel for the 2nd Respondent further argued that the Court cannot determine issues raising human rights matters since such a jurisdiction still awaits the operationalization of a Protocol under Article 27(2) of the Treaty.

 

32. It is common knowledge that the extended jurisdiction as

envisaged by Article 27(2) of the Treaty has not been conferred on this Court as decided especially in James Katabazi’s case

 

REFERENCE NO.3 OF 2012 Page 11

 

(supra) and Plaxeda Rugumba & Attorney General of Rwanda, EACJ Ref. No. 8 of 2010. We need not elaborate on this matter since it has been extensively debated in the said cases. It is, however, worth mentioning that the Reference before the Court invokes the Court’s jurisdiction to interpret and apply the provisions of the Treaty. The Applicant seeks, among others, to invoke the Court’s jurisdiction to hear and determine whether the 1st Respondent has breached the fundamental principles of the Treaty set out in Article 6(d) by keeping him in detention and whether the 2nd Respondent has violated Articles 29 and 71 (1) of the Treaty.

 

33. We wish to point out that Article 6(d) of the Treaty states that one of the fundamental Principles that shall govern the achievement of the objectives of the Community by the Partner

States is:

“good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunity, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter of Human and Peoples’ Rights.”

 

34. Given the foregoing and guided by the Court’s previous

decisions on similar matters [see for example - Plaxeda Rugumba’s case (supra), Professor Peter Anyang’ Nyong’o & 10 others Vs. Attorney General of Kenya & 3 others, EACJ Ref. No.1 of 2006; James Katabazi’s case (supra)], we are of the decided opinion, and in agreement with the Respondents,

 

REFERENCE NO.3 OF 2012 Page 12

 

that the Court has jurisdiction to entertain prayers (a), (b) and (e) of the Reference, and that it is not clothed with the jurisdiction to grant prayers (c) and (d), since the latter clearly falls outside the Court’s jurisdiction as provided for by Articles 23, 27 as read together with Article 30 of the Treaty.

 

WHETHER THE REFERENCE IS TIME-BARRED

 

35. As stated earlier, this issue was raised as a preliminaryobjection by Counsel for the 2nd Respondent. It is necessary to deal with it at this stage, since if it is answered in the affirmative, it would dispose of the whole Reference.

 

36. Counsel for the 2nd Respondent submitted that in light ofthe limitation period set to institute references of this nature pursuant to Article 30(2) of the Treaty, the matter was time-barred and the Reference should be dismissed with costs. Article 30(2) provides that:

The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.”

 

37. To buttress his assertion that the instant case was filed outof time, Counsel referred to Applicant’s relevant averments contained in paragraphs 10 to 15 of the Reference, and paragraphs 12 to 17 of Deo Nzeyimana’s affidavit in support of the Reference. It is his contention, therefore, that since the impugned detention commenced on 15th June 2011, which is the

 

REFERENCE NO.3 OF 2012 Page 13

 

date on which the Tribunal of First Instance made its decision and given that the Applicant was aware of the impugned infringement as of the abovementioned date, but chose to file his Reference only on 23rd February 2012, the said Reference was manifestly filed outside the two-month period prescribed by Article 30(2) of the Treaty.

 

38. Furthermore, relying on Omar Awadh’s case (supra), learned Counsel asserted that the Appellate Division of this Court, while considering the scope of Article 30(2) of the Treaty, held that the starting date of an act complained of under the said article (including the detention of a complainant), is not the day the act ends, but the day when it is first effected. He also cited an extract of the decision in Independent Medico Legal Unit’s case (supra) in which the Court stated that:

 

“The Treaty does not contain any provision enabling the Court to disregard the time limit of two months and that Article 30(2) does not recognize any continuing breach or violation of the Treaty outside the two months after a relevant action comes to the knowledge of the Claimant.”

 

39. Counsel also submitted that the “Applicant cannot afford himself the Argument to the effect that the detention arising out of the decision of the Tribunal of First Instance is equally unlawful and as such a continuing violation; and that, in this case, computation of the time can only commence after the cessation of the continuing detention. Continuing violation are not exempted from Article 30(2) of

 

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the Treaty because such an argument militates against the spirit and grain of the principle of legal certainty as was observed by the EACJ Appellate Division in Omar Awadh’s case.

 

Counsel for the 1st Respondent did not make submissions on this issue.

 

DECISION OF THE COURT

 

40. As the case stands, the main thrust of the Applicant’sCounsel’s argument is that, firstly, the failure by the Respondent to present the Applicant before the competent court within the prescribed time is unlawful and thus, an infringement of Article 6(d) and 7(1) of the Treaty. Secondly, since the preventive detention has never been confirmed as required by the Burundian law, there is continuing illegal and unlawful detention notwithstanding subsequent condemnations of the Applicant to life imprisonment and therefore, Article 30(2) of the Treaty as regards the computation of the time to institute proceedings cannot apply.

 

41. In agreement with Counsel for the 2nd Respondent’s positionas supported by the authorities cited above, we are of the decided view that Counsel for the Applicant’s argument revolving around the notion of a continuing violation of the Applicant’s rights does not stand at all. Since the impugned irregularities surrounding the Applicant’s detention triggering his claim were well known as by 15th June 2011, no reason was given why the time to file the Reference was not complied with as prescribed by Article 30(2) of the Treaty.

 

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42. In a similar case, the Appellate Division of this Court hasrejected the concept of legal continuing violations and opted instead for a strict interpretation of Article 30(2) of the Treaty in order to protect the principle of legal certainty. It has so decided that:

The principle of legal certainty requires strict application of the time-limit in Article 30(2) of the Treaty. Furthermore, nowhere does the Treaty provide any power to the Court to extend, to condone, to waive, or to modify the prescribed time limit for any reason (including for ‘continuing violations)”. [See Omar Owadh’s case (supra), p. 21].

 

43. In view of all the foregoing, we conclude that the Applicant filedhis Reference out of the prescribed time, and that, consequently, the Reference is time-barred for not complying with the provisions of Article 30(2) of the Treaty. We answer this issue in the affirmative.

 

44. Since the issue is answered in the affirmative, accordingly, werefrain from entertaining the remaining issues for the simple reason that the Reference is no longer alive.

 

45. Consequently, the Reference is dismissed.

 

46. As for costs, given the peculiar circumstances of thisReference, it would not serve the ends of justice to condemn the Applicant in costs. We accordingly deem it just that each party shall bear its/his own costs.

 

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CONCLUSION

47. The Reference is dismissed.

48. Each party shall bear its/his own costs.

49. It is so ordered.

 

Dated, Delivered and Signed at Arusha this 28th day of February, 2014

 

 

……............................

MARY STELLA ARACH-AMOKO1

DEPUTY PRINCIPAL JUDGE

 

 

............................

JOHN MKWAWA

JUDGE

 

 

.........................

FAUSTIN NTEZILYAYO

JUDGE

 

1 Hon. Lady Justice Mary Stella Arach-Amoko participated in deliberations. She retired from the Court on 28th November, 2013.

REFERENCE NO.3 OF 2012 Page 17

Author
Judgment date
Case number
Reference 6 of 2010
Court name
East African Court of Justice
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

 

FIRST INSTANCE DIVISION

(Coram: Johnston Busingye, PJ, Jean Bosco Butasi J, Isaac Lenaola J)

REFERENCE NO.6 OF 2010

 

ALCON INTERNATIONAL LIMITED ………………………………… CLAIMANT

VERSUS

1. STANDARD CHARTERED BANK OF UGANDA …… 1ST RESPONDENT

2. THE ATTORNEY GENERAL OF UGANDA ON BEHALF OF THE REPUBLIC OF UGANDA …………………………………. 2ND RESPONDENT

3. REGISTRAR OF THE HIGH COURT OF UGANDA -­ 3RD RESPONDENT

 

2nd September, 2013


INTRODUCTION

This Reference dated 20th August, 2010 was brought, inter alia, under the provision of Articles 27(2) and 151 of the Treaty for the Establishment of the East African Community and Articles 29 and 54 of the Protocol on the Establishment of the East African Community Common Market, respectively.

The Claimant is a construction company incorporated and registered in the Republic of Kenya, a member State of the East African Community (herein after referred to as “the Community”). It has perpetual succession, a common seal and power to sue and to be sued in its corporate name and its address is Postal Box Number 47160, NAIROBI, KENYA. For purposes of this Reference, its address was care of M/S Ibrahim Isaack and Company Advocates, Hughes Building 8th Floor Kenyatta Avenue, and P.O. Box 6697 500200, Nairobi, Kenya. The said Advocates were later replaced by M/S Muthomi & Karanja, Advocates Brandon Court, Marionette A2, Ndemi Lane, off Ngong Road, Nairobi, Kenya.

The First Respondent is a Limited liability company registered in Uganda and carrying out Banking Business, in Kampala, and its address is 5 Speke Road Postal Address as Post Office Box Number 7111, Kampala, Uganda. It is also incorporated in England with Limited liability by Royal Charter 1853.

The Second Respondent is the Attorney General sued on behalf of the Government of the Republic of Uganda and is the Principal Legal Advisor to the said Government.

BACKGROUND

The Claimant was first registered in Kenya as Company Number C9646 by the Registrar of Companies at Nairobi and its history is very enigmatic and the reasons thereof will shortly become apparent. 42 years ago, in January, 1971, it was a Company Limited by shares, registered and incorporated in Kenya and the owners were three brothers of Indian origin, who are Kenyan nationals. For clarity, these brothers are:

1. INDERJIT SINGH HANSPAL;

2. KULTAR SINGH HANSPAL;

3. DAVINDER SINGH HANSPAL.

At the time of incorporation, the Company was called ALLIED CONCRETE WORKS LIMITED but, it has changed its name over the years as follows:

On 6th November, 1971, it became known as ALLIED CONTRACTORS LIMITED. On 26th July 1984, it was re-­‐renamed ALCON INTERNATIONAL LIMITED but as a company incorporated in the UNITED KINGDOM.

On 21st July, 1994 in any event, ALCON INTERNATIONAL LIMITED, a Company incorporated in the Republic of Kenya entered into an agreement with the National Social Security Fund (NSSF) of Uganda for completion of a partially constructed structure in reinforced concrete within Kampala City.

According to the Contract, ALCON INTERNATIONAL LTD was to be paid USD16,160,00 after completion of the structure later to be known as “Workers House” in Kampala. ALCON INTERNATIONAL LTD UGANDA is the one that carried out the execution of the contract which covered civil works, mechanical and electrical engineering, general and architectural work etc. On various dates between 11th December, 1997 and 30th April, 1998, NSSF wrote to ALCON INTERNATIONAL LIMITED giving notice of termination of the contract due to defaults allegedly committed by the later.

After lengthy correspondences between the Parties, the contract was formally terminated on 15th May, 1998.

On 30th November, 1998, an application in HCCS No.1255 of 1998, (Uganda) was filed by ALCON INTERNATIONAL LTD seeking certain orders for wrongful termination of the contract, but the Parties were advised to explore arbitration given the nature of the dispute. All the Parties agreed with the advice of the Court and after arbitration proceedings, the arbitrator awarded the Plaintiff, (ALCON INTERNATIONAL LTD) an amount of USD8,858,469.97.

Sometimes in the proceedings, ALCON INTERNATIONAL LTD, UGANDA appeared before the High Court and the Arbitrator to stake its claim to the Award but upon the Award being delivered, the NSSF challenged the same before the High Court but its Appeal was dismissed and it then filed Civil Appeal No.4 of 2009 before the Court of Appeal of Uganda challenging the judgment of the High Court in Appeal No.2 of 2004. Upon the Appeal being dismissed, the 1st Respondent, the Standard Chartered Bank of Uganda issued a Bank Guarantee number UGBG-­‐ 030482 for USD8,858,469.97 payable to Alcon International Limited as the judgment-­‐creditor upon determination of Appeal No.4 of 2009 in the Court of Appeal of Uganda.

On 25th August, 2009, the Appeal above was determined in favour of the Claimant who then demanded that the 1st Respondent should honour the Bank Guarantee and pay to it the decretal sum but later declined to do so.

In the meantime, the dispute had gone to the Supreme Court of Uganda in Appeal No. 15 of 2009 and the Supreme Court issued orders of stay of execution of the decree pending its judgment which was eventually delivered on 8th February, 2013. In that judgment, the Supreme Court ordered inter-­‐alia as follows:

i. that arbitral Award and the decision of the High Court should be set aside.

ii. that the judgment of the Court of Appeal be similarly set aside.

iii. HCCS No.1255 of 1998 was returned to the High Court for trial afresh.

The reasons for that decision were that the Award was made in the absence of a cause of action against the Appellants; that it was obtained illegally and contrary to Public Policy and that HCCS No.1255 of 1998 was wrongly referred to arbitration.

Prior to the above decision, the Claimant had filed the present Reference on 20th August, 2010 and it moved this Court to interprete and apply Articles 27(2) and 151 of the Treaty and Articles 29(2) and 54(2)(b) of the Protocol on the Establishment of the East African Community Common Market with regard to the enforcement of, and enhancement of trade and resolution and settlement of disputes for the protection of cross-­‐border investments.

CASE FOR THE CLAIMANT

The Claimant tendered both oral and Affidavit evidence and its Advocate Mr. Muthomi Thiankolu filed extensive written submissions and authorities in furtherance of the Claimant’s arguments.

Its case can be summarized as follows:

That the Republic of Uganda has failed to protect its cross-­‐border investment contrary to the letter and spirit of the Treaty and the Protocol;

That the Respondents have violated the express provisions of inter-­‐alia Articles 5, 27, 127(2)(d) and 151 of the Treaty as read with Articles 29 and 54(2)(b) of the Protocol by failing to honour the obligation to pay the decretal sum of USD8,858,469.97 and/or in accordance with a Bank Guarantee dated 29th October, 2003 and amended on 23rd October, 2008.

Further, that the Court’s interpretation and application of the provisions of Articles 27(2) and 151 of the Treaty as read together with Article 54(2)(b) of the Protocol should lead to the following orders in favour of the Claimant:-­‐

a) the Respondents be ordered to jointly and/or severally pay the Claimant the sum of USD8,858,469.97 together with interest and costs in full under the Bank Guarantee dated 29th October, 2003.

b) this Honourable Court be pleased to interprete and apply Articles 27(2) and151 of the Treaty for Establishment of the East African Community together with Articles 29(2) and 54(2)(b) of the Protocol on the Establishment of the East African Common Market on the enhanced jurisdiction of this Honourable Court as a competent judicial authority with regard to the enforcement of and enhancement of trade and resolution of settlement of and enhancement of trade and resolution and settlement of disputes for the protection of cross-­‐border investments.

c) this Honourable Court be pleased to declare that the signing of the Protocol on the Establishment of the East African Common Market and the coming into force of the said Protocol on 1st July, 2010 enhanced the jurisdiction of this Honourable Court as envisaged under Article 27(2) of the Treaty as a competent judicial authority for the determination of cross-­‐ border trade disputes between persons emanating from Partner States.

d) this Honourable Court be pleased to declare that where a Public official of a Partner State fails to honour his obligation/duty, statutory or legal to a person from a different Partner State, then under the spirit and letter of the Treaty and the Protocol, this Court has the jurisdiction to enforce that duty expeditiously.

e) direct the Respondents to pay the Claimant general damages as shall be determined by Court.

The said Prayers are also sought because the Claimant alleges that it has faced undue hardship and frustration in enforcing its rights through the Justice System in Uganda and that the Republic of Uganda is “guilty of unlawful expropriation, denial of Justice and failure to protect the Claimant’s cross-­border investment.”

CASE FOR THE 1ST RESPONDENT

The 1st Respondent, the Standard Chartered Bank of Uganda Limited has argued:

that it has been improperly sued in the Reference as it is neither a Partner State nor an Institution of the Community to whom Article 30(1) of the Treaty can be applied;

In any event that, no cause of action can lie against it because the Bank Guarantee was in effect a contract between the Bank and the 3rd Respondent and the Claimant was a stranger to that contract and;

that no demand has been made by the 3rd Respondent for the Bank to honour the Guarantee.

More fundamentally, the 1st Respondent has made the point that there is no Guarantee left to be enforced because the Supreme Court of Uganda has since set aside all the orders that related to the Guarantee and, therefore, the substratum of the Reference no longer exists.

Two other issues were raised by the 1st Respondent:

That the Reference is time-­‐barred and also that the Claimant has no rights under the Protocol for acts which arose prior to the coming in force of the said Protocol.

It, therefore, prays that the Reference should be dismissed with costs.

CASE FOR 2ND AND 3RD RESPONDENTS

The 2nd and 3rd Respondents were represented by Attorneys from the office of the 2nd Respondent and their case is as follows:

Like the 1st Respondent, the 3rd Respondent, not being a Partner State nor an Institution of the Community was improperly joined to the Reference. In any event, that the Claimant had no legal interest in the subject investment and was not a Party to the arbitral and litigation proceedings leading to the Bank Guarantee and, therefore, has nothing to enforce. Accordingly, the 2nd and 3rd Respondents had not breached any duty of care and neither did they fail to protect any cross-­‐border investments as alleged.

Like the 2nd Respondent, they seek orders that the Claimant has no cause of action; that the Reference is time-­‐barred and that the Claimant has no rights under the Protocol and that the Reference should, therefore, be dismissed with costs.

THE SCHEDULING CONFERENCE

On 3rd May, 2012, a Scheduling Conference was held and the Parties agreed that the following issues need to be determined by the Court:

1. Whether this Reference is properly before this Court as against the 1st and 3rd Respondents within the meaning of Article 30(1) of the Treaty, they being neither Partner States nor Institutions of the Community;

2. Whether the Claimant has a cause of action;

3. Whether this Court has jurisdiction over acts that took place before the coming into force of the Protocol;

4. Whether the Reference is time barred in accordance with Article 30(2) of the Treaty;

5. Whether the provisions of Article 54(2) of the Common Market Protocol extended the jurisdiction of this honourable Court for settlement of cross-­‐border disputes;

6. Whether the Respondents are in breach of the provisions of Articles 27 and 151 of the Treaty for the Establishment of the East African Community as read together with the provisions of Article 54 of the Protocol on the Establishment of the East African Common Market by failing to honour or act in accordance with the Bank Guarantee dated 29th October, 2003 as amended on 23rd October, 2008;

7. Whether the Claimant is entitled to the Prayers in the Reference dated on 20th August, 2010.

DETERMINATION

In the determination of the issues above, we have read and have taken note of the following documents:

1.   Reference No. 06 of 2010 itself;

2.   The Responses to the Reference together with the affidavits in support of, and opposition to the Reference;

3.   The Rejoinder to the Reply to the Responses;

4.   Applicant’s written submissions filed on 30th January, 2013;

5.   First Respondent’s written submissions filed on 1st March, 2013;

6.   2nd and 3rd Respondents’ written submissions filed and lodged on 27th March, 2013;

7.   Applicants’ rejoinders to the Respondents’ written submissions.

We have also taken into account relevant annexures namely, the contract between Parties for erection of the “Workers House” in Kampala, Uganda, the different Rulings and Judgments of the National Courts in Uganda, the Arbitral Award and the Bank Guarantee.

PRINCIPLES OF INTERPRETATION OF THE TREATY

This Court in Modern Holdings (EA) Ltd versus Kenya Ports Authority, EACJ Reference No.1 of 2008 stated inter alia that:

“The Treaty being an International Treaty among five Sovereign States, namely, Burundi, Kenya, Rwanda, Tanzania and Uganda is subject to the International Law on interpretation of Treaties, the main one being ‘The Vienna Convention on the Law of Treaties.”

The Court in stating so relied on the principle set forth in Article 31(1) of the Vienna Convention on the Law of Treaties as a general principle to interprete the EAC Treaty. Article 31(1) of the said Convention provides that:

“A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose”.

This principle shall guide us in the determination of the issues arising out of the Scheduling Conference and which are set out above.

ISSUE NO.1: Whether this Reference is properly before this Court as against the 1st and 3rd Respondents within the meaning of Article 30(1) of the Treaty, they being neither Partner States nor Institutions of the Community


Article 30(1) of the Treaty reads as follows:

“Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an Institution of the Community on grounds that such an Act, regulation, directive, decision or action is unlawful or an infringement of the provisions of this Treaty.” (Emphasis added)

“Partner State” is defined by Article 1 of the Treaty as “The Republic of Uganda, the Republic of Kenya, the Republic of Tanzania and any other country granted membership to the Community under Article 3 of this Treaty.” Burundi and Rwanda later became full members of the EAC on the 1st July, 2007.

The word “Institution” is defined in Article 9(2) as follows: “The Institutions of the Community shall be such bodies, departments and services as may be established by the Summit.” Article 9(3) then designates existing Institutions as such. They include the East African Development Bank and the Lake Victoria Fisheries Organisation.

Neither the 1st nor the 3rd Respondent are a Partner State or an Institution established by the Summit and they cannot, therefore, be properly sued in that capacity before this Court because they are not bound by the Treaty or any of its Protocols.

In Anyang’ Nyong’o and others versus the Attorney General of the Republic of Kenya and others, Ref. No.1 of 2006, this Court stated inter-­‐alia as follows:

“A reference under Article 30 of the treaty should not be construed as an action in tort brought by a person injured by or through the misfeasance of another. It is an action to challenge the legality under the Treaty of an activity of a Partner State or of an Institution of the Community. The alleged collusion and cognizance, if any is not actionable under Article 30 of the treaty.”

We agree wholly and we further note that in Modern Holdings (E.A.) Limited versus Kenya Ports Authority (Supra) the Court stated that the Kenya Ports Authority was created by the Republic of Kenya and not by the Summit and the mere fact that it rendered services to East African Partner States and its Citizens did not ipso facto make it an Institution of the Community.

Again we adopt those findings and, therefore, it is our holding that the 1st and 3rd Respondents were improperly sued in the Reference and all the complaints against them are dismissed. We shall address the issue of costs later.

ISSUE NO.2: Whether the Claimant has a Cause of Action

Having struck out the 1st and 3rd Respondents from the Reference, the question that remains to be answered is the substance of issue No.2 i.e. whether there is a cause of action against the 2nd Respondent, the only remaining Respondent in the Reference.

It is agreed that the 2nd Respondent can in proper circumstances be sued in the name of the Republic of Uganda which is a Partner State. It is alleged by the Claimant that the Republic of Uganda has failed to protect its cross-­‐border investment contrary to Articles 5, 127 and 151 of the Treaty as read with Articles 29 and 54(2) of the Common Market Protocol. In his submissions, Mr. Muthomi stated that the failure is embodied, inter-­‐alia in:-­‐

(a) the wrongful termination of the building contract by the NSSF;

(b) the refusal by the NSSF to pay for work done;

(c) the continued confiscation of the Claimant’s plant, machinery and tools of trade;

(d) the failure and/or refusal by the 1st and 3rd Respondents to honour theGuarantee inspite of Rulings and Judgments of the High Court and the Court of Appeal made in favour of the Claimant; and

(e) failure and/or denial of justice, as evidenced by:-­‐

(i) the failure of the justice system of Uganda to finally resolve the dispute between the Claimant and the NSSF expeditiously (at any rate within 90 days as required under the Arbitration Law then in force). That to this end, it is agreed that the Claimant’s grievance has lagged before the Ugandan justice system for more than fourteen years;

(ii) unjustifiable attempts to deprive the Claimant of the benefit of the arbitral award and decree of the High Court and;

(iii)the recording of a fraudulent consent (purportedly agreed to by the Claimant) in the Supreme Court.

It is obvious to us that all the above alleged failures on the part of the Republic of Uganda must be looked at in the context of the whole Reference. The substratum of the Reference is the Bank Guarantee dated 29th October 2003 as amended on 23rd October, 2008.

But, does the Guarantee now exist? It does not. When the Reference was filed, the Claimant was relying wholly on the decision of the Arbitrator (Justice (Rtd) Torgbor) and the Appeals in the High Court and Court of Appeal of Uganda in favour of the Claimant. By the conclusion of the hearing of the Reference, however, the Supreme Court of Uganda had rendered its final decision regarding both the Arbitral and Court proceedings. In a nutshell, all the decisions were set aside and the initial suit filed by the Claimant HCCS No. 1255 of 1998 was ordered to proceed to trial on the merits. We do not know whether the trial has began but what is clear to us is this; once the proceedings aforesaid were set aside, the Bank Guarantee ceased to exist and the Claimant, by relying on it is clutching onto thin air only. With respect, once there is no lawful Bank Guarantee before the Court, then the whole Reference must collapse and the Claimant’s remedy lies in pursuing HCCS No.1255 of 1998 to conclusion.

Of course, we are alive to the long period the matter has taken and the obvious physical and mental strain the Claimant’s Directors have had to endure, but sometimes the road to justice can be long and arduous.

In the event and without belabouring the point, all the issues raised by the Claimant cannot be properly adjudicated by this Court because there is no live dispute before it. There is in any event no cause of action against the 2nd Respondent.

ISSUE NO.3: Whether this Court has Jurisdiction over acts that took place before the coming into force of the Protocol


The fact complained of is the failure to honor the Bank Guarantee by the 1st and 3rd Respondents.

It is not in dispute that the alleged breach of contract by those Respondents, the Arbitral proceedings and Award, the orders of the High Court and Court of Appeal and the issuance of the Bank Guarantee occurred before 1st July, 2010; the date of the coming into force of the Common Market Protocol. It is the contention of the Claimant that the issue as to whether this Court has jurisdiction over acts that occurred before the coming into force of the said Protocol has been overtaken by events since the Appellate Division had directed, in its Ruling dated 16th March, 2012 that the First Instance Division should proceed and “determine the merits of the Reference before the Court.” The other submissions of the Claimant can be summarized as follows:

i. that the Respondents are guilty of continuing breach of their obligations under the Guarantee and, therefore, the issue of retroactivity does not arise because it is expressed that the liability of the First Respondent should be extinguished by payment to the Registrar of the High Court of the decretal amount.

ii. The rule as to non-­‐retroactivity of Treaties does not apply where “a different intention appears from the Treaty or is otherwise established.”

iii. Although the Common Market Protocol came into force on 1st July, 2010,Article 151(4) of the Treaty indicates that once a protocol is signed and ratified it becomes an “integral part” of the Treaty and it follows that the Common Market Protocol should be read as “an Integral part” of the Treaty

The response by the Respondents on this issue is that:-­‐

1.A Treaty cannot apply to acts that took place before it comes into force unless it is expressly stated so or an intention can be inferred from its provisions.

2. No provision can bind a Party in relation to any act or fact which occurred or any situation which ceased to exist before the entry into force of the Treaty according to Article 28 of the Vienna Convention on the Law of Treaties.

3. The Principle of non-­‐retroactivity of a treaty has been discussed by this Court in Emmanuel Mwakisha Majawasi and 748 Others Vs. the Attorney General of the Republic of Kenya (Appeal No.4 of 2011) and it was held that the Treaty cannot apply retroactively unless it derives explicitly from the provision of the Treaty itself or it may be implicitly deduced from the interpretation thereof.

Further, that a plain reading of Article 55 of the Protocol would show that the Treaty cannot apply events prior to its ratification. Indeed, Article 55 provides that the Protocol shall enter into force after the deposit of instruments of ratification with the Secretary General by all the Partner States.

That if it was the intention of the Partner States to make the Protocol retroactive, they should have explained it clearly and unambiguously, but nothing in it points to such an intention and, therefore, the Protocol cannot apply to the Claimant’s situation regarding the enforcement of the Bank Guarantee which was issued on 29th October, 2003 and amended on 23rd October, 2008 while the Protocol came into effect on 1st July, 2010.

For our part, we deem it necessary for avoidance of doubt, to reproduce the contents of Article 151(4) of the Treaty and Article 55 of the Protocol.

Article 151(4) reads as follows: “The Annexes and Protocol to this Treaty shall form an integral part of this Treaty.”

It cannot be gainsaid, therefore, that the Common Market Protocol constitutes an integral part of the Treaty.

Article 55 of the Protocol states that: “The Protocol shall enter into force upon ratification and deposit of instruments of ratification with the Secretary General by all the Partner States.”

None of the Parties to this Reference has challenged the date of the entry into force of the Common Market Protocol i.e. 1st July, 2010.

The bone of contention between Parties is simply whether the Protocol has retroactive application and we have said elsewhere above that we shall in interpreting the Treaty and especially Articles 151(4) and 55, rely on the principles set out in the Vienna Convention on the Law of Treaties.

The relevant Article of the Vienna Convention is Article 28 which addresses non-­‐ retroactivity of Treaties.

It reads as follows: “Unless a different intention appears from the Treaty or is otherwise established its provisions do not bind a Party in relation to any act or a fact which took place or any situation which ceased to exist before the date of the entry into force of the Treaty with respect to that Party.”

The reference to the Treaty in this case must be a reference to the Common Market Protocol and the date that it came into force.

Furthermore, Article 31 of the Vienna Convention creates the threshold rule of interpretation. It states that:

“1. A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a Treaty shall comprise in addition to the text, including its preamble and annexes:

(a) any agreement relating to the Treaty which was made between all Parties in convention with the contention of the Treaty; (b) any instrument which was made by one or more Parties in connection with the conclusion of the Treaty and accepted by the other Parties as an instrument related to the Treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the Parties regarding the interpretation of the Treaty or the application of its provisions; (b) any subsequent practice in the application of the Treaty which establishes the agreement of the Parties regarding its interpretation; (c) any relevant rules of international Law applicable in relation between Parties.

4. A special meaning shall be given to a term if it is established that the Parties so intended.”

We are duly guided and after careful reading and understanding of the above provisions nothing can show that the framers of the Protocol had any intention of its retroactive application. In a similar case, the Appellate Division of this Court held that:

“……. The Court considers the situation of the ex-­employees of the defunct Community to have ceased to exist at the Community level from 14 May, 1984. That date was obviously before the entry into force of the EAC Treaty --- We, therefore, agree with the Court below that the Principle of non retroactivity is relevant to the instant case.” (See Appeal No.4 of 2011 in the Reference Emmanuel Mwakisha Mjawasi and 748 Others versus the Attorney General of the Republic of Kenya.)

The same holding applies to a protocol and indeed without such retroactivity, the Protocol on the Establishment of the East African Community Common Market cannot apply to the acts that took place before 1st July, 2010 and this Court cannot have jurisdiction to determine the issue as framed.

In Appeal No.4 of 2011 cited elsewhere above in this case, the Appellate Division resolved the issue of the nexus between non-­‐retroactivity and the question of jurisdiction as follows:

“…………. Where then, one may ask, did the Court derive its jurisdiction, since the Treaty which normally confers the jurisdiction on the Court did not apply? Non retroactivity is a strong objection. When it is upheld, it disposes off the case there and then. As non-retroactivity renders the Treaty inapplicable forthwith, what else can confer jurisdiction on the Court? Non-retroactivity of jurisdiction.”

That Court even went further in Appeal No.3 of 2011 Attorney General of the United Republic of Tanzania vs. African Network for Animal Welfare when on the question of jurisdiction, it stated that:

Jurisdiction is a most, if not the most fundamental issue that a Court faces in any trial (sic). It is the very foundation upon which the judicial edifice is constructed; the fountain from which springs the flow of the judicial process. Without jurisdiction, a Court cannot take even the proverbial first Chinese step in its judicial journey to hear and dispose of the case.”

We are wholly guided by the above finding. Moreover, we share the view that:

“A Court cannot give itself jurisdiction in a case otherwise outside its jurisdiction on the ground that it would be for the convenience of Parties and witnesses. The Plaintiff must state the facts on which the Court is asked to assume jurisdiction”. See Civil Procedure & Practice in UGANDA by M. SSEKAANA & S.N. SSEKAANA at P.7.

In any functioning legal system, Judges are crucially bound by the Law and Rules that they are called upon to apply. Consequently, the more they distance themselves from the Law as set down by those charged with legislative authority and the more they come up with circumstantial solutions that attract their own tastes and preferences, the more they jeopardize the authority of their judgments which is akin to judicial tragedy. With the greatest respect to the Claimant, once we have addressed issues Nos. 1, 2 and 3 in favour of the Respondents, the Reference must collapse and any determination of issues Nos. 4, 5, 6 and 7 becomes wholly academic. We decline to take that path.

In conclusion, we find no merit in the Reference before us and the same is hereby dismissed.

As to costs, the Claimant has been seeking justice for long and is yet to finalise HCCS 1255 of 1998 in Uganda which was the original case in this dispute. We deem it inappropriate to penalize it with costs and so, each Party shall bear its own costs.

It is so ordered.

Dated, Delivered and Signed at Arusha this 2nd Day of September, 2013

 

….…………………..……………..

JOHNSTON BUSINGYE PRINCIPAL JUDGE

 

….………………………………….

JEAN BOSCO BUTASI JUDGE

 

….…..…………………………….

ISAAC LENAOLA

JUDGE

Author
Judgment date
Case number
Reference 5 of 2011
Court name
East African Court of Justice
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Author
Judgment date
Case number
Reference 1 of 2012
Court name
East African Court of Justice
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IN THE EAST AFRICAN COURT OF JUSTICE FIRST INSTANCE DIVISION AT ARUSHA

(Coram: Johnston Busingye, PJ,M.S. Arach-Amoko, DPJ, John J.Mkwawa,J,

Jean B.Butasi, J,Isaac Lenaola,J.)

REFERENCE NO. 01 OF 2012

 

IN THE MATTER OF A REFERENCE UNDER ARTICLE 30 (1) OF THE TREATY FOR THE ESTABLISHMENT OF THE EAST AFRICAN COMMUNITY

AND

IN THE MATTER OF THE 13TH EAST AFRICAN COMMUNITY SUMMIT DIRECTIVES

BETWEEN

TIMOTHY ALVIN KAHOHO..…………………………………. APPLICANT

AND

THE SECRETARY GENERAL OF

THE EAST AFRICAN COMMUNITY ……………………….. RESPONDENT

 

DATE: 17TH MAY 2013


JUDGMENT


Introduction

1. Timothy Alvin Kahoho, (hereinafter “the Applicant”) is a citizen of the United Republic of Tanzania and a journalist by profession. In the Reference premised on Articles 23(1)and (3),27(1) and 30 (2) of the Treaty for the Establishment of the East African Community (hereinafter, “the Treaty”), as well as Rules 24 of the East African Court of Justice Rules of Procedure, 2010, he has sought the following Orders:

(a) A declaration that the Summit had grossly breached the Treaty in particular Articles 6, 7 and 123 (6) of the Treaty, by mandating the Secretariat to inter alia;

(i) Produce a road map for establishing and strengthening the institutions identified by the Team of Experts as critical for the functioning of the Customs Union, Common Market and Monetary Union.

(ii) Formulate an action plan for the purposes of operationalising the other recommendations in the report of the Team of Experts, and

(iii) Propose an action plan on, and a draft model of, the structure of the East African Political Federation for consideration by the Summit at its 14th Ordinary Meeting.

(b) The Summit approved the protocol on Immunities and Privileges for the East African Community, its organs and institutions for conclusion in breach of Articles 73 and 138 of the Treaty.

(c) Further, a declaration that the Summit has no mandate under the Treaty to exclude Partner States and the Council from performing functions vested to them by the Treaty and which have an impact in the integration process.

(d) That if ever the Secretariat has already done the mandated functions under items (a) (i) to (iii) and hereto, this Honorable Court be pleased to declare them null and void.

(e) Costs of this Application

(f) Any other relief(s) that this Court deems fit to grant.

Factual Background

2. The uncontested facts in this Reference are that on 30th November 2011, the Summit of the East African Community (hereinafter “the Summit”) issued a Communiqué after its meeting in Bujumbura, Burundi, and of interest to this matter are paragraphs 6 and 10 where it stated as follows:

“6.The Summit approved the …Protocol on Immunities and Privileges for the East African Community, its organs and Institutions for conclusion” AND

“10.The Summit considered and adopted the Report of the Team of Experts on fears, concerns and challenges on the Political Federation. The Summit noted that the Team of Experts had studied and made recommendations for addressing the fears, concerns and challenges. The Summit mandated the Secretariat to:-

I. Produce a Road Map for establishing and strengthening the Institutions identified by the Team of Experts as critical to the functioning of a Customs Union, Common Market and Monetary Union;

II. Formulate an action plan for purposes of operationalising the other recommendations in the Report of the Team of Experts; And

III. Propose an Action Plan on, and a Draft Model of the structure of the East African Political Federation for consideration by the Summit at its 14th Ordinary Meeting.”

3. It is the language, tenor, and import of the above parts of the Communiqué that triggered the Reference under consideration.

Case for the Applicant

4. The Applicant appeared in person and ably argued his case as follows:

That the Summit contravened Articles 73 and 138 of the Treaty when it directed the conclusion of the Protocol on Immunities and Privileges because principally, in his view, those are not areas of co-operation to which a Protocol can be concluded within the meaning of Article 151 of the Treaty.

For avoidance of doubt, Article 73 of the Treaty provides as follows:

1. Persons employed in the service of the Community:

(a) Shall be immune from civil process with respect to omissions or acts performed by them in their official capacity; and

(b) Shall be accorded immunities from immigration restrictions and alien registration.

2. Experts or consultants rendering services to the Community and delegates of the Partner States while performing services to the Community or while in transit in the Partner States to perform the services of the Community shall be accorded such immunities and privileges in the Partner States as the Council may determine.”

Article 138 provides as follows;

“1. The Community shall enjoy international legal personality.

2. The Secretary General shall conclude with the Governments of the Partner States in whose territory the headquarters or offices of the Community shall be situated, agreements relating to the privileges and immunities to be recognized and granted in connection with the Community.

3. Each of the Partner States undertakes to accord to the Community and its officers the privileges and immunities accorded to similar international organizations in its territory.”

Article 151 provides that;

1.The Partner States shall conclude such Protocols as may be necessary in each area of co-operation which shall spell out the objectives and scope of, and institutional mechanisms for co-operation and integration.

2. Each Protocol shall be affirmed by the Summit on the recommendation of the Council.

3. Each Protocol shall be subject to signature and ratifications of the parties hereto.

4. The annexes and Protocols to this Treaty shall form an integral part of this Treaty.”

5. It is the Applicant’s case that reading all the above provisions together, the issue of immunities and privileges cannot be an area of co-operation as at no point has the Council of Ministers recommended or effected such a decision. That previously, all Protocols signed by the Parties to the Treaty confined themselves to the areas of co- operation as spelt out in Articles 74 – 131 of the Treaty and anything outside those Articles cannot properly be an area of co-operation.

6. The Applicant then made the point that having read the Draft Protocol on Immunities and Privileges, he is more than convinced that the issues of “the staff and workers of the Community” cannot be raised to a level akin to an area of co-operation.

7. On the issue whether the Summit could properly mandate the Secretariat to undertake any of the functions set out in paragraph 10 of the Communiqué, the Applicant argued that such an act was a clear violation of Articles 6, 7 and 123 (6) of the Treaty because the issue of the establishment of a Political Federation of the Partner States can only be initiated by the Summit which then directs the Council to undertake the process as is the language of Article 123 (6). That an attempt at circumventing that process by mandating the Secretariat to propose an Action Plan and Draft Model for the Political Federation would be a violation of the Treaty.

8. In addition to the above, the Applicant, at the hearing of the Reference, stated that at its 14th Summit, the Summit indeed realized its “error” in the 13th Summit and directed the issue of the process leading to a Political Federation to the Council but even then, it had failed to initiate the same and so a violation of Article 123 (6) continued.

9.In furtherance of the above argument, the Applicant went on to state that the process towards a Political Federation cannot be a preserve of the Council or Summit but must of necessity involve all citizens of the Partner States. In support of this position, he quoted an excerpt from the book, ‘‘East African Federation: Blessing or Blight”,by Harid Mkali, Ivydale Press, London 2012 ,where the author quoted the late Mwalimu Julius Nyerere, Founding Father of The United Republic of Tanzania as stating in a pamphlet published on 16th October 1968 and titled Freedom and Development”:

No person has the right to say, ‘I am the people’. No Tanzanian has the right to say ‘I know what is good for Tanzania and the others must do it.’ …so to take Tanzania into Federation without a Referendum is to say that the President and the Cabinet know ‘what is good for Tanzania and the others must do it’. This federation is potentially highly toxic for Tanzania, a fact that needs to be squarely faced by all concerned and that is why the consent of all Tanzanians is crucial – lest we blame one another tomorrow.”

10. The point made by the Applicant is that to fast-track the Political Federation without finalizing the Customs Union, Common Market and Monetary Union and without consulting citizens of the Partner States would be an act of unprecedented violation of the Treaty by the Summit.

11. The Applicant raised two other issues in submissions which are pertinent; the first is the argument that the issue of Immunities and Privileges can only be settled by conclusion of Agreements by the Secretary General of the Community in that respect with Partner States and not by creation of a Protocol.

12. Secondly, that as a citizen of a Partner State, he was deeply troubled by the actions of the Summit aforesaid and was entitled to general and special Damages for the pain that he suffered, including developing high blood pressure.

Case for the Respondent

13. The Respondent’s answer to all the issues raised above was that the Reference was completely misguided and that the Applicant had failed to understand the intentions of the framers of the Treaty upon a clear reading of Articles 73, 138 and 151 relating to the Draft Protocol on Immunities for the following reasons;

i) That although a number of Headquarters’ Agreements have been concluded by the Respondent pursuant to Article 138 (2) of the Treaty, inconsistencies were noted from one Partner State to another and after a series of meetings, the Sectoral Council on Foreign Policy Coordination proposed to the Council of Ministers that a Protocol was necessary to provide standard guidelines that would uniformly cater for the employees of the Community, its Organs and Institutions , particularly on matters of immunities and privileges to be granted to them in Partner States.

ii) That the negotiation and conclusion of the proposed Protocol on Immunities and Privileges for the Community, its Organs and Institutions was meant to create a common platform to enable Partner States coherently implement Articles 73 and 138 as read with Article 151 of the Treaty.

iii) That the argument that no areas of co-operation can be raised under Article 73 and 138 aforesaid is unsustainable because the issue was raised within the meeting of the Attorneys-General of the Partner States held on 2nd November 2011 and it was agreed that the need to establish a common platform to guide the issues of status, immunities and privileges signed by the Secretary General with the Governments of Partner States was important and sufficient to warrant a Protocol being concluded. Further, that the proposed Protocol would fall within Articles 5(3), (h), 131 and 151 of the Treaty as enabling provisions for Partner States to advance their integration and that Article 131 was a general co-operation clause which could be invoked from time to time when new areas of co- operation emerged.

14. On the question of Political Federation and the processes leading to it, the case for the Respondent is that the mandate given to the Secretariat to propose an action plan for consideration by Summit was not a contravention of Articles 6, 7 and 123 (6) of the Treaty but were in fact consistent with the same.

15. That the initiation of the said process was a matter undertaken by the Summit which then directed the Council to operationalise it in line with the Treaty. Council in compliance thereof, appointed a Team of Experts towards that end at its 20th Meeting held on 19th – 26th March 2010 and the directive at the 13th Summit was only a follow up to a process that had long been in place and the 13th Summit was not the meeting at which the same was initiated.

16. Further, that the functions of the Secretariat are set out in Article 71 of the Treaty and that the wording of that Article is wide enough to cover the implementation of any directive given to it by the Summit, including the one issued in the Communiqué under attack.

17. It is also the Respondent’s contention that Article 123(6) of the Treaty is complimentary to, and not in conflict with, Article 71, and that the latter does not oust the former. That taken in that context, it “would be strange to expect the Council to execute its demanding assignments relating to integration other than through the Secretariat which is seized with both the technical and other relevant capabilities that facilitate the Council.” It is also contended in that regard that in exercising its mandate under the Treaty, [Council] relies entirely on the Secretariat to do so and as such the fears and prayers of the Applicant are alarmist, misconceived and generally designed to abuse Court process.”

18. Lastly on this issue, the Respondent has urged the point that all Partner States were aware that at an appropriate time after the Secretariat had completed its assignment, the Partner States would negotiate the proposed institutions relevant for Political Federation or any other matters ,and neither the Summit nor the Secretariat made any suggestion that such negotiations are not necessary. That in furtherance of that position, the Summit at its 14th Summit, contrary to the Applicant’s assertion, directed the Council to report progress to the 15th Summit on all matters forming the subject of the Reference herein.

19. That therefore, the Reference, being devoid of merit, should be dismissed with costs.

The Scheduling Conference

20. On 15th January 2013, a Scheduling Conference was held and the Parties agreed that the following issues would be the ones to be determined by the Court:

i) Whether the 13th Summit decisions as set out in paragraph 6 of its Communiqué issued on 30th November 2011 in the Republic of Burundi approving the Protocol on Immunities and Privileges contravened Articles 73, 138 and 151 of the Treaty;

ii) Whether the 13th Summit of the Heads of States’ decision to mandate the Secretariat to undertake the functions stated in paragraph 10 of its Communiqué issued on the 30th November 2011 at Bujumbura in the Republic of Burundi was in contravention of Articles 6, 7 and 123 (6) of the Treaty.

iii) Whether the process towards the establishment of a Political Federation of the Partner States is an exclusive preserve of the Council to which the Secretariat cannot contribute.

iv) Whether the conclusion of Protocols is only permissible where the Treaty specifically provides for areas of co-operation.

v) Whether the Applicant is entitled to the prayers sought?

Determination

21. We have read the following documents on record:

i) The Reference titled “Application dated 12th January 2012”

ii) The Response to Reference together with the Affidavit in support both dated 28th February 2012.

iii) The Reply to the Response dated 20th March 2012

iv) The Response to the Reply to the Response dated 8th May 2012.

v) Applicant’s written submission filed on 13th February 2013.

vi) Respondent’s written submissions filed on 14th March 2013.

vii) Applicant’s rejoinder to the Respondent’s written submissions filed on 15th April 2013 .

22.We have also taken into account the annextures to the documents placed before us including the Communiqué under attack, the Communiqué issued after the 14th Summit, the Report of the 11th Meeting of the Sectoral Council on Legal and Judicial Affairs, the Report of the 20th Meeting of the Council of Ministers, the draft Protocol on Immunities and Privileges of the East African Community, its Organs and Institutions, the Headquarters Agreement between the Government of Kenya and the Community for the Lake Victoria Basin Commission and the Headquarters Agreement between the Government of the United Republic of Tanzania and the Secretariat for the Tripartite Commission for co-operation between the United Republic of Tanzania, the Republic of Kenya and the Republic of Uganda.

Principles of Interpretation of the Treaty

23. In Modern Holdings (E.A) Limited vs Kenya Ports Authority, EACJ Reference No. 1 of 2008, this Court stated inter-alia that “The Treaty being an international Treaty among five sovereign States, namely; Kenya, Uganda, Tanzania, Rwanda and Burundi, is subject to the international law on interpretation of treaties, the main one being ‘The Vienna Convention on the Law of Treaties’ (VCLT)”

The Court then proceeded to invoke Article 31(1) of the Vienna Convention on the Law of Treaties which sets out the general rule of interpretation as including the following factors;

“A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

24. The above principle is what we shall use as a guide in determining the four principal issues placed before us for resolution.

25. All the above documents together with the Treaty will also form the basis for our opinion which we now render as follows:-

Issue No. 1 – whether the 13th Summit decision as set in paragraph 6 of its Communiqué issued on 13th November 2011, in the Republic of Burundi, approving the Protocol on Immunities and Privileges contravened Articles 73, 138 and 151.

26. We have elsewhere above reproduced Articles 73, 138 and 151. To answer the Applicant’s complaint with regard to paragraph 6 of the Communiqué, one must necessarily begin by defining a “Protocol”. Article 1 of the Treaty defines it in the same language as Black’s Law Dictionary, Ninth Edition, where it is defined as a treaty amending and supplementing another treaty”. Wikipedia goes further to explain that it is a “rule on how an activity should be performed especially in the area of diplomacy.”

27. In the context of the issue at hand, the Respondent has explained that for Articles 73 and 138 to be coherently implemented”, a Protocol was required under Article 151. Article 151 (1) specifically provides that Protocols shall be concluded as may be necessary in each area of co-operation and the Protocol shall spell out the objectives of, and institutional mechanisms for co-operation and integration.

28. Looking at the definition of a Protocol as above together with Article 151 of the Treaty, it is obvious that the conclusion of any Protocol is at the instance and discretion of the Summit where it deems such an action necessary to achieve the objectives of the Community. That is why Article 151(4) specifically provides that once concluded ,a Protocol becomes an integral part of the Treaty. Integral means that it becomes a necessary part of the Treaty and supplements it in the operationalisation of the area of co-operation that it is meant to address.

29. We heard the Applicant to be arguing that privileges and immunities are not areas of co-operation and that under Article 138, only Agreements with Partner States can address those issues. With respect, we disagree with him. We say so because he has taken a very narrow view of what the Treaty sets out as areas of co-operation.” He has also completely failed to note that Chapter Twenty Seven of the Treaty is headed, “Co-operation in other fields” and Article 131, the only Article in that Chapter, is titled, Other Fields”. Pausing there for a moment, it is obvious to us that the framers of the Treaty were aware that it would be wrong, nay naïve, to presume that on 30th November 1999, when the Treaty was ratified, all areas of co-operation would be visible and clearly demarcated. Article 131 was then enacted in answer to that difficulty and it is in the following words;

 “1. Subject to the provisions of this Treaty, the Partner States undertake to consult with one another through appropriate institutions of the Community for the purpose of harmonizing their respective policies in such other fields as they may from time to time, consider necessary or desirable for the efficient and harmonious functioning and development of the Community and the implementation of the provisions of the Treaty.

2. For purposes of paragraph 1 of this Article, the Partner States may take in common such other steps calculated to further the objective of the Community and implementation of the provisions of the Treaty.” (Emphasis added).

30. To our minds, Article 131 must be read together with Articles 73 and 138 for a holistic appreciation of the reason why a Protocol on Immunities and Privileges is necessary. The reasons given by the Respondent include the need to harmonise and create a common platform to guide the “issue of status immunities and privileges in Host Agreements signed by the Secretary General with Governments of the Partner States relating to EAC Organs and Institutions.” These reasons are not alien to the need for a harmonious, functioning and developing Community under Article 131 aforesaid.

31 .We have had a look at the Proposed Protocol on Immunities and Privileges of the East African Community, Organs and Institutions as well as the Headquarters Agreements elsewhere mentioned above. The Proposed Protocol has the following structure:

a) Definitions

b) Objectives

c) Scope of Arrangement

In the preamble, it is partly stated as follows;

that it is desirable to conclude a Protocol by which the Partner States undertake to accord the Community, its organs, institutions and persons employed in different capacities in its service with such immunities and privileges as are accorded to similar international organizations in the territories of the Partner States.”

32.The language, structure and import of the Proposed Protocol, in our view, is in line with the harmonization, functioning, development and furtherance of the objectives of the Community and the implementation of the provisions of the Treaty which is what one can discern from reading Articles 73, 131 and 138 in good faith and we find no inconsistencies therein.

33.Before we conclude the determination of Issue No. 1, we must point out that the execution of any Agreement under Article 138 (2) is not an ouster of the provision for conclusion of a Protocol under Article 151 where the situation so demands. The Treaty provisions must be read as complimentary to each other and none (as is the Applicant’s line of argument) should be seen as independent and in conflict with another. To argue otherwise, would lead to a legal absurdity and a negation of the principle that the Treaty must be interpreted as a whole and not selectively to suit a set purpose.

34. One other issue we must clarify is the intent and meaning of co-operation in the context of the Treaty. We heard the Applicant to argue that the issue of immunities and privileges cannot be one amounting to co-operation because it is personal to the employees of the Community. “Co-operation” is defined in Black’s Law Dictionary (supra) as the voluntary coordination action of two or more countries occurring under a legal regime and serving a specific objective.”

35. Taken in the above context , the legal regime is the Treaty and the specific objective of the Treaty is the eventual full integration of the Partner States in both political and economic terms. In furtherance of that objective, The Proposed Protocol in Article 2 states as follows;

“The objectives of this Protocol are to provide a basis upon which –

a) property and assets of the Community shall be protected from every form of legal process;

b) funds of the Community shall be protected from the Partner States’ financial controls, regulations or moratorium of any kind.;

c) immunities and privileges shall be accorded to persons in the service of the Community”.

36. Article 138 (1) provides that “the Community shall enjoy international legal personality” and therefore Article 2 (a) and (b) of the Proposed Protocol address that provision while Article 2 (c) above is in furtherance of Article 138 (2) and (3) which the Applicant latched onto in his submissions.

37. It is obvious without saying more, that the Proposed Protocol is not wholly about staff immunities and privileges and that Article 138 can clearly create an area of co- operation to which a Protocol can properly be concluded under Article 151 of the Treaty. Even if it were, we do not find that such a factor, alone, would constitute an inconsistency with the Treaty.

38. In conclusion on this issue, we must state that Article 131 was enacted to reduce frequent amendments of the Treaty whenever a new area of co-operation arises and which cannot otherwise be managed outside existing provisions of the Treaty. The issues arising from Article 138 aforesaid fit that reasoning perfectly.

39. For the above reasons, our answer to Issue No. 1 is in the negative.

Issue No. 2 – whether the 13th Summit of Heads of State Decision to mandate the Secretariat to undertake the functions stated in paragraph 10 of its Communiqué, that was issued on 13th November 2011 in Bujumbura was in contravention of Articles 6, 7, and 123 (6) of the Treaty.

40. Elsewhere above we have set out the contents of paragraph 10 of the Communiqué and one of the issues that the Secretariat was mandated to do was to propose an action plan on, and a draft model of the structure of the East African Federation for consideration by the Summit at its 14th Ordinary Meeting. That matter is also partly to be covered in the determination of Issue No. 3 later in this judgment.

41. For purposes of Issue No. 2, we shall limit ourselves to the issue of the interpretation to be given to Article 123 (6) and the role of the Secretariat in the Community. In that regard, it is important to note that Article 123 (6) provides as follows;

“The Summit shall initiate the process towards the establishment of a Political Federation of the Partner States by directing the Council to undertake the process’’.

42. The Applicant’s argument in this regard is that by mandating the Secretariat to “propose an action plan” and a draft model of the structure of the East African Political Federation”, the Summit acted in breach of the operational principles of the Community (Article 7) and the “General undertaking as to implementation” of the Treaty (Article 8) as well as specifically Article 123 (6) aforesaid.

43. We agree with the Respondent that the Applicant’s argument on this issue is misguided. We say so, with respect, because as shall be seen later, initiation of the process of Political Integration and eventual Political Federation was not made at the 13th Summit, but much earlier. That, therefore, the mandate given to the Secretariat was in furtherance of a process that had been in place long before the Bujumbura

Communiqué which then leads to the question: what is the relationship of the Summit vis-à-vis the Secretariat? Article 71 of the Treaty sets out the functions of the Secretariat and of relevance to the issue at hand and as properly argued by the Respondent, are the following:

i) Article 71 (1) (b) –the initiation of studies and research related to and the implementation of programmes for the most appropriate and expeditious and efficient ways of achieving the objectives include “widening and deepening co-operation among Partner States” and the establishment in accordance with the provisions of the Treaty, a Customs Union, a Common Market, and subsequently a Monetary Union and a Political Federation.

44. All the above objectives are also set out at paragraph 10 of the Communiqué and the Secretariat was neither initiating them nor was it undertaking the actual processes as alleged by the Applicant. It was merely mandated to do technical work which under the Treaty provisions quoted above, is entirely in its province.

ii) Article 71 (1) (d) – the undertaking either on its own initiative or otherwise investigations, collection of information or verification of matters relating to any matter affecting the Community that appears to it merit examination.

45. A clear reading of paragraphs 10 (a) and (b) of the Communiqué would show that the Secretariat was actually examining and working from drafts prepared by a Team of Experts and verifying and harmonizing them towards the functioning of the Customs Union, Common Market and Monetary Union. In our humble view, that mandate does not fall outside Article 71 of the Treaty.

iii) Article 71 (1) (l) – the responsibility for the implementation of the decisions of the Summit and the Council.

46. This responsibility is extremely wide and covers all directives and mandate issued by and conferred by the Summit on the Secretariat and this is the critical link between the Summit and the Secretariat. The latter, functionally, is subservient to the former and this is the context in which the mandate contained in the Communiqué must be looked at. In addition to this, Article 11 which relates to the functions of the Summit provides at Article 11(1) that:

 “The Summit shall give general directions and impetus as to the development and achievement of the objectives of the Community.”

The directions given to the Secretariat contained in paragraph 10 aforesaid are well within the mandate of the Summit and conversely this is also within the Secretariat’s mandate to receive and act on those directions and we see no breach of the Treaty by either of the two Organs of the Community.

47. We also agree with the Respondent that the directions given were not an end in themselves; the Secretariat was also directed to present all the draft proposals for consideration by the Summit at its 14th Ordinary Meeting .At that Meeting, the drafts proposals would only become useful if the Summit adopted them in which event they would become its documents and not of any other Organ.

48. While addressing this issue, it behoves us to address in a few words the critical role that the Secretariat plays in the affairs of the Community, generally. In the book, The Drive Towards Political Integration in East Africa,” Ed. Isabelle Wafubwa and Joseph Clifford Birungi at page 173, one Prof. Sam Turyamuhika writes as follows:

The current EAC Secretariat has been typified as powerless, meetings and workshop organizer, minute taker etc.”

49. We take a different view of that harsh and unfair judgment. The EAC Secretariat is the fulcrum on which the wheels of integration rotate. The Summit, the Council of Ministers, the Co-ordination Committee and Sectoral Committees are all part-time and meet only as often as their functions require. Yet, the Secretariat slogs, day in, day out, to ensure that the ship of integration remains afloat. The Community, in our view ,is like a giant ship owned by shareholders(the people of East Africa);the Summit is like a Board of Directors and the Council, is like the Management. The Captain is the Secretary-General and the crew are the staff in the Community. To call the Captain and crew, useless, and denigrate their role in keeping any ship on the high seas on course, is to say that the shareholders or the Board of Directors can single-handedly and without any input from those that physically man the ship, sail that ship from a distance. The Summit represents the owners of the ship, and its duty is to decide where the ship goes and should always act in the best interests of the shareholders. The Summit thus meets periodically to assess progress and regularly inform the shareholders of the profits (benefits) from the operations of the ship. The Council, Co- ordination and Sectoral Committees are the Summit’s agents in overseeing progress aforesaid. Without the Captain and crew, the ship can barely survive the storms and other perils that are prevalent in high seas including attacks by pirates. We digressed to make the point that, our reading and understanding of Articles 11,14,18,21 and 71 of the Treaty, which create the functions of the Organs of the Community, is that the Secretariat is the only Organ created by Article 9 of the Treaty to steer the ship of integration by implementing decisions of all the other Organs and its crucial role thereby ought to be recognized and supported.

50. In any event on Issue No. 2, our answer is in the negative.

Issue No. 3 – whether the process towards the establishment of a Political Federation of the Partner States is an exclusive preserve of the Council to which the Secretariat cannot contribute.

51. We have touched on this issue while addressing Issue No. 2 and we think that the present issue is a corollary of the other. However, it is obvious that whereas Issue No. 2 also dealt with directions to the Secretariat regarding the Customs Union, Common Market and Monetary Union, this one is specific to paragraph 10 (c) of the Communiqué which is about Political Integration.

52. Elsewhere above, we stated that the initiation of a process towards a Political Federation did not begin with the Communiqué issued at Bujumbura. In a book titled “The State of East Africa Report, 2006” published by Society for International Development, at page 7, it is written as follows:

“At the August 28th, 2004 EAC Summit held in Nairobi, Kenya, the Presidents of Kenya, Uganda and Tanzania resolved to work towards ‘the political federation of East Africa’. To this end, a high level Committee on Fast-Tracking East Africa Federation was established. The Committee reported back to the Heads of State at a Summit held on November 26th, 2004 in Arusha, Tanzania, where it was resolved to set up a political federation by ‘2010’. In their Joint Communiqué following the Third Extra- Ordinary Summit of the East African Community held on May 30th, 2005, in Dar es Salaam, Tanzania, the Heads of State ‘reaffirmed their commitment to East African Federation which is enshrined in the Treaty Establishing the East African Community’. They ‘further observed that a strong Federation is only possible if it is owned by the people of East Africa themselves through the effective and informed participation from the very beginning of the process through to the end’.”

53. This background is important in answering the question whether the Summit, pursuant to Article 123 (6) of the Treaty actually initiated the process towards a Political Federation at the Bujumbura Summit. In fact in its Report dated 26th November 2004 presented to the Summit, the Committee on Fast Tracking East African Federation, in its transmittal letter to the Heads of State, acknowledged that the Summit in fact initiated the process by its Communiqué of the 28th August 2004 and not later.These facts cannot be contested because they have been well documented for posterity.

54. Turning back to the specific question raised above, while determining Issue No. 2, we were categorical that the Secretariat is not a stranger to the implementation of the process towards a Political Federation and we have said why. We have already analysed its relationship with the Summit and now it behoves us to determine its relationship with the Council.

Article 14 of the Treaty defines the functions of the Council to include;

i)   to make policy decisions – Article 14 (1);

ii)  to promote, monitor, and keep under constant review the implementation of programmes of the Community and ensure the proper functioning and development of the Community – Article 14 (2);

iii)  Subject to the Treaty, give directions to the Partner States and to all other organs and institutions of the Community other than the Summit, Court and the Assembly- (Article 14(3).

55. One of the organs of the Community under Article 9 (g) of the Treaty is the Secretariat and therefore it would be expected that when executing its mandate under Article 123 (6) of the Treaty, to undertake the process leading to a Political Federation, the Council is well within its powers to give direction to the Secretariat in any matter it deems fit including that process. Elsewhere above, we made the point and now we reiterate it, that of all the Organs of the EAC, it is only the Secretariat which is clothed with the mandate and technical expertise to implement the integration agenda as may be directed by Council or Summit.

56. The Applicant also made the point that the Summit, by implication, admitted its ‘error’ in mandating the Secretariat ,as opposed to the Council, in implementing the process leading to a Political Federation. To his mind, the fact that the 14th Summit used the following words ,was telling in that regard;

“The Summit Noted the Progress made on the Road Map for establishing the Political Federation and model Structure for the Federation and directed Partner States to consult further….

And directed the Council of Ministers to Report progress to the 15th Summit of the EAC Council of Ministers.”

57. We have elsewhere above stated that the Summit can direct the Secretariat as well as the Council in matters relating to the implementation of the Treaty. Whether in one instance it directs one and later the other, is not in any way a breach of the Treaty. These Organs must all work in tandem towards the attainment of the objectives of the Community and there is no “error” that was rectified when the Summit acted as it did in the 14th Summit.

58. Another issue which we must address is that of the participation of the citizens of the Partner States in the integration process. Although the issue was vaguely pleaded it was more firmly articulated in submissions by the Applicant and his point was that like Mwalimu Nyerere warned in 1968,the process of integration must be people-centred or it will lead to regrettable consequences. The issue is not difficult and all we can do in answer to the Applicant ,is to refer to Article 7(1) (a) which provides that one of the Operational Principles of the Community is that of a ‘People-centered and market driven co-operation’. If the People of East Africa are at the centre of the entire process, then it follows that their input is not just necessary but imperative.

59. This Court takes judicial notice of the fact that meetings with citizens were held in all Partner States prior to the initiation of the process towards a Political Federation and there is no evidence placed before us to show that such consultations will not continue in the future.

60. Without belabouring the point, the process leading to a Political Federation is not exclusive to the Council and all Organs must work together to attain it and the place of the people is assured in that process.

61. Issue No. 3 must be answered in the negative for the above reasons.

Issue No. 4 – Whether the completion of Protocols is always only permissible where the Treaty specifically provides for areas of co-operation

62. We are of the view that our determination of Issue No. 1 also determined Issue No.4. We merely wish to reiterate, that once Article 131 is properly read and invoked, then it is fallacious to state that only areas of co-operation detailed in Articles 74 – 130 can properly attract the conclusion of Protocols. We have conclusively found that Article 131 envisages areas of co-operation which may not have existed in 1999 and so the window to create Protocols “in other fields” was opened and retained in the said Article 131. We say no more.

Issue No. 5 – Whether the Applicant is entitled to the Prayers sought

63. Reading the Prayers in the Reference which are reproduced at the beginning of this judgment, prayers (a), (b), (c ), and (d) have been found wanting and regarding prayer (f), the Applicant in his submissions stated as follows:

“Lastly, but not least is item (f) hereto, regards grounds 13 and 14 of the Affidavit. (sic). I earnestly request this Honourable Court to please consider awarding me US $60,000 as specific damages”(sic).

64. Neither in the Reference nor in submissions, written and oral, was the sum of US $60,000 justified or proved. The oral claim that because of the Communiqué, the Applicant suffered high blood pressure and was therefore entitled to compensation, was in our view not sufficient evidence that the Applicant was lawfully entitled to the said sum. In any event, once we have found all his claims untenable, no award in damages is justifiable.

65. On prayer (e), we think that the Applicant, impressive as his submissions were, was only a decent citizen who was pursuing a dream and although we have not found in his favour on any issue that he raised in the Reference, we do not consider it appropriate to award costs against him. He has always claimed to be an indigent and in fact this Court had to sit in Dar- es -Salaam, Tanzania, to hear the Reference close to his residence and in appreciation of the principle that this Court must be easily accessible to the people of East Africa.

66. We do not see any reason to punish him with costs and so we shall order that each party should bears its own costs.

67. The final Orders to be made are therefore that, the Reference is hereby dismissed but each Party shall bear its own costs.

68. It is so ordered.

 

Dated, signed and delivered at Arusha, this ………..day of ………………2013

 

………………………………….

Johnston Busingye

PRINCIPAL JUDGE

…………………………………

Mary Stella Arach- Amoko

DEPUTY PRINCIPAL JUDGE

 

………………………………….

John Joseph Mkwawa

 JUDGE

 

………………………………………

Jean Bosco Butasi

JUDGE

 

………………………………..

Isaac Lenaola

JUDGE

Author
Judgment date
Case number
Reference 7 of 2012
Court name
East African Court of Justice
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

(FIRST INSTANCE DIVISION)

REFERENCE NO 7 0F 2012

(Coram: J. Busingye PJ; M.S. Arach‐Amoko DPJ; and JB Butasi J.)

 

ANTHONY CALIST KOMU…………………………….APPLICANT

VERSUS

THE ATTORNEY GENERAL OF THE REPUBLIC OF

TANZANIA…………………………………………………..RESPONDENT

Date: 14th February, 2013


RULING OF THE COURT

This ruling is in respect of an oral application made by Counsel for the Respondent for extension of time to file a response to the Reference out of time.

The background of the application is not in dispute. The applicant, Anthony Calist Komu, is member of the CHADEMA political party in the United Republic of Tanzania. He was an unsuccessful candidate in the election of the representatives of the United Republic of Tanzania to the East African Legislative Assembly (hereinafter referred to as the “EALA”), conducted in April last year by the Tanzania Parliament. He filed the instant Reference in this Court on 15th June, 2012 to challenge the process of the said election on the ground that it violated the provisions of Article 50 of the Treaty for the Establishment of the East African Community (hereinafter referred to as the “Treaty”. He prayed for a declaration to that effect and for an order prohibiting the Parliament of the United Republic of Tanzania from further violation of Article 50 of the Treaty in future elections to the EALA. He prayed for the costs of the Reference as well.

The Reference was served on the Attorney General of the United Republic of Tanzania on the 19th of June, 2012. The Attorney General did not file a response within the 45 days prescribed under Rule 30(1) of the Rules of this Court.

Nonetheless, the Reference was cause listed for a Scheduling Conference in accordance with Rule 53 on the 30th of January 2013. The Notice of the Scheduling Conference was duly served on the Attorney General as evidenced by the affidavit of service of one Mennas Donald Mafwere, a clerk of the East African Court of Justice (EACJ) at the Dar es Salaam sub‐Registry.

On 30th January 2013, when the file was called before us, learned Counsel for the Applicant, Mr. Edson Mbogoro informed Court that he was ready to proceed with the Scheduling Conference. On the other hand, Mr. Mark Mulwambo and Mr. Obadia Kameya, the learned Senior and Principal State Attorneys, respectively, who represented the Respondent, applied for leave to make an oral application under Rule 21(7) for extension of time within which to file a response to the Reference. We granted their request.

One of the reasons advanced by the learned Counsels for the Respondent for the delay in filing their response to the Reference was that on perusal of the Reference, they discovered that the matters in the Reference were similar to those in another matter that was pending before the High Court at Dodoma, where they had raised preliminary objections. Therefore, they were waiting for that ruling and were contemplating challenging the Reference as sub‐judice.

Secondly, they told Court that they had spent time in carrying out research and consultations. This took some time since they had to make physical follow up in the National Assembly from where the matter arose. By the time they were ready, the 45 days in which they had to file a response had lapsed.

They also told Court that they did not sit idly by, but made frantic attempts to lodge the documents they had prepared in the sub‐Registry at Dar es Salaam, but were informed that the 15 US Dollars they had paid was insufficient and that the correct fee was 400 US Dollars. They further stated that they made every effort to contact the Registrar for clarification, including calling him on his cellular phone, but their efforts were futile as the Registrar informed them that he was on leave.

Lastly, but most importantly, in their view, they made very spirited submissions that the Reference requires the interpretation of Article 50 of the Treaty. It is thus a very important matter, since it touches the heart and structure of the institutions of a Partner State of the East African Community (EAC). For that reason, the Court should consider the interest of justice and that of the Partner State and should give the Partner State an opportunity to present its side of the case, so that the Court can assess both sides in order to ascertain whether the alleged conduct actually amounts to a violation of the Treaty.

Mr. Mbogoro opposed the application. His stance was that the reasons advanced by the Respondent for the delay were insufficient.

Firstly, he contended that any serious lawyer should have been able to do research, to consult and file a response within the 45 days allowed under the Rules.

Secondly, it was Mr. Mbogoro’s contention that the sub‐judice issue could not operate as an obstacle to delay the filing of the response as it could have been raised as a preliminary objection to the Reference.

He argued further that the inability of the Respondents to find the Registrar was not a plausible reason as the Registry itself was open and could be accessed. The Registrar may have been on leave but his office was not.

Finally, he prayed for costs in the event that the Court grants the application.

Applications for extension of time are provided for under Rule 4 of the Rules of this Court. It provides that:

“ A Division of the Court may for sufficient reason extend the time limited by these Rules to or by any decision of itself for the doing of an act authorized or require by these Rules, whether before or after the expiration of such time and whether before or after the doing of the act, and any reference in this Rules to such time shall be construed as a reference to such time as so extended.”

The principles are well settled. Under Rule 4, the Court has power to extend time even after the time has expired like in the instant case but the applicant must present sufficient reason(s) before Court can exercise its discretion. Some of the factors the Court considers include the length and reason for delay, the likely prejudice to the respondent if the application is granted as well as the importance of the matter in issue to public administration in general and its effect on the integration process in particular. See: Appeal No. 1 of 2009: The Attorney General of Kenya v. Prof. Anyang’ Nyongo & 10 Others.

We have carefully considered the submissions on both sides and the Rule and principles that guide the Court in determining applications of this nature.

We must state from the outset that we are not persuaded at all by the flimsy reasons for the delay advanced by the Respondent’s counsels. The 45 days should have been adequate for consultations between the Attorney General’s Chambers and Parliament. Even so, the response could have been lodged out of time under Rule 10, which permits documents to be lodged in the Registry out of time, pending regularization.

While it may be true that the Registrar was on leave, the argument that the Respondent could not file a response because of that lacks both logic and merit. First, they should have known that the Registrar’s office, just like the Attorney General’s Chambers, does not go on leave. The Court has a Registry that is open and operational during official hours. There is a Deputy Registrar as well, who takes care of the Registrar’s duties during his absence. We find that their problem was that instead of looking for the Registry, they seem to have spent time, for some unexplained reason known to them, trying to look for and access the Registrar personally. We think they should have known and they do know the difference between the Registrar and the Registry.

We also are not convinced as to why the existence of a similar case in the Tanzania High Court should have stopped Counsel from responding to this Reference. They did not even show us the evidence of the case in order for us to ascertain that it was in respect of a violation of the Treaty or a similar issue. Even if it was, Counsel should have known better whether there is a law that bars him from responding to the Reference. The fact that there is a similar case in a Tanzania High Court does not act as a bar. Any preliminary objections could have been raised before this Court within the response. We also take judicial notice of the fact that it is not the first time that the Attorney General of Tanzania is appearing before this Court and that being the case; they ought to know the very basics of the Rules of the Court. In the circumstances, we find the Respondent’s reasons flimsy and lacking merit. To that extent, we agree with Counsel for the Applicant.

Nevertheless, one of the factors considered by courts as sufficient reason in applications of this nature is the importance of the matter to public administration. We think that the subject matter of the Reference before us is important and pertinent to the development of the EAC in that the subject of election impinges on the very rubric of the EALA, which is the legislative arm of the EAC. The manner of electing its members is thus of paramount importance. Consequently, while we would not otherwise have hesitated to dismiss this application with costs, we find that due to the public importance of the matter at hand as above shown, the justice of the case would demand that the United Republic of Tanzania is afforded an opportunity to present its side of the story so that the Court is assisted in making an informed decision. Fortunately, Mr. Mbogoro also conceded that it would be better, in the circumstances, to have the matter heard inter partes so that both sides are given an opportunity to present their side of the case.

We are also alive to the inherent powers of this Court under Rule 1(2), which is to the effect, that:

(2) Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice….”

We accordingly allow the application and order that:

1.  The Respondent shall file his response to the Reference within 15 days from the date of this Order.

2. The Respondent shall meet the costs of the application in any event. It is so ordered.

Dated and Delivered at Arusha this 14th day of February 2013.

 

JOHNSTON BUSINGYE

PRINCIPAL JUDGE

 

M.S. ARACH‐AMOKO

DEPUTY PRINCIPAL JUDGE

 

JEAN BOSCO BUTASI

JUDGE

 

Author
Judgment date
Case number
Reference 6 of 2012
Court name
East African Court of Justice
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION

(Coram: Jean-Bosco Butasi, PJ, Mary Stella Arach-Amoko, DPJ, John Mkwawa, J, Isaac Lenaola, J, Faustin Ntezilyayo, J)

REFERENCE NO.6 OF 2012

BETWEEN

AMONG A. ANITA............................................................................................APPLICANT

VERSUS

1. ATTORNEY GENERAL OF UGANDA..........................................1ST RESPONDENT

2. THE SECRETARY GENERAL OF THE

EAST AFRICAN COMMUNITY....................................................2ND RESPONDENT

AND

1. HON.MARGARET NANTONGO ZZIWA. ………...……….….…..1ST INTERVENER

2. HON. DORA BYAMUKAMA………………………………………..2ND INTERVENER

3. HON. BERNARD MULENGANI…………….……………………..3RD INTERVENER

4. HON. DAN KIDEGA………….……………………………..……….4TH INTERVENER

5. HON. MIKE SEBALU………….…………………………………….5TH INTERVENER

6. HON. NUSURA TIPERU…………..…………………………………6TH INTERVENER

7. HON. SUSAN NAKAWUKI…………..………………………….......7TH INTERVENER

8. HON. CHRIS OPOKA…………..…………………………………....8TH INTERVENER

9. HON. MUKASA FRED MBIDDE………….……………………..…9TH INTERVENER

 

Date 29th November 2013


JUDGMENT OF THE COURT

Introduction

This is a Reference by one AMONG A. ANITA, a resident of Uganda and a member of the Forum for Democratic Change (FDC) – one of the registered Political Parties in Uganda, (hereinafter referred to as the “Applicant”). She was the official party candidate who had been nominated to contest in the elections for membership to the East African Legislative Assembly (hereinafter referred to as the “EALA”) in 2012. Her address for the purpose of this Reference is indicated as C/O M/S Kyazze & Co. Advocates, Plot 2, Jumbo Plaza, Room 1.2, Parliament Avenue, and P.O. Box 3064, Kampala, Uganda.

The instant Reference was filed on 15th June 2012 under Article 30 of the Treaty for the Establishment of the East African Community and Rules 10 and 24(1) of the East African Court of Justice Rules of Procedure (hereinafter referred to as the “Treaty” and the “Rules”, respectively). It is also premised on Articles 9 (1) (f), 23(1), 27(1), 30(1), 33(2), 50(1) of the Treaty.

The Respondents are the Attorney General of the Republic of Uganda and the Secretary General of the East African Community and they are sued on behalf of the Government of Uganda and of the East African Community in their respective capacities as the Principal Legal Adviser of the Republic of Uganda and the Principal Executive Officer of the Community.

It is also worth noting that on 17th August 2012, nine interveners, namely, the Uganda Representatives to the EALA filed a Notice of Motion under Article 40 of the Treaty and Rule 36 of the Rules. This Court granted their Application on 5th February 2013. The Court also allowed the Interveners’ supporting affidavit deponed by one Hon. Margaret Nantongo Zziwa (the 1st Intervener) to serve as the statement of intervention as provided under Rule 36(4) of the Rules. Further to the foregoing, the Interveners were allowed to make submissions.

Representation

The Applicant was represented by Mr. Joseph Kyazze and Mr. Simon Kiiza. Ms. Robina Rwakoojo, Mr. Philip Mwaka, Mr. Elisha Bafirawala, Ms. Maureen Ijang and Ms. Eva Kavundu appeared for the 1st Respondent, while Mr. Wilbert Kaahwa, Learned Counsel to the Community appeared for the 2nd Respondent. The Interveners were represented by Mr. Justin Semuyaba.

Background

The EALA is an organ of the East African Community established under Article 9 of the Treaty.

Article 48 of the Treaty provides for the membership of the EALA as follows:

“1. The membership of the Assembly shall comprise:

(a) Nine members elected by each Partner State; and

(b) Ex-officio members (...).”

As for the election of members of the EALA, Article 50 (1) provides that:

“1. The National Assembly of each Partner State shall elect, not from its members, nine members of the Assembly, who shall represent as much as feasible, the various political parties represented in the National Assembly, shades of opinion, gender and other special interest groups in that Partner State, in accordance with such procedure as the National Assembly of each Partner State may determine.”(...)”

Pursuant to the above Article, the Parliament of Uganda passed the Rules of Procedure for the election of EALA members, 2006, providing for election of members of the EALA.

In its Ruling in Hon. Jacob Oulanyah Vs The Attorney General of the Republic of Uganda, Constitutional Petition No. 28 of 2006, the Constitutional Court of Uganda found that the aforesaid Rules were in contravention of Article 50 of the Treaty and various Articles of the Constitution of Uganda and declared them null and void. The Attorney General of Uganda applied for, and obtained a stay of execution of that judgment, appealed against it to the Supreme Court of Uganda and that appeal is still pending to date.

In a Reference predicated on conformity with Article 50(1) of the Treaty brought by the Democratic Party (DP), one of the registered Political Parties in the Republic of Uganda and Mr. Mukasa Mbidde, one of its members, this Court, in its judgment dated 10th May 2012, annulled the said Rules on the ground inter alia that they were contrary to Article 50(1) of the Treaty and consequently ordered the Government and the Parliament of the Republic of Uganda to amend the then existing Rules of procedure for election of members of the EALA, 2006 to bring them in conformity with Article 50(1) of the Treaty. (See Democratic Party & Mukasa Mbidde Vs The Secretary General to the East African Community and the Attorney general of the Republic of Uganda, Reference No. 6 of 2011).

Given the foregoing obligation to comply with the provisions of the Treaty, it became necessary to make new rules for the election of members of EALA for the 2012 elections. In the course of the debate, the Parliament of Uganda failed to reach a consensus on the interpretation of Article 50(1) of the Treaty and unanimously resolved to have the matter referred to this Court by the Attorney General for a proper interpretation of the said Article in so far as representation covering the interest groups set out in Article 50(1) is concerned.

Nevertheless, the matter was not referred to this Court but the Parliament of the Republic of Uganda, on the 18th day of May 2012, went on to enact the Rules of Procedure for the Election of Members of the East African Legislative Assembly, 2012 (hereinafter referred to as “Rules of Procedure”).

The instant Reference challenges the legality of the said Rules as being inconsistent with the Treaty.

THE APPLICANT’S CASE

The Applicant’s case is contained in the Reference filed on 15th June 2012, her affidavits sworn on 11th June 2012 and 27th August 2012 and affidavits filed by Mr. Tuhamire Robert on 12th February 2013 and 18th March 2013, as well as her submissions.

The Applicant’s Reference challenges the legality of the Rules of Procedure, particularly Rule 13(1) and (2) of Appendix B, as being inconsistent with or constituting an infringement of the provisions of the Treaty, particularly Articles 23(1), 27(1), 38(1) and 50(1) on the grounds that, in substance, they do not cater for and guarantee representation in the EALA for each of the interest groups mentioned under Article 50(1) of the Treaty.

Another contention of the Applicant is that the Rules were never gazetted for the benefit of the interest groups envisaged in Article 50(1) of the Treaty in further infringement of the Treaty and provisions of the Constitution of the Republic of Uganda.

It is her contention that the failure to gazette the Rules renders them null and void.

The Applicant therefore seeks the following declaratory orders:

a) That the said Rules of Procedure for election of members of the EALA 2012 are null and void;

b) That the said Rules are inconsistent with or otherwise an infringement of the provisions of Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty;

c) That the nomination and subsequent election of the members of the EALA by the Parliament of Uganda conducted under or in pursuance of the said Rules is not only unlawful but an infringement of the Treaty and therefore ought to be set aside;

d) That the 2nd Respondent ceases to recognize the persons elected by

the Parliament of Uganda to the EALA;

e) That the 1st Respondent be ordered to cause the enactment of Rules of Procedure for the Election of members of the EALA that are in conformity with Article 50(1) of the Treaty;

f) That an order that fresh nominations and elections of the EALA members from Uganda be conducted under proper Rules of Procedure; and

g) That the Respondents be ordered to pay the costs of the Reference.

FIRST RESPONDENT’S CASE

The 1st Respondent’s case is set out in his response to the Reference filed on 10th August 2012 which was supported by the affidavits of Mrs. Jane L. Kibirige, the Clerk to the Parliament of Uganda together with that of Mr. Alex Atuhaire and his submissions.

In a nutshell, his response is as follows:-

a) That the Parliament of the Republic of Uganda amended and adopted Rules of Procedure, particularly Rule 13(1) and (2) of Appendix B.

b) That the 2012 Rules of Procedure are in conformity with Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty.

c) That the impugned Rules enabled the various Political Parties represented in Parliament, shades of opinion, gender and special interest groups to nominate any number of candidates to participate in the EALA elections, and a total of seventeen persons were nominated.

d) That pursuant to Rule 13 (1) of Appendix B, the National Resistance Movement Party (NRM), the Democratic Party (DP), the Conservative Party (CP), and the Uganda People’s Congress (UPC), and the Independents, all nominated candidates to contest for elections to the EALA. The Forum for Democratic Change (FDC) and JEEMA opted not to nominate or otherwise participate in the election process.

e) That the said EALA elections were conducted by secret ballot and in conformity with Articles 23 (1), 27(1), 38(1) and 50 (1) of the Treaty.

f) That, in the alternative, but without prejudice to the foregoing, any non-conformity was not fatal or material to the enactment of the said Rules or conduct of the said elections.

g) That the Reference is misconceived, without merit, frivolous and bad in law and the Applicant is not entitled to the orders sought. He therefore prays that the Court should dismiss the Reference with costs.

SECOND RESPONDENT’S CASE

The 2nd Respondent filed his Response on 9th August 2012 and his submissions on 22nd April 2013. His case is as follows:-

a) That the matters contained in the Applicant’s case are, pursuant to Article 52 of the Treaty, tantamount to questions of an election of representatives of a Partner State to the EALA, which must be determined by an institution of the Republic of Uganda that determines questions of the election of members of the National Assembly.

b) That the Reference does not allege any wrongdoing on the part of the 2nd Respondent and therefore there is no cause of action against him.

c) That the recognition of elected members of the EALA is a function of the Law as provided under the Treaty and the Rules of Procedure of the EALA. On the basis of that Law, he is bound to take cognizance of the election of members of the EALA as duly communicated to him.

d) That the granting of the orders sought by the Applicant:

(1) does not arise;

(2) would unduly interfere with the smooth operations of the East African Community.

The 2nd Respondent therefore prays that this Court should dismiss the Reference with costs.

The Interveners’ position

Briefly, their position is as follows:

a) That the process of enacting the Rules of procedure for the election of representatives of Uganda to the EALA followed the established legal mandate of the Parliament of Uganda and the adopted Rules of Procedure, particularly Rule 13(1) and (2) of Appendix B, was consistent with and not in contravention of the provisions of Articles 50(1) of the Treaty.

b) That the 2012 Rules of Procedure are in conformity with Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty.

c) That these Rules enabled the various political parties represented in the Parliament of Uganda, shades of opinion, gender and special interest groups to nominate any number of candidates to participate in the EALA elections.

d) That the said EALA elections were conducted by secret ballot and in conformity with Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty.

e) In the alternative, but without prejudice to the foregoing, that any non- conformity was not fatal or material to the enactment of the said Rules or conduct of the said elections.

f) That the Reference is misconceived, without merit, frivolous, bad in law and the Applicant is not entitled to the Orders sought.

The interveners therefore also pray that the Reference should be dismissed with costs.

SCHEDULING CONFERENCE

Pursuant to Rule 53 of the Rules of this Court, a Scheduling Conference was held on 6th February 2013 at which the following were framed as points of agreement and disagreement respectively:

Points of Agreement

Both parties agreed that:

a) The Parliament of Uganda passed Rules of Procedure for election of members of the EALA on the 18th May 2012.

b) The nomination and election of the members of the EALA was advertised in the “New Vision” newspaper of 17th May 2012, in which the date for picking nomination forms was publicised on 17th May 2012, nominations were set for Monday 21st to Tuesday 22nd May 2012 and elections for 30th May 2012.

c) The Parliament of Uganda held elections for the EALA representatives on the 30th May, 2012.

d) The elections of Uganda’s current representatives to the EALA were conducted under the said Rules.

e) Following the elections the names of Uganda’s EALA representatives were gazetted in the Uganda Gazette, Volume CV No. 29 dated 31st May, 2012 and, in the East African Community Gazette under Volume AT 1/9 dated 8th June, 2012. The names of Uganda’s representatives were communicated to the 2nd Respondent by the Clerk to the Parliament of Uganda in her letter Ref. AB: 117/122/01 dated 31st May, 2012.

f) The Reference raises triable issues meriting adjudication and pronouncement by this Court.

Points of disagreement/Issues for determination by the Court

1) Whether the Court is vested with the jurisdiction to entertain this Reference.

2) Whether the Rules of Procedure for the election of members of the EALA cited as the Rules of Procedure of Parliament 2012 particularly Rules 13(1) and (2) are in substance inconsistent with the Treaty and its application, specially Articles 23(1), 27(1), 38(1) and 50(1).

3) Whether or not the Rules were gazetted and if not whether the failure to gazette rendered them null and void.

4) Whether in view of the Court’s findings on issues (2) and (3), any acts, decisions made or elections conducted by the Parliament or Government of Uganda pursuant to the Rules are null and void.

5) Whether the parties are entitled to the remedies sought.

It was further agreed at the aforesaid Conference that evidence would be by way of affidavits.

The parties also agreed to file written submissions in respect of which they would make oral highlights at the hearing.

The parties noted that the case presented no possibility of mediation, conciliation or settlement.

Determination of the issues by the Court

Issue No.1:

Whether the Court is vested with the jurisdiction to entertain this Reference

Submissions

Counsel for the Applicant contended that the issue of jurisdiction is clearly moot and academic and should not arise. It was his view that challenging the jurisdiction of the Court at the initial stage of the Reference offends the rule on approbation and reprobation. He asserted that the Respondents cannot on one hand concede that the Reference raises triable issues meriting adjudication by the Court and further to the 2nd issue inviting the Court to determine whether the rules are in substance inconsistent with the Treaty and on the other hand, dispute and challenge the Court’s jurisdiction since they cannot approbate and reprobate at the same time.

Counsel went on to point out that the issue pertaining to whether the Court is vested with the jurisdiction to entertain this Reference has three facets. On the first facet, Learned Counsel submitted that since it was agreed at the Scheduling Conference that this Reference raises triable issues that merit adjudication by this Court, it is his understanding that the triable issues relate specifically to the question of legality of the Rules of Procedure of election of members to the EALA, 2012 and that falls within the ambit of the jurisdiction of this Court under Article 23(1), 27(1) and Article 30(1) of the Treaty. In support of his submissions on this issue, Counsel cited the case of Modern Holdings (EA) Limited Vs Kenya Ports Authority, EACJ Reference No. 1 of 2008.

With regard to the second facet, Mr. Kyazze argued that Article 30(1) as read together with 23(1) and 27(1) confer upon this Court the jurisdiction to determine the legality of the Rules, regulations, directives and actions of the Partner States on account that such regulations are unlawful or constitute an infringement of the provisions of the Treaty and are therefore inconsistent with the Treaty. Learned Counsel contended that this calls for interpretation and application of the provisions of the Treaty within the parameters of the jurisdiction of this Court as provided for by the aforementioned Articles of the Treaty. Counsel then referred the Court to authorities which, according to him, support his submission that this Reference falls within the mandate of this Court. These authorities are: Modern Holdings (EA) Limited Vs Kenya Ports Authority (supra); James Katabazi & others Vs The Attorney General of the Republic of Uganda and Secretary General of the East African Community, EACJ Reference No. 1 of 2007; The East African Law Society & 3 others Vs The Attorney General of the Republic of Kenya & 3 others, EACJ Reference No. 3 of 2007; and Prof. Peter Anyang’ Nyong’o &others Vs The Attorney General of the Republic of Kenya & others, EACJ Reference No. 1 of 2006.

Concerning the third facet, Mr. Kyazze argued that it revolves around the issue of interpretation of Articles 23, 27, 30 of the Treaty on the one hand and Article 52 of the Treaty that the Respondents seek to rely on for the submission that this Court is devoid of jurisdiction to entertain this Reference, on the other hand. He contended that the challenge on the legality of the Rules and their being an infringement of the Treaty falls under Article 30(1) and completely outside Article 52 of the Treaty. It was his view that the said Article does not cover the challenge, which is the substance of this Reference, but that it only covers elections and membership, not the law under which those elections were conducted, which is the the gist of this Reference.’ He referred the Court to two cases, namely, The East African Law Society case and the Katabazi case (supra) in support of his position in that regard.

As regards the assertion by the Respondents that the matters in the Reference are tantamount to questions of an election of representatives of a Partner State to the EALA to be determined by an institution of the Republic of Uganda that determines questions of elections under Article 52 of the Treaty, and thus falling outside the jurisdiction of this Court, Counsel opposed this contention arguing that the Reference is not an election petition, but that the challenge is essentially on the legality of the Rules, and what transpired there-under. The nullification of the elections can only be the inescapable consequence of the nullification of the Rules under which the elections were conducted. Of course once the law is nullified, so are the acts/activities carried out there- under.”

Counsel then distinguished between the jurisdiction of this Court and its power to grant consequential reliefs in the context of Article 52 of the Treaty, relying on two cases, namely, The Attorney General of the United Republic of Tanzania Vs African Network for Animal Welfare (ANAW), EACJ Appeal No. 3 of 2011; Prof. Peter Anyang’ Nyong’o & others Vs The Attorney General of the Republic of Kenya & others, EACJ Reference No.1 of 2006. He thus maintained that the essence of the Applicant’s Reference is to challenge the legality of the Rules of Procedure for the Election of Members of the

EALA, and not the issue whether the nine representatives of Uganda were elected members of the EALA for Article 52 to apply, putting the matter outside the jurisdiction of this Court as contended by the Counsel for the Respondents.

In the same vein, Counsel distinguished the present Reference from the Case of Christopher Mtikila Vs Attorney General of the United Republic of Tanzania and the Secretary General of the East African Community, EACJ Reference 2 of 2007.The latter, as he put it, was premised on the application of Article 52 of the Treaty and was strictly on elections and membership and the issue of the legality of the Law under which the elections were conducted, which is the essence of this particular case, was never a subject of that decision.

Counsel also submitted that in terms of the scope of jurisdiction, Article 30 of the Treaty envisages that the Court determines the legality of an Act that has been enacted and come into force, any regulation that has been made, a directive that has been given, a decision that has been taken and an action that has been done or conducted. He added that, if upon reference to this Court of any of the aforementioned, the Court finds an infringement of the Treaty, or unlawful action, it has to hold so and, depending on the nature of the infringement or unlawfulness, may grant the discretionary remedy of a declaratory Judgment annulling such Act, regulation, directive, decision or action as the case may be. He referred to East African Law Society & 3 others Vs The Attorney General of the Republic of Kenya & 3 others (supra), at pages 41 and 43 in support of his assertion.

For all the reasons set out above, Counsel for the Applicant prayed that the Court should make a finding that this Court has jurisdiction to determine this Reference.

Counsel for the 1st Respondent, in his response, pointed out that Article 23 and 27 of the Treaty spelt out the jurisdiction of this Court. He emphasised that these provisions set out the authority and or extent of power conferred upon this Court in determining issues that are brought before it. Stressing that Article 27(1) particularly confines the exercise of the Court’s authority to matters which do not include the application or any interpretation to jurisdiction conferred by the Treaty on the organs of Partner States, he submitted that removal or annulling the election of members to the EALA are such matters to which the Court has no jurisdiction. He then referred the Court to Anyang’ Nyong’o and Mtikila cases.

He further submitted that this position is strengthened by the provisions of Article 52 of the Treaty, which vests the question of inquiry into elections of members to the EALA to the relevant institutions of Partner States.

Article 52 of the Treaty provides:

“Questions as to Membership of the Assembly

1. Any question that may arise whether any person is an elected member of the Assembly or whether a seat on the Assembly is vacant shall be determined by the institution of the Partner State that determines questions of the elections of members of the National Assembly responsible for the election in question.

2. The National Assembly of the Partner States shall notify the Speaker of the Assembly of every determination made under paragraph 1 of this Article.”

Building on the above provisions and relying on the Anyang’ Nyong’o and the Mtikila cases, he argued that any question as to the membership to the EALA shall be exclusively determined by institutions of a Partner State.

With reference to prayers (a), (b) and (c) sought by the Applicant, Counsel submitted that the above orders and declarations seek to annul and nullify the elections conducted on the 30th May 2012 resulting in the election of the nine Ugandan Representatives to the EALA. He added that the orders and declarations also inquire into the membership of the Ugandan Representatives to the EALA, which, under Article 52 of the Treaty is a sole preserve of

institutions of a Partner State. He further asserted that this Court is a creature of the Treaty and so is any jurisdiction conferred upon it and it therefore, follows that this Court cannot grant reliefs on matters which are not within its jurisdiction, namely, the prayers sought herein by the Applicant.

Counsel further pointed out that the change made by the Applicant in the prayers sought in her submissions are different from those contained in her Reference and urged the Court to restrict itself to the reliefs claimed by the Applicant in the Reference and to disregard the two other prayers added by the Applicant, namely, a declaration to set aside the nomination and election of the nine members of the EALA by Parliament of Uganda, and an order that new Rules of Procedure be enacted.

Finally, Learned Counsel refuted the statement made by the Applicant’s Counsel that the 1st Respondent had conceded that the Court has jurisdiction over this matter. He then maintained that this Court has no jurisdiction conferred by the Treaty to grant the reliefs sought by the Applicant in her Reference.

As for Counsel for the 2nd Respondent, he first of all submitted on the term “jurisdiction” which, according to The Dictionary of Words and Phrases Legally Defined Edited by John Saunders, 2nd Edition, Volume 3 at p.113, means “... the authority which a Court has to define matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted, and may be extended or restricted by the like means.”

He went on to give a list of cases in which the said meaning on the power of Court to hear and decide on a case was emphasised. (see Rv. Kent Justices ex parte Lye [1967] 2 QB 153, Union Transport Plc v Continental Lines SA [1992] I WLR 15; Christopher Mtikila Vs The Attorney General of the United Republic of Tanzania & Another, EACJ Reference No. 2 of 2007; East African Law Society Vs The Secretary General of the East African Community, EACJ Reference No. 1 of 2011; Hon. Sitenda Sebalu Vs. The Secretary General of the East African Community & 3 others; Modern Holdings (EA) Limited Vs Kenya Ports Authority, EACJ Reference No. 1 of 2008).

Further to the above, Counsel asserted that the issue of jurisdiction of this Court in the matter at hand is a triable issue that requires interpretation by this Court as articulated by parties at the Scheduling Conference and thus contended that this issue is not “just moot or academic.”

Counsel also contended that the matters contained in the Applicant’s pleadings are, pursuant to Article 52 of the Treaty, questions of an election of representatives of a Partner State to the EALA, which must be determined by an institution of the Republic of Uganda that determines questions of the elections of members of the National Assembly, namely the High Court. He therefore, pleaded that the dispute on elections of the EALA members from the Republic of Uganda should not be heard by this Court, which should therefore divest itself of jurisdiction to determine it. On this submission, he relied on the decision of this Court in the Mtikila case (supra).

With regard to submissions by Counsel for the Interveners, Learned Counsel, in a nutshell, asserted that, since the essence of the Reference is the nullification of elections of the EALA members from Uganda, this Court has no jurisdiction over this matter which, as he pointed out, should be determined through an election petition reserved to national courts under the terms of Article 52 of the Treaty. In support of his stance, he referred the Court to the Anyang’ Nyong’o and Mtikila decisions.

Decision of the Court on Issue No.1

From the outset, we deem it necessary to look into the meaning of the word “jurisdiction”. We agree with the Counsel for the 2nd Respondent that the definition given to the term “jurisdiction” is correct.

Following the above, it is noteworthy to recall, as it has been stated previously by this Court, that the Treaty is an international treaty and subject to international law on interpretation of treaties and specifically Article 31(1) of The Vienna Convention on the Law of Treaties, which sets out the general rule in the interpretation of treaties as follows:

a) A treaty shall be interpreted in good faith and

b) In accordance with the ordinary meaning to the terms of the treaty in their context, and

c) In the light of the object and purpose of the treaty.

(see Anyang’ Nyong’o case, p. 10 and East African Centre for Trade Policy and Law Vs. The Secretary General of the East African Community, EACJ Ref. 9 of 2012, p. 13).

We shall be guided by the above principles in determining the issues framed in this Reference, particularly the issue at hand where this Court has to determine whether it has the jurisdiction to entertain the Reference.

The Treaty describes the role and jurisdiction of this Court in two distinct but clearly related provisions: In Article 23 (1), the Treaty provides that:

“The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.”

Moreover, in Article 27(1), it provides that:

“The Court shall initially have jurisdiction over the interpretation and application of this Treaty provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner Sates.”

The Treaty also provides in Article 30 (1) and (3) that:

“1. Subject to the provisions of Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the ground that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.

2...

3. The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.”

Applying the principles and provisions above, we hereby make the following findings:

At the Scheduling Conference, parties agreed that the Reference raised triable issues meriting adjudication and pronouncement by this Court. We have elsewhere above reproduced those issues. However, on careful examination of all those issues, we are of the view that issue No. 2 is vividly within our jurisdiction. Therefore, considering the foregoing and guided by the pre-cited cases of Anyang’ Nyang’o and Mtikila, we are of the firm view that the Court would be failing in its duty under Articles 23 and 27 of the Treaty as read together with Article 30 and 50(1), if it refuses to determine the said issue on the ground that it does not have jurisdiction. We shall, therefore, hold that we have the requisite jurisdiction to determine the issues raised in the Reference, but subject to what we shall say about matters revolving around gazettement and the nullification of election of the EALA members raised in issues No. 3 and 4.

Accordingly, only the Applicant’s prayers that fall under our jurisdiction will be the subject of our adjudication in this Reference.

Issue No.2:

Whether the Rules of Procedure for the election of members of the East African Legislative Assembly cited as the Rules of Procedure of Parliament 2012, particularly Rules 13(1) and (2) are in substance inconsistent with the Treaty and its application, specifically Articles 23(1), 27(1), 38(1) and 50(1)

Submissions

Counsel for the Applicant submitted that the gist of the Applicant’s contention is that the impugned Rules, specifically Rule 13(1) and (2) do not in substance comply with Article 50(1) as they failed to cater for the interests and guarantees of representation in the EALA of each of the interest groups mentioned under Article 50(1) of the Treaty.

Counsel further argued that Article 50(1) provides for composition of nine members for the EALA as being representatives of the specified groupings that are set out herein.

According to him, the question that has to be raised first is whether there is any controversy on the correct import of the said Article vis-a-vis the Rules that were passed by the Parliament of Uganda. In this regard, he stressed that, while in the Mbidde case this Court has set out the essential requirements for elections as provided for by Article 50(1) of the Treaty, the Court, however, refrained from giving guidance or interpreting for the Parliament of Uganda as to what constitutes compliance with Article 50 or Article 50(1) because it considered that that issue was not in contention. Learned Counsel then urged the Court to pronounce itself on this issue in the present Reference.

In his interpretation of Article 50(1) of the Treaty, Counsel contended that the Parliament of Uganda is mandated with the power to make Rules that effectuate the letter and spirit of Article 50(1) of the Treaty. In that context, Parliament of Uganda is bound to cater for and to guarantee effective representation of the interests of each of the intended beneficiaries of Article 50(1). He argued that the mandate of the Parliament of Uganda under Article 50(1) is not unfettered to the extent that it may make any rules that suit its convenience or that of the majority in the National Assembly. In addition, he submitted that Article 6(d) of the Treaty obliges Partner States (acting directly or through their organs) to adhere to inter-alia, the principle of rule of Law. In support of his assertion, he referred to the Katabazi case at page 18, where this Court held that:

“Perhaps the most important application of the rule of law is the principle that Governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with the established procedural steps that are referred to as due process...”

Relying on Articles 77 and 78 of the Constitution of Uganda and on the National Youth Council Act, Cap 319, Learned Counsel went on to show how those provisions give guarantees to the persons mentioned therein, to be represented in Parliament. In this regard, he asserted that in the abovementioned provisions, nothing was left for consensus to be reached by the relevant Electoral College or the entire electorate and that each and every interest to be represented in Parliament was catered for with precision, and the beneficiaries thereof were left in no doubt as to that fact.

Counsel added that the question of the guarantee of the representation of the interests of the persons and groups mentioned in Article 50(1) is a question of law, which arises out of the interpretation of the said Article. He submitted that Rule 13(1) and (2) of the impugned Rules is supposed to have substantially provided for the specific slots for the interest groups set out in the Article and that it cannot purport to subject them to consensus.

Counsel also faulted the Parliament of Uganda on the ground that, in adopting Rule 13(1) and (2) of the impugned Rules, it reproduced the content of Article 50(1) rather than spelling out the proportionate representation that is envisaged under that Article, and for this reason, it has departed from the essence, the spirit and the intendment of Article 50(1) of the Treaty.

As for the applicability of the Treaty, Learned Counsel asserted that the impugned Rules are inconsistent with the Treaty and its application for the reasons, firstly, that they do not guarantee representation of women, the youth, and persons with disabilities, who are envisaged in Article 50(1) of the Treaty.

Reading the said Article in the context of other provisions of the Treaty including Article 5(3), he contended that the absence of guarantees for the representation of women is inconsistent with the Treaty and its application and that “it seriously affects the set objectives of the Community.

Secondly, Counsel also argued that the Parliament of Uganda violated Article 6(d) of the Treaty which emphasizes the principles of democracy and rule of law and that in brief, the rule of law demands that whatever is done, ought to be done according to the law. It is therefore his stance that these principles were not respected by the Parliament of Uganda in carrying out activities such as setting up advertised dates for picking nomination forms, nomination and election dates before the Parliament had even passed the impugned Rules. To Counsel, this was a clear infringement of the Treaty since parties who intended to participate and benefit from the provisions of Article 50(1) were unable to know when to participate in the process before the Rules were passed.

Counsel also asserted that another infringement of the Treaty lies in the part of Rule 13(1) which reads: “after consultations and consensus by political parties and other members of Parliament”. His argument in that regard was that, such a provision does not cater for special interest groups, gender and the youth who are not political parties or are not members of Parliament but were intended to benefit under Article 50(1) of the Treaty.

Concluding his submission, Counsel reiterated his contention that the Rules, specifically Rule 13(1) and (2) on the face of them clearly evidenced non- compliance with the Treaty as they never catered for the specific groupings envisaged in Article 50(1) of the Treaty.

Counsel for the 1st Respondent, on his part, contended that the language of the impugned Rules, specifically Rule 13 which is the basic issue in contention, is essentially the language which is contained in the Treaty itself. He further argued that, in determining whether Rule 13(1) and (2) of Appendix B of the amended Rules of Procedure is in substance inconsistent with the Treaty, it was important to examine whether the said Rules fulfil the essential requirements of Article 50 of the Treaty as set out in the Mbidde case (supra) where the Court stated that those essential requirements are the following:

· “the National Assembly shall conduct an election;

· sitting members of the Assembly are not eligible;

· elected members shall be nine;

· the elected members shall represent as much as feasible

a) the political parties in the National Assembly;

b) shades of opinion;

c) Gender;

d) other social interest groups.

the procedure for election shall be determined by the National Assembly.”

Learned Counsel pointed out that, on 30th May 2012, the duly vetted and nominated seventeen candidates openly campaigned in the Parliament of Uganda and through secret ballot; nine of them were subsequently elected as representatives of the Republic of Uganda to the EALA. That this was done in total compliance with Article 50(1) of the Treaty and neither the Court nor the Applicant can fault the Parliament of Uganda for adopting the language contained in the Treaty.

He further asserted that, as regards the composition of the EALA, it is clear that there are nine members who traverse specific groupings provided for by the Treaty. He submitted that, since the number of possible and prospective persons who could fill those nine seats far exceeds the number of the seats, the emphasis should be on the words “as much as it is feasible.” He then prayed that the Court should find that the persons who were sent to the EALA were as diverse as can be and to that extent, this Court should find that there was conformity with the Treaty.

Counsel further contended that no person from the various political groups and or special interest groups were ever barred directly or indirectly from engaging in the nomination process to contest for the election to the EALA. He strongly contended that the 2012 Rules of Procedure provide for an all-inclusive representation of members, which was and is in substance consistent with the provisions of Article 50(1) of the Treaty. It is his submission that the impugned Rules must be interpreted as being in substance consistent with Article 50(1) of the Treaty in view of the mischief of the 2006 Rules of the Procedure which the 2012 Rules sought to correct.

In the same vein, Counsel prayed that the Court should find from the wording of the Rules that, every Ugandan who wanted to participate in the elections was free to be nominated, the emphasis being on the vote that is a legislative issue, which should be left to the Parliament of Uganda as an Electoral College. He further asserted that the process should not be manipulated in such a way that certain persons are granted slots or quotas as the Applicant seems to insist on.

In conclusion, Counsel invited this Court to find that Rule 13(1) and (2) are substantively consistent with the provision of Article 50(1) of the Treaty and to answer the issue in favour of the 1st Respondent.

Mr. Kaahwa did not submit on this issue.

Counsel for the Interveners associated himself with the 1st Respondent and argued that the 2012 election Rules were lawfully enacted by the Parliament of Uganda within its discretion under, and in compliance with Article 50 (1).

In support of his assertion that the enactment of the 2012 Rules of Procedure and that the electoral process were conducted in conformity with the provisions of the Treaty, Counsel relied on three cases, namely, Anyang’ Nyong’o case, Mbidde case and Hon. Jacob Oulanyah case (supra).

The rest of his submission dealt with matters pertaining to whether the nine interveners were duly elected by the Parliament of Uganda. He barely elaborated on the issue whether the impugned Rules were or not an infringement of Article 50(1) of the Treaty.

Decision of the Court on Issue No.2

It is not in dispute that the Parliament of the Republic of Uganda passed the Rules of Procedure for the election of members of the EALA on 18th May 2012 and these Rules are part of the new Rules of Procedure of Parliament of Uganda, 2012. The provisions of those Rules falling under this Reference are Rule 13 on Election of members of the EALA and Rule 13(1) and (2) of Appendix B to the Rules of Procedure.

For clarity’s sake, we reproduce the said Rules:

“Rule 13: Election of Members of the East African Legislative Assembly

(1) The nine members of the East African Legislative Assembly representing Uganda shall be elected by Parliament not from among members of Parliament, representing as much as feasible, the various political parties represented in the House, shades of opinion, gender and other special interest groups in Uganda.

(2) The election of the members to the East African Legislative Assembly shall be held in accordance with the rules set out in Appendix B to the Rules.”

Rule 13(1) and (2) of Appendix B provides as follows: “Rule 13: Election of Members of the Assembly:

(1) The election of members to the Assembly representing the various political parties and organizations represented in Parliament, shades of opinion, gender and other special interest groups in Uganda shall be conducted after consultation and consensus by the political parties and other Members of Parliament.

(2) Subject to sub rule (1), the Speaker shall, where consensus is not reached put the matter to vote.”

The issue we have to decide on is whether the 2012 Rules of Procedure, particularly Rule 13(1) and (2) are in substance inconsistent with the Treaty, specifically Articles 23(1), 27(1), 38(1) and 50(1).

The essential requirements for election rules to conform to Article 50(1) have been well articulated by this Court in the pre-cited Mbidde case. We have elsewhere reproduced these requirements above.

It is our view that in order to conform to the provisions of Article 50(1), the election Rules must enable the establishment of an electoral process that ensures equal opportunity to become a candidate, full participation and competition for specified groupings and at the end of the process, their effective representation in the EALA.

We agree with Counsel for the 1st Respondent that Rule 13 which specifically deals with the election procedure “mirrors” the wording of Article 50 of the Treaty and we have no doubt that the impugned Rule 13(1) and (2) does not allow sitting members of the Parliament of Uganda to run for election for position in the EALA.

Further, according to the Hansard of the Parliament of Uganda dated 15th, 17th, 22nd, and 30th May 2012 and other documents annexed to the 1st Respondent’s Affidavit in support of the Reference filed on 16th August 2012 by Mrs. Jane L. Kibirige, Clerk to Parliament of the Republic of Uganda, ample details are provided on the process for the enactment of the new Rules and how the electoral process (advertisement on elections, picking nomination forms, submission of nominees, setting up of the verification Committee and voting) was conducted pursuant to the new Rules of Procedure.

As indicated in the said Hansard and evidenced by the aforementioned Affidavit and not denied by the Applicant, a total of seventeen nominees from various political parties and other special interest groups were presented to the Parliament of Uganda constituted as an Electoral College and nine of them were elected to the EALA.

It is also our view that, contrary to the Applicant’s assertion, there is no requirement to be deduced from Article 50(1) of the Treaty that the said election rules should provide for specific slots for the interest groups set out in the Article or that they should provide for guarantees of representation, specifically of women, youth and persons with disabilities or any specified grouping provided for by Article 50(1) where such representation is not “feasible.” This Court is not clothed with the jurisdiction to determine such feasibility which is, in any event, left to the discretion of the National Assemblies of Partner States.

Further, as it was recently decided by this Court in Abdu Katuntu Vs The Attorney General of Uganda & The Secretary General of the East African Community & 9 Interveners, Ref. No. 5 of 2012, p. 29, that:

“ while Article 50 provides for the National Assembly of each Partner State to elect nine members of the EALA, it gives no directions on how the election is to be done, except for the stipulation that the nine must not be elected from members of the National Assembly and as much as feasible, they should represent specified groupings. Instead, it is expressly left to the National Assembly of each partner State to determine its procedure for the election as was held in the Anyang’ Nyong’o case that: ‘... while the Article provides that the nine elected members shall as much as feasible be representative of the specified groupings, by implication, it appears that the extent of feasibility of such representation is left to be determined in the discretion of the National Assembly.’

This is in recognition of the fact that each Partner State has its peculiar circumstances to take into account. Here, we take judicial notice of the fact that the number of political parties in the Partner States differ from one State to another. In some of them, there are more than a dozen political parties, namely, Kenya and Tanzania. In our view, this explains why the framers of the Treaty in their wisdom, for the purposes of uniformity for all the Partner States used the word ‘various’ to allow for the diversity in their circumstances.”

While the holding above specifically refers to political parties, our view is that the same applies to other specified groupings provided for under Article 50(1) of the Treaty as well.

Regarding the issue of consultations and consensus as envisaged by Rule 13(1) and (2) of Appendix B of the impugned Rules, it is important to note that the said Rule flows from Rule 13 of the Rules of Procedure. The latter Rule is itself a creature of Article 50(1) of the Treaty, which obliges National Assemblies of Partner States to determine the procedure for election of EALA members.

We have also carefully perused Appendix B of the Rules of Procedure and it has the following provisions:

1. The procedure for nomination of candidates – Rules 3, 4, 5 and 6;

2. The creation of a Verification Committee – Rules 8, 10 and 11;

3. Campaigns by nominated candidates – Rule 12 (1);

4. Voting by secret ballot – Rule 12(2);

5. Declaration of the results of election – Rule 14;

6. Publication in the Gazette – Rule 15;

7. Transmission of names of elected members to the Secretary General of the East African Community – Rule 16.

Rule 13(1) and (2) of Appendix B aforesaid provides for consultations and consensus in the elections of members to the EALA. This Rule is located between the provisions on voting by secret ballot in Rule 12 and declaration of results in Rule 14. It is unclear to us and no explanation was offered by the 1st Respondent why such procedure should exist at such a crucial stage of the electoral process. We say so because, in any election, consultations and

consensus-building are done in the earliest stages of the electoral process and certainly not after voting. Therefore, any provision that imposes consultations and consensus after voting is unusual.

Further, it is our view that any attempt by the Rules to tamper with the smooth conduct of the electoral process as envisaged by Article 50 of the Treaty and as articulated in the Anyang’ Nyong’o case and in the Mbidde case would amount to a clear violation of the said Article.

We are alive to the fact that in the Katuntu case, this Court noted that the specific prayer in issue was whether all the six political parties represented in the Parliament should be guaranteed a representation in the EALA by the Rules of Procedure. This Court held and as it has also held above that no such a guarantee exists for all political parties represented in Parliament or any other group specified in Article 50(1).

Before we depart from this issue, we would like to reiterate that in the interpretation of the Treaty, we are guided by the Vienna Convention on the Law of Treaties, Article 31(1) which reads:

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Applying the above principle and based on the facts set out herein, it is clear to us that, Rule 13 and the rules in Appendix B, save for Rule 13 (1) and (2), in substance, meet the benchmark set out in Article 50 (1) of the Treaty. Rule 13 of Appendix B as found above is alien to both the spirit and requirements of Article 50(1) of the Treaty.

Although the Applicant adduced no evidence that the impugned Rule 13(1) and

(2) of Appendix B was used in the last EALA elections, we are of the view that the impugned Rule if left in the Rules of Procedure, can derail the electoral process. In that regard, we shall make an appropriate order in this Reference.

Accordingly, the answer to issue No. 2 is that the Rules of Procedure save for Rule 13(1) and (2) of Appendix B, are in substance, consistent with the Treaty provisions.

Issue No. 3:

Whether or not the Rules were gazetted and if not, whether the failure to gazette rendered them null and void

Submissions

The Applicant’s Counsel submitted that the Rules of Procedure were never gazetted as required by the law, while stating that what was published was only a General Notice. He further asserted that the law on the requirement of gazetting the rules stems from Section 16 of the Interpretation Act, Cap 3, Laws of Uganda and that gazetting being a mandatory requirement, failure to do so renders the Statutory Instrument null and void.

It is also his submission that the requirement for gazetting the Rules of Procedure for election of members of EALA 2012 is even more profound and critical in view of the intended beneficiaries, that is, the persons falling in the categories specified in Article 50(1) of the Treaty, who were interested in seeking nomination and election as members of the EALA. He prayed that the Court makes a finding that the Rules of Procedure for election of members of the EALA, 2012 are null and void for want of due publication in the Gazette.

Learned Counsel contended that the said Rules were sufficiently gazetted as required by the law. He further asserted that there is no express and mandatory provision as to the form (whether by a notice or Legal Supplement) by which the said Rules are to be published under the 1995 Constitution of the Republic of Uganda, the Interpretation Act, Cap 3 and or the Rules of Procedure of the Parliament of Uganda, 2012.

Mr Kaahwa did not submit on this issue.

Counsel for the Interveners associated himself with the 1st Respondent’s Counsel and contended that the Rules were sufficiently gazetted as required by the law in Uganda.

Decision of the Court on Issue no. 3

As the issue stands and according to the submissions of Counsel for the Applicant, the latter seeks a declaration that no valid Rules of Procedure for the election of members of the East African Legislative Assembly, 2012 were passed by the Parliament of Uganda since they were not duly gazetted, and that therefore, the said Rules are null and void.

Both Counsel for the Applicant and the 1st Respondent have indicated in their respective submissions that the matter of gazetting laws and rules after their enactment by the Parliament is governed by relevant Ugandan laws, mainly the Constitution of the Republic of Uganda and the Interpretation Act, Cap 3. It goes without saying that, consequently, the competent Ugandan institutions provided for by the said laws should resolve questions arising out of this matter.

The Court therefore, declines the Applicant’s invitation to determine this issue, which, manifestly, falls outside its jurisdiction as provided for by Articles 23 and 27 as read together with Article 30 of the Treaty.

Issue No .4

Whether in view of the Court’s finding on issues 2 and 3, any acts, decisions made or elections conducted by the Parliament or Government of Uganda pursuant to the Rules are null and void.

Submissions

The Applicant’s Counsel invited the Court to interpret Article 50(1) of the Treaty to determine the Applicant’s contention that the impugned Rules are a nullity and inconsistent with the Treaty for the reasons given in his submissions on issues 1 and 2.

On the contrary, Counsel for the 1st Respondent reiterated his submissions made under issues 2 and 3, and maintained that the Rules of Procedure for the election of members of the EALA are substantially consistent with the provisions of Article 50(1) of the Treaty. He further contended that since the said Rules were duly gazetted and considering his submissions on issues 2 and 3, all the acts and elections carried out under the impugned Rules were and are valid.

Mr. Kaahwa did not submit on this issue.

For his part, Counsel for the Interveners contended that under Article 52 of the Treaty, this Court is not vested with the jurisdiction to entertain issues relating to the election of members of the EALA since those matters are reserved to the National Assemblies of Partner States. He then referred the Court to Anyang’ Onyang’o and Mtikila cases in support of his stance.

Decision of the Court on Issue No. 4

In light of our findings on issue No. 2, we reiterate our decision that the Rules of Procedure for election of members of the EALA, save Rule 13(1) and (2) of Appendix B, were in substance consistent with the provisions of Article 50(1) of the Treaty. As for issue No. 3, we have resolved that it did not fall under the jurisdiction of the Court under Articles 23 (1) and 27(1) as read together with Article 30 of the Treaty. Furthermore, guided by the said Articles as read together with Article 52 of the Treaty, we restate our view that, matters raised under issue No.4 revolve around the election of members of the EALA conducted by the Parliament of Uganda and therefore, questions related thereto are within the ambit of Article 52 of the Treaty and have to be dealt with by the competent institution of the Republic of Uganda. Under the Ugandan law, that jurisdiction is reposited in the High Court of Uganda.

For the above reasons, we answer issue No.4 in the negative.

Issue No. 5

Whether the parties are entitled to the remedies sought

Counsel for the Applicant contended that the Applicant is entitled to the remedies sought.

Counsel for the 1st Respondent, on his part, asserted that the Applicant is not entitled to the reliefs sought in the Reference.

The 2nd Respondent’s Counsel brought to the Court’s attention the matter of cause of action and invited the Court to establish whether or not he is the proper party before the Court. Relying on authorities, namely, P.C. Mogha, The Law of Pleadings in India (Eastern Law House, Calcutta 1989); N.S. Brindra’s Pleadings and Practice (8th ed), Allahabad 1997; Mulla: The Code of Civil Procedure, (16th ed) by Solil Paul and A. Srivastava; EACJ Appeal No. 1 of 2011: The Attorney General of the Republic of Kenya Vs Independent Medical Legal Unit and EACJ Appeal No. 4 of 2012: Legal Brains Trust (LBT) Limited Vs The Attorney General of the Republic of Uganda), he asserted that the matters before the Court in the Applicant’s case do not evince or show a cause of action envisaged under the Treaty to necessitate proceedings against him. He then pointed out that it is only in her submissions that the Applicant alleged that the 2nd Respondent violated the Treaty. He asserted that the Applicant’s conduct, which is a violation of Rule 38 prejudiced him and took him by surprise since it denies him the chance to respond to such allegations in his pleadings. In support of his stance that parties are bound by their pleadings and that the Court cannot grant relief that had not pleaded, he referred the Court to Interfreight Forwards (U)Ltd Vs East African

Development Bank [1009-1994] EA 117, 125, Order JSC and Captain Harry Vs Caspar Air Charters Limited [1956] EACA 139, 140.

It is his submission that given the chronology of actions vigilantly taken by the 2nd Respondent within his lawful province of duty, which actions have not been contested, no failure on his part can be alleged as far as the process of election of the EALA by the Parliament of Uganda is concerned (see Mbidde case).

He invited the Court to take note of the fact that given his role and taking into account the relevant provisions of the Treaty, the Constitution of the Republic of Uganda and the Parliament Elections Act of Uganda, he had no cause whatsoever, right obligation to take any cause of action other than the one he took.

He therefore submitted that the Applicant was not entitled to any remedy sought against the 2nd Respondent and that the Court should dismiss the Reference against him with costs.

With regard to declarations and orders sought by the Applicant, the Interveners’ Counsel submitted that the Mbidde case has examined the law on declaration and invited the Court to take into account the Court’s findings in that judgment.

Learned Counsel further submitted that EALA members were already sworn in and the Assembly has been in place since the elections were held and that the doctrine of prospective annulment applies in such a situation, referring the Court to Calist Mwatela & 2 others Vs EAC, Application No. 1 of 2005.

It is also the Counsel’s submission that the recognition of elected members of the EALA is a function of the law as provided under the Treaty and the Rules of Procedure. That, given the chronology of actions taken by the 2nd Respondent within his lawful province of duty, and contrary to the Applicant’s assertions in

his pleadings, the 2nd Respondent was bound by the Treaty and the Rules of Procedure to take cognizance of the election of all members of the EALA as duly communicated to him.

Mr. Semuyaba further submitted that, following the developments in the Parliament of the Republic of Uganda and in the absence of any challenge of elections of members of the EALA or any other impediment, the 3rd EALA with duly elected members from all the Partners States was constituted on 5th June 2012.

Counsel therefore asserted that the Applicant was not entitled to the reliefs sought in the Reference and prayed that the same be dismissed with costs.

Decision of the Court on Issue No. 5

From the pleadings and the submissions, the Applicant seeks declarations and orders:

a) “That the said Rules of Procedure for election of members of the EALA 2012 are null and void;

b) That the said Rules are inconsistent with or otherwise an infringement of the provisions of Articles 23(1), 27(1), 38(1) and 50(1) of the Treaty;

c) That the nomination and subsequent election of the members of the EALA by the Parliament of Uganda conducted under or in pursuance of the said Rules is not only unlawful but an infringement of the Treaty and therefore ought to be set aside;

d) That the 2nd Respondent ceases to recognize the persons elected by the Parliament of Uganda to the EALA;

e) That the 1st Respondent be ordered to cause the enactment of Rules of Procedure for the Election of members of the EALA that are in conformity with Article 50(1) of the Treaty;

f) That an order that fresh nominations and elections of the EALA members from Uganda be conducted under proper Rules of Procedure; and

g) That the Respondents be ordered to pay the costs of the Reference.”

We have considered Counsel’s submissions and taken into consideration the pleadings and evidence on record. In light of our findings and conclusions on the issues herein, we make the following declarations and orders:

1. Prayers (a), (b) and (e) are disallowed, save for our findings with regard to Rule 13 (1) and (2) of Appendix B of the 2012 Rules of Procedure. Consequently, the Court orders the 1st Respondent to cause the amendment of Rule 13 (1) and (2) of Appendix B of the 2012 Rules of Procedure to bring it into conformity with Article 50(1) prior to the next EALA elections.

2. Prayers (c), (d) and (f) are disallowed.

3. On costs, the Applicant has partially succeeded and shall be awarded a quarter of the taxed costs to be borne by the 1st Respondent.

CONCLUSION

In conclusion, the Reference is determined in the above terms. The Applicant shall be awarded a quarter of the taxed costs to be borne by the 1st Respondent

It is so ordered.

Dated, Delivered and signed at Arusha this 29th day of November, 2013

….…………………..……………..

JEAN BOSCO BUTASI PRINCIPAL JUDGE

 

….…………………..……………..

MARY STELLA ARACH-AMOKO DEPUTY PRINCIPAL JUDGE

 

….…………………..……………..

JOHN MKWAWA JUDGE

 

….…..…………………………….

ISAAC LENAOLA JUDGE

 

….…..…………………………….

FAUSTIN NTEZILYAYO JUDGE

Author
Judgment date
Case number
Reference 3 of 2011
Court name
East African Court of Justice
Judge
Butasi JA
Arach-Amoko JA
Lenaola JA
Search summary

IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

FIRST INSTANCE DIVISION

(Coram: Jean-Bosco Butasi, PJ, Mary Stella Arach-Amoko, DPJ, Isaac Lenaola, J)

REFERENCE NO.3 OF 2011


EAST AFRICA LAW SOCIETY …………………………………………………………………… APPLICANT

VERSUS

THE ATTORNEY GENERAL OF UGANDA SUED ON BEHALF OF THE REPUBLIC OF

UGANDA …………………………………………………………………………………….. 1ST RESPONDENT

THE ATTORNEY GENERAL OF KENYA SUED ON BEHALF OF THE REPUBLIC OF KENYA

……………........................................................................................ 2ND RESPONDENT

THE SECRETARY GENERAL EAST AFRICAN COMMUNITY …………….. 3RD RESPONDENT

DATE: 4TH SEPTEMBER, 2013


RULING

This Reference was scheduled for hearing on 3rd September, 2013 by way of highlighting of submissions filed by the Parties but an issue was raised by the Respondents which required resolution in limine; whether the Reference is moot and should be struck off in view of the decision of the Appellate Division of this Court on 15th April, 2013 in Appeal No.2 of 2012, Attorney General of the Republic of Uganda vs Omar Awadh and Others.

In that Appeal, the Appellate Division determined that Reference No.4 of 2011 lodged by Omar Awadh and Others was time barred under Article 30(2) of the Treaty for the Establishment of the East African Community and subsequently, the Applicants withdrew the said Reference on 3rd September, 2013.

SUBMISSIONS BY THE RESPONDENTS

The Respondents made the straight forward argument that the present Reference and Reference No.4 of 2011 all arise from the same set of facts and once the latter was withdrawn on account of time bar, then the present one ought to be similarly withdrawn and in the alternative, be struck off. 

The facts are that in both References, the Applicants were allegedly arrested in the Republic of Kenya and renditioned to the Republic of Uganda where they were charged with various criminal offences related to the terrorism bomb attacks that took place on 11th July, 2010 at Kyadondo Rugby Grounds and the Ethiopian Restaurant (Kabalagala) in Kampala, Uganda where 82 lives were lost. 

Further, that the Applicant, the East Africa Law Society, by its pleadings and nature of membership was aware of the attacks and the subsequent arrests of Omar Awadh and the other suspects of the bomb attacks. That, therefore, since the Reference was filed on 31st May,2011 it was time-barred under Article 30(2) of the Treaty as it was filed close to one year after the action complained of took place and should be struck off as a consequence and in line with the decision in Appeal No.2 of 2012

SUBMISSIONS BY THE APPLICANT

Mr. Onsongo, learned Counsel for the Applicant denied that the Reference was timebarred and urged the point that they only came to know of the alleged arrest and rendition of Omar Awadh and others sometime in May 2011 and promptly filed the instant Reference.

That, in any event, Reference No.4 of 2011 was premised on a completely different cause of action and has no connection whatsoever with Reference No.3 of 2011 and that neither the decision in Appeal No.2 of 2012 nor the withdrawal of Reference No.4 of 2011 should affect the determination of Reference No.3 of 2011

Counsel also urged this Court to adopt a progressive, non-technical and accommodating interpretation of Article 30(2) of the Treaty and proceed to determine the Reference on its merits. 

DETERMINATION

We have considered the rival submissions tendered, and we have carefully read the Judgment of the Appellate Division in Appeal No.2 of 2012 as well as the pleadings and written submissions of the Applicant and the 2nd and 3rd Respondents in this matter.

Out of abundant caution, we have also perused the record in Reference No.11 of 2011, Mbugua Mureithi Wa Nyambura vs Attorney General of Uganda and the Ruling of this Court in Application No.7 of 2012, Attorney General of Uganda vs East Africa Law Society.

We shall make references to them later in this Ruling.

In any event, our opinion on the issue before us is as follows:

Article 30 (2) of the Treaty provides that:

“The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in absence thereof , of the day in which it came to the knowledge of the complainants, as the case may be”.

Mr. Onsongo in submissions categorically stated that the Applicant is relying on the second limb in making its case and if that be so, then the date when the actions complained of came to the knowledge of the Applicant is crucial.

When pressed to give a precise date in that regard, learned Counsel maintained that it was sometime in May, 2011 just prior to the filing of the Reference. With respect, the above argument is not borne out by matters on record in this and other matters. We say so, because, in the Reference itself, the Applicant at paragraphs 4, 5, 6, 7, 8, 9 and 10 sets out with clarity the chronology of events starting from the terrorist bomb attacks and the arrest and renditioning of the Kenyan suspects, to their arraignment in Court in the Republic of Uganda.

At paragraph 11 of the Reference, the Applicant then stated as follows:

“The above mentioned violations of human rights were widely reported in both the print and electronic media all over the World and in East Africa in particular that they became so notorious that every person including the 3rd respondent had notice or must have had notice of them”. [Emphasis added]

At paragraph 12 it is stated as follows:

“Further to paragraph 11 above, the Applicant, the Law Society of Kenya and the Uganda Law Society duly notified the Respondents that the human rights violation as stated above against the Kenyan Citizens were in contravention of the Constitution of Kenya read together with the Treaty for Establishment of East African Community and other Regional and International Human Rights Conventions to no avail. The Respondents were thus, put on notice that their continued actions and inactions would invite legal intervention”. [Emphasis added].

Further, one of the annextures in furtherance of the above position is “annexture 8” to the Reference which is a Press Release by the Uganda Law Society relating to the arrest of one Mbugua Mureithi, Advocate on 15th September, 2010 on his way to Kampala “for a Court hearing of terrorism cases relating to his client(s), some of whom are Kenyan Nationals”.

The Press Release indicated that it was being issued by the “Uganda Law Society together with its counterparts of Kenya and East Africa Law Society”; the latter being the present Applicant. 

When pressed to indicate the date of the Press Release, Mr. Onsongo pleaded ignorance of it but in Reference No.11 of 2011, Mr. Mbugua Mureithi, Advocate pleaded that he was actually arrested on 15th September, 2010 when he visited Uganda for the third time since the alleged renditioning of his clients to Uganda. On that day, he was apparently on his way to Court where the rendition cases were being mentioned.

It follows, therefore, that reading paragraph 11 above together with paragraph 13 of the Reference where the Applicant indicated that its evidence shall include “print media reports” and “the media joint statements of the Uganda law Society, the Law Society of Kenya and the East Africa Law Society”, together with the uncontroverted assertion by Mr. Mureithi, the subject of the Press Release, it is not difficult to conclude that on or around the 15th September, 2010, the Applicant had knowledge of the matters complained of or at least knew of them in the month of September, 2010. 

But, suppose in fact that while the matter was of such notoriety as pleaded, at paragraph 11 of the Reference, the Applicant in its corporate nature had no knowledge of the actions complained while “every person including the 3rd Respondent had notice or must have had notice of them”? In that case, a contradiction is apparent because in its submissions filed on 27.4.2012, the Applicant argued that the particulars of the cause of action indicate that it is of a “continuing nature” and that there cannot be a limitation of time on the 3rd Respondent’s failure to investigate the Applicant’s complaints.

If the above be its position, which is obviously mistaken, then we can only resolve the contradiction by holding firmly that all evidence before us points to the fact that the Applicant knew or ought to have known of the actions complained of by September, 2010.

Besides, it is now a very trite principle of law that Parties are bound by their pleadings and any evidence led by the Parties which does not support the averments in the pleadings or which is at variance with the averments in the pleadings must be disregarded by the Court. (See Jani Properties vs Dar-es-Salaam City Council [1966] E.A. 281).

It is also well settled that, submissions, no matter how eloquent, can never form part of evidence in any litigation.Having found as above, we must then juxtapose the above finding with the Judgment in Appeal No.2 of 2012 and Application No.7 of 2012. In the latter, this Court granted a stay of the present Reference pending the hearing and determination of the Appeal aforesaid.

In doing so, we stated inter alia as follows:

We share the Respondent’s view that this Application should have been raised at the Scheduling Conference and that would also have saved time. In the interest of justice, however, this Court must consider the other factors to grant or to dismiss the Application.

The first is the possibility of conflicting decisions. It is our considered view that a stay may be granted where there are multiple proceedings pending in both Divisions of the Court and the decision of the Appellate Division might affect the outcome of the other proceedings. In the instant Application, we think that due to the nexus between both References as shown above, the outcome of Appeal No.2 of 2012 might have an impact on Reference No.3 of 2011. At this stage we cannot say that such impact will be substantial or not, but it suffices that we foresee an impact. We believe that a common sense justification to a stay such as sought here, is to aim to avoiding conflicting decisions and the possibility of rendering some of them nugatory. Consequently, we find it prudent to await for the outcome of Appeal No.2 of 2012”.

The impact that we foresaw above is now the subject of this Ruling and Appeal No.2 of 2012 was eventually determined and the Appellate Division inter-alia rendered itself as follows: 

“The Appellate Division of this Court has carefully considered the rival submissions of the Parties in support of their respective positions. First and foremost, we find (supported by the Parties’ own affirmation), that the acts complained of (such as the arrest, rendition and detention of the Respondents) happened between 22nd July and 17th September 2010; and that those acts were well known by the Applicants/Respondents, right from the inception of the various acts.

In the above regard, it is plainly evident that both parties have no dispute concerning the fact that the Applicants promptly filed their legal challenges on behalf of their relatives (the Respondents) in the domestic Courts namely, the High Court of Kenya and of Uganda, seeking their release. Later on, they lodged their Reference in this Court, in June 2011. This was more than one year after the expiry of the two-month time limit prescribed by the Treaty”.

The above holding is binding on this Court and particularly so because the Respondents in the Appeal are the subject of the present Reference and their Advocate was one, Mbugua Mureithi, who is also mentioned in the Press Release issued by among others, the present Applicant, soon after his arrest on the 15th September, 2010. We must state here that it is absolutely inconceivable for the Applicant and the Uganda Law Society to demand in the Press Release certain actions regarding Mr. Mureithi months after his arrest and to also demand certain actions regarding his clients in May 2011 as Mr. Onsongo would like us to believe. 

We also deliberately google-searched the Press Release aforesaid and although not necessarily an authoritative source of information, we obtained the following information: 

i) at http://www.frontline defender.org/node/13353, the Press Release was first posted on 17th September, 2010.

ii) at http://www.fidh.org/arrest - and - arbitrary – detention of 8514, the Press Release was first posted on 22nd September, 2010.

It is also obvious to us, therefore, that having been Party to the Press Release, we reiterate our finding that the East Africa Law Society was aware of the actions  complained of in September, 2010. 

Having established that the Applicant knew of the alleged renditioning of Omar Owadh and Others way before May, 2011 and having established the nexus of facts between References Nos.3 and 4 of 2011, it only follows that the Reference was filed outside the two-months period envisaged by Article 30(2) of the Treaty and to proceed to hear and determine Reference No.3 of 2011 would be superfluous and clearly an act in defiance of the Judgment in Appeal No.2 of 2011. This Court declines the invitation to follow that path.

Accordingly, we agree with the position taken by the Respondents and the Reference herein is hereby struck off.

As to costs, since Reference No.4 of 2011 together with all resultant Applications were settled with no orders as to costs, let each Party also bear its costs in the present Reference.

It is so ordered.

Dated, Delivered and Signed at Arusha this 4th day of September, 2013

….…………………..……………..

JEAN BOSCO BUTASI

PRINCIPAL JUDGE

….…………………..……………..

MARY STELLA ARACH-AMOKO

DEPUTY PRINCIPAL JUDGE

….…..…………………………….

ISAAC LENAOLA

JUDGE

Author
Judgment date
Case number
Reference 1 of 2012
Court name
East African Court of Justice
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THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA

(CORAM: Johnston Busingye PJ, Mary Stella Arach‐Amoko DPJ; and Isaac Lenaola J))

APPLICATION NO 5 OF 2012

(ARISING FROM REFERENCE NO.1 OF 2012)

BETWEEN

 

TIMOTHY ALVIN KAHOHO………………………..………………………..…………APPLICANT

 

AND

 

THE SECRETARY GENERAL OF THE

EAST AFRICAN COMMUNITY……………………………………………………RESPONDENT

 

DATE: 19TH JULY, 2012

 

RULING OF THE COURT

This is an application brought by Notice of Motion under Articles 38(2) and 39 of the Treaty for the Establishment of the East African Community (the “Treaty” ), and Rules 21, 41 and 73 of the East African Court of Justice Rules of Procedure, 2010. The Applicant is Timothy Alvin Kahoho, a citizen of Tanzania resident in Dar es Salam. The Respondent is the Secretary General of the East African Community (the “EAC”). He is sued in his capacity as the Principal Executive Officer of the EAC.

The Applicant filed Reference No. 1 of 2012 praying for orders that the Summit directives set out in paragraphs 6 and 10 of the communiqué issued at the 13th Ordinary Meeting in Bujumbura, Burundi be declared null and void as they were issued in breach of Articles 6,7 and 123(6); 73 and 138 of the Treaty.

Pending determination of the Reference, however, the Applicant has filed the instant application seeking for an interim order to restrain the Respondent, his agents and servants from executing the said activities, namely:

i) the purported approval of the Protocol on Privileges and Immunities for East African Community, its Organs and Institutions for conclusion ;

ii) Producing a road map for establishing and strengthening institutions identified by the Team of Experts as critical for the functioning of the Customs Union, Common Market and Monetary Union;

iii) Formulating an action plan for the purpose of operationalising the other recommendations in the report of the Team of Experts;

iv) Proposing an action plan on and a draft model structure of the East African Political Federation for consideration by the Summit at its 14th Ordinary Meeting.

The Applicant also prays for the costs of the application and any other relief(s) this honourable Court may deem fit to grant.

The grounds for the application are set out in the affidavit in support of the application sworn on the 16th May 2012 by the Applicant wherein he states that he was prompted to file this application following a report of the 24th Extraordinary Meeting of the Council of Ministers Ref. EAC/EX/CM24/2012, convened by the Respondent in Arusha between 20th to 26th April 2012, which he came across on the internet recently, where the Respondent has already re‐ allocated USD 109, 020.00 for undertaking the project of formulation of the Model Work Plan towards the EAC Political Federation.

This was after he had on the 20th January 2012, lodged Reference No. 1 of 2012 in this Court.

He contends that by calling that meeting, the Respondent violated Article 38 (2) of the Treaty which provides that where a dispute has been referred to the Court, the Partner Stares shall refrain from any action which might be detrimental to or aggravate it. He argues therefore that unless restrained by an interim order, the Respondent, his agents and servants will carry out the disputed functions before the disposal of the Reference, thereby rendering the relief sought therein nugatory.

The Respondent opposes the application for the reasons set out in the affidavit in reply sworn on his behalf by Mr. Jean Claude Nsengiymunva, the EAC Deputy Secretary General (Finance and Administration), on the 9th July 2012 wherein he asserts very strongly that the Respondent has not breached the Treaty at all as alleged by the Applicant in that :

i) The Summit decision regarding approval of a Protocol on Immunities and Privileges of the EAC Organs and Institutions is consistent with Article 11(1) and does not breach Articles 73 and 138 of the Treaty but implements them when read together with Article 151 of the Treaty to create a common platform to guide the issue of immunities and privileges in all agreements signed by the Secretary General with the governments of the Partner States;

ii) The Summit directive to the Secretariat to produce a road map for establishing and strengthening the Institutions identified by the Team of Experts as critical for the Customs Union, the Common Market and Monetary Union is consistent with the functions of the Secretariat as set out in articles 71(b), (c), (d) and (l) of the Treaty;

iii) The Summit directive to the Secretariat to formulate an action plan to operationalise the recommendations in the Report of Experts is consistent with the functions of the Secretariat under Articles 71(b) and (d) of the Treaty;

iv) The Summit directive to the Secretariat to propose a model structure for the EAC Political Federation for consideration by the Summit at its 14th Ordinary Meeting is consistent with the functions of the Secretariat under Articles 71(b), (c), (d) and (l) of the Treaty.

v) The Summit did not contravene Articles 6, 7, and 123(6) of the Treaty in that under Article 123(6) of the Treaty, the process of Political Federation was actually initiated by the Council when it appointed a Team Of Experts whose recommendations the Secretariat is now improving on.

vi) The actions of the Respondent are consistent with its mandate and are not detrimental to the resolution of the dispute.

He submitted that the USD 109, 020.00 had in fact already been allocated and utilized, pursuant to Council Directive Ref. EAC/CM24/Decision 21, towards formulating a Model Work Plan for the EAC Political Federation and the issue had been overtaken by events.

He argued that the Reference is, for the foregoing reasons, therefore misconceived and it should be dismissed with costs to the Respondent.

For the purposes of this application, it is necessary, in our view, to reproduce right from the outset, the contents of the impugned paragraphs 6 and 10 of the communiqué that has caused grievance to the Applicant. It stated that:

“6.The Summit approved the Protocol on Immunities and Privileges For the East African Community, its Organs and institutions for conclusion.

…..

10. The Summit considered and adopted the Report of the team of Experts on Fears, Concerns and Challenges on the Political Federation. The Summit noted that the Team of Experts had studied and made recommendations for addressing the Fears, Concerns and Challenges. The Summit mandated the Secretariat to:

I.   Produce a road map for establishing and strengthening the Institutions identified by the Team Of Experts as critical to the functioning of a Customs Union, Common Market and Monetary Union.

II.    Formulate an action plan for purposes of operationalising the other recommendations in the Report of the Team of Experts; and

III.   Propose an action plan on and a draft model of the structure of the East African Political Federation for consideration by the Summit at its 14th Ordinary Meeting”.

The Applicant appeared in person, while Mr. Anthony L. Kafumbe, a Legal Officer at the EAC Secretariat, appeared for the Respondent.

Both parties adopted the written submissions they had filed in Court where they basically repeated the averments in their respective pleadings and the affidavits on record. They then made brief supplementary oral submissions.

In addition to his written submissions, the Applicant emphasized that the Respondent has continued to implement the activities he is disputing even after he had lodged his documents in Court. That is why he is requesting this Court to issue the order so that the Respondent is prevented from calling the Council of Ministers to be handed recommendations and the Model Structure of the Political Federation for consideration by the Summit at its 14th Ordinary Meeting. Article 38(2) of the Treaty is, according to the Applicant, mandatory and clear. It does not require a party to first obtain a temporary injunction as alleged by the Respondent’s Counsel. In support of this proposition, he relied on the decision of this Court in The E.A Law Society and 3 Others vs The A.G of Kenya and 3 Others, Reference No. 3 of 2007.

On his part, Mr. Kafumbe vehemently opposed the application on the ground that it did not meet the conditions for the grant of the order sought as set out in the celebrated case of Giella v Cassman Brown Ltd which this Court adopted in The East African Law Society vs The Attorney General of Kenya (supra)which are that: the Applicant must show a prima facie case with a probability of success; secondly, an injunction will not be granted unless the Applicant might otherwise suffer an irreparable injury that cannot be compensated by an award of damages; and lastly, when court is in doubt, it will decide the application on the balance of convenience.

He submitted that the Applicant had not established that he has a prima facie case with a probability of success. He is challenging functions that the Treaty confers on the Summit and the Secretariat. The Respondent has, however, shown that the Team of Experts with which the Applicant is very uncomfortable was not appointed by the Respondent but by the Council.

On the second condition, Mr. Kafumbe argued that the position of the Respondent is that this is a case which can be compensated by way of damages which the Applicant has already asked for. He will not therefore suffer irreparable injury if the injunction is refused.

Lastly, on the balance of convenience, Mr. Kafumbe submitted that the USD 109,020.00 has not only been allocated but has been utilized by the Secretariat which has already formulated an action plan and drafted a proposed Model Structure of the Political Federation ready for consideration by the Summit. That since the activities complained of by the Applicant have been implemented, the balance of convenience favours the Respondent.

He asked the Court to dismiss the application with costs, for these reasons.

The Applicant insisted, in his brief response, on his prayers. He emphasized that he had also filed the Reference because he is aggrieved by the said directives in his capacity as a concerned citizen of East Africa who cannot sit by and look on as the Treaty is being violated and the tax payers’ money is being squandered for implementation of an illegal directive.

He contended that the central issue in his application is whether the 13th Summit of the Heads of States breached Articles 6, 7, 73, 123 (6) and 138 of the Treaty in issuing the impugned directives directly to the Secretariat. The Respondent should not therefore be allowed to proceed with those activities in preparation for the next Summit before this Court determines the issue.

He disagreed with the Respondent’s assertion that the application was overtaken by events and argued that the Respondent’s Counsel had stated in his submission that the Secretariat is duly executing its mandate under the Treaty and the outcome of the exercise will in the fullness of time be brought to the attention of the Council and the Partner States.

According to the Applicant, the process is still ongoing because everything will be handed to the Council for submission to the next Summit of Heads of State, therefore, the Respondent will be asking for allocation of more funds to undertake the process. He maintained the prayer that if this court does not grant the interim order requested for, the reference would become irrelevant since the impugned activities would have been discharged.

The clear purpose of the application is for the grant of an interim injunction to prevent the implementation of directives contained in Paragraphs 6 and 10 of the communiqué issued by the Summit at the close of the 13th EAC Heads of States Meeting held in Bujumbura, Burundi on the 12th November 2011, until this Court determines whether they infringe the articles of the Treaty specified in the Reference. Undoubtedly this court has the power to issue the order sought, pending determination of the Reference filed in the court.

The grant or refusal to grant a temporary injunction is an exercise of the Court’s judicial discretion which must be exercised judiciously. The purpose of a temporary injunction is to maintain the status quo. The conditions for the grant of a temporary injunction are well settled in our jurisdiction although they have been stated in various terms over the years. We state them below:

a) For a temporary injunction to issue, the applicant must show to the satisfaction of the court that he has a prima facie case with a probability of success.

b) An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.

c) If the Court is in doubt, it will decide the case on the balance of convenience. (see: Giella v Cassman Brown & Co. Ltd (1973) E.A 358 followed by this court in a number of cases including Professor Peter Anyang’ Nyongo And 10 Others v The Attorney General Of The Republic of Kenya and 5 Others, Ref. No. 1 of 2006; East African Law Society and 4 Others v The Attorney General of the Republic of Kenya and 3 Others, Application No. 9 of 2007; and more recently, in Mary Arividza and Okotch Mondoh v The Attorney General of The Republic of Kenya and The Secretary General Of the EAC, Application No. 3 of 2010.)

The conditions for granting an interlocutory injunction are sequential so that the second condition can only be addressed if the first one is satisfied and when the court is in doubt the third one can be addressed.(See: Kenya Commercial Finance Co. Ltd. V Afraha Education Society [2001] E.A 86 at p. 87.

It is no function of this court at this stage, of course, to delve into the merits of the Reference or to determine difficult questions of law which will be determined after a full hearing of the Reference and detailed arguments based on the facts and applicable law.

The sole issue before us for determination is thus, whether, in the circumstances, an interim restraining order should be issued.

We have carefully perused the pleadings of both parties in the Reference and in the Motion. We have also considered the very able submissions by the Applicant as well as the one of Counsel Kafumbe together with the authorities cited and the law applicable to the matter before us.

With regard to the first condition, the court must be satisfied that the claim is not frivolous or vexatious, in other words, that there are serious questions to be tried. (See: American Cynamid v Ethicon [ 1975] ALL ER 504 AT 505).

From the material before us, we note that the Applicant has raised in his pleadings and submissions the contention that the probability of success of his Reference lies in the fact that nowhere in the Treaty is it indicated that the Summit can mandate any of its functions directly to the Secretariat. He asserts that, under the Treaty, the Summit must always pass through the Council or the Secretary General and not directly to the Secretariat. His contention is that the directive by the Summit to the Secretariat is thus a breach of the various articles, including 6, 7, 73, 123(6) and 138 and of the Treaty.

On his part, the Respondent contends that there is no breach of the Treaty by the Summit because the Treaty confers on the Summit and the Secretariat the functions the Applicant is challenging. By issuing the impugned directives, the Summit thus acted within its mandate under the Treaty, particularly Article 11(1) read together with Article 151; 71(b), (c), (d) and (l) as well as Article 123(6).

From the foregoing, it is apparent that the Applicant is challenging the process not the substance of the Summit directives in question. Resolution of this dispute will necessarily involve the interpretation of those specified Articles of the Treaty and the court will have to address itself, inter alia, to the following issues:

i) Whether the Summit directives contained in paragraphs 6 and 10 of the Communiqué issued by the Summit at its 13th Ordinary Meeting held at Bujumbura breached Articles 6, 7, 73, 138, and 123(6) of the Treaty as alleged by the Applicant;

ii) If so, what effect, if any, would it have on the implementation thereof by the Secretariat?

These issues are in our view, neither frivolous nor vexatious. They require interpretation by the Court of the Articles of the Treaty mentioned. Consequently, we have no doubt that the applicant has crossed the first hurdle.

As to whether the Applicant and East Africans will suffer irreparable injury if the injunction is not granted, with due respect to him, we do not find this from the affidavit on record. Injury, whether reparable or irreparable cannot be presumed. It is a question of evidence and must be proved. In the instant application, the Applicant merely pleaded that the Reference will be rendered nugatory or, useless, to use his own words, if this application is refused, because the Respondent will go ahead and implement the impugned directives, to the detriment not only of himself but of East Africans as well . However, he did not show us that if the directives are implemented, it will necessarily result in irreparably injury to him or to anybody else. As for injury to East Africans we can only remind the Applicant that he filed this Reference in his personal capacity, not in a representative capacity and he can only speak for himself.

His assertion that the injury he fears is that some Head of State might dream up something one night, wake up the following morning and implement it, was, with due respect, a hypothetical statement, made from the bar and was unsupported by the evidence on record. We also failed to find any direct relationship to the facts of the instant application. It amounts in our view, to nothing more than fear mongering.

That being so, we find that the Applicant has failed to meet the second condition for the grant of the order sought.

Balance of convenience means the prejudice to the Applicant if the injunction is refused weighed against the prejudice to the Respondent if the order is granted. A close examination of the pleadings and the evidence before us shows that the Secretariat has gone a long way in the process of implementing the impugned decision and directive. This simply means that the status quo intended to be maintained by the application is no longer in place. Above all, when the totality of the circumstances of the case are examined, we find that stopping the process at this stage would in our view occasion more injury to the citizens of East Africa whom the Applicant purports to be fighting for since a substantial sum of tax payers money has already been spent on the process. As we stated earlier, the Applicant seems to be challenging the procedure not the substance of the directives in question. We are accordingly of the considered view that the balance of convenience favours the Respondent.

As for the provisions of Article 38 (2) of the Treaty, we hold the view that every case should be determined on its own facts since the grant of an injunction is a function of the Court in exercise of its discretionary power. Therefore Article 38(2) cannot be seen to be removing that long held position without expressly saying so. Further, in the authority the Applicant referred to us, that is, The East African Law Society and 3 Others and the Attorney General Of Kenya and 3 Others; Reference No. 3 of 2007, the Applicant did not show us, neither were we able to find where the Court held that Article 38(2) acts as an automatic injunction once a dispute has been referred to the Court or to the Council.

In the result, and for the reasons given herein, we find that the application does not meet the conditions for the grant of an interim order. It is accordingly dismissed. The costs of the application shall abide the outcome of the Reference.

However, in order to examine the fears expressed by the Applicant, the Registrar is requested to ensure that the hearing of the Reference is fast tracked.

 

It is so ordered.

Dated and Delivered at Arusha on this ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ day of July, 2012

 

 

……………………………………………………

JOHNSTON BUSINGYE

PRINCIPAL JUDGE

 

………………………………………………………

MARY STELLA ARACH‐AMOKO

DEPUTY PRINCIPAL JUDGE

 

………………………………………………….

ISAAC LENAOLA

JUDGE

 

Author
Judgment date
Case number
Reference 10 of 2011
Court name
East African Court of Justice
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